Div 4Constitution of Tribunal and its decision‑making processes

Division 4—Constitution of Tribunal and its decision‑making processes 19—Constitution of Tribunal (1) Subject to this section, the President may determine, in relation to a particular matter or matters, or particular classes of matters, which member or members of the Tribunal will constitute the Tribunal. (1a) The Tribunal sitting as the South Australian Employment Court may only be constituted by members of the Tribunal who are also judges or magistrates (sitting alone or in any combination as the President thinks fit). (2) The Tribunal is not to be constituted by more than 3 members. (3) A Full Bench of the Tribunal consists of— (a) when sitting as the South Australian Employment Court—3 Presidential members; or (b) when acting as an industrial relations commission—3 members of which at least 1 must be a Presidential member. (4) The President may, as he or she thinks fit— (a) alter who is to constitute the Tribunal for the purpose of dealing with a matter, or anything relating to a matter, and the Tribunal as constituted after the alteration can have regard to any record of the proceedings of the Tribunal in relation to the matter before the alteration or any evidence taken in the proceedings before the alteration; (b) provide that different aspects of the same matter may be dealt with by different members of the Tribunal, and the members of the Tribunal may then come together and have regard to any evidence taken by the respective members of the Tribunal for the purposes of the proceedings of the Tribunal. (4a) If a member of the Tribunal who is not a Presidential member is to constitute the Tribunal, or is to be a member of a Full Bench of the Tribunal, for the purpose of dealing with any matter, the President must be satisfied that the member has appropriate knowledge, expertise, or experience relating to that class of matter. (5) In addition, the Tribunal may be constituted of— (a) a registrar for the purpose of adjourning proceedings; or (b) a registrar or other member of the staff of the Tribunal for any other purpose specified by this Act or a relevant Act, prescribed by the rules of the Tribunal, or determined by the President. (5a) In addition, a member of the Tribunal (not being a judge or magistrate), or a registrar or other member of the staff of the Tribunal, may assist with the business of the South Australian Employment Court to the extent that it may be appropriate to do so. (6) The Tribunal may, at any one time, be separately constituted in accordance with this section for the hearing and determination of any number of separate matters. (7) The Tribunal may, if it considers it appropriate to do so, organise its business and regulate proceedings before the Tribunal in such a way that 2 or more proceedings in respect of the same matter are heard together. (8) Where a registrar or other member of the staff of the Tribunal exercises the jurisdiction of the Tribunal, the registrar or other member of the staff may, and must if the Tribunal or the President of the Tribunal so directs, refer the matter to the Tribunal for determination by the Tribunal. (9) If a provision of this Act and the provisions of a relevant Act deal with the manner in which the Tribunal is to be constituted for the purposes of proceedings or any other business under a relevant Act, this section applies subject to those provisions of the relevant Act. 20—Who presides at proceedings of Tribunal (1) If, for dealing with a particular matter, the Tribunal is constituted by 2 or more members, the most senior of them is to preside at the proceedings of the Tribunal. (2) The seniority of members of the Tribunal depends on which of the offices held takes precedence and, if that does not determine a member's seniority, the matter is to be resolved by the President of the Tribunal. (3) The order of precedence of offices is as follows: (a) President; (b) Deputy President; (c) magistrate; (d) Commissioner; (e) supplementary panel member. 21—Decision if 2 or more members constitute Tribunal If the Tribunal is constituted by 2 or more members, a question they are required to decide is resolved, unless section 22 applies, according to the opinion of the majority of them but, if their opinions on the question are equally divided, the question is to be resolved according to the opinion of the presiding member. 22—Determination of questions of law (1) The member of the Tribunal constituting the Tribunal or, if the Tribunal is constituted by 2 or more members, the presiding member, may refer a question of law to a Full Bench of the South Australian Employment Court. (2) If a question of law is referred under this section— (a) the question is decided by the Tribunal according to the opinion of the Full Bench of the South Australian Employment Court; or (b) the Full Bench may refer the question to the Court of Appeal for determination. (3) If a Full Bench of the Court decides a question of law under subsection (2), the Full Bench may, in addition— (a) decide any other questions remaining between the parties; and (b) make such orders that are necessary to dispose of the matter.