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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (South Australian Employment Tribunal)
Bill 2016
A BILL FOR
An Act to amend various Acts relating to the jurisdiction of the South
Australian Employment Tribunal.
Contents
Part 2—Amendment of South Australian
Employment Tribunal Act 2014
4Amendment of section
3—Interpretation
5Amendment of section 5—Establishment of
Tribunal
6AConferral of
jurisdiction—criminal matters
6BConferral of
jurisdiction—related matters
8Amendment of section 9—The
members
10Amendment of section 12—Acting
President
12ANumber of Deputy
Presidents
13Appointment of Deputy
Presidents
13Insertion of Part 2 Division 3A
Division 3A—Supplementary panel
members
18ASupplementary
panel members
14Amendment of section 19—Constitution of
Tribunal and its decision-making processes
15Amendment of section 20—Who presides at
proceedings of the Tribunal
16Amendment of section 22—Determination of
questions of law
18Insertion of Part 2 Division 6
Division 6—Additional provisions
relating to jurisdiction
26BOther provisions
relating to civil jurisdiction of Court
26CBinding nature
of decisions
Division 7—Additional provisions
relating to jurisdiction under Return to Work Act 2014
26DCivil
jurisdiction under Return to Work Act 2014
26ERights of action
and recovery against third parties
26FReview
jurisdiction under Return to Work Act 2014
26GInjuries that
develop gradually
Division 1—Review
jurisdiction
21Amendment of section 27—General nature
of proceedings
22Insertion of new Part 3 Division
2
Division 2—Application of
Division
23Amendment of section 32—Principles
governing hearings
24Amendment of section 34—Entry and
inspection
25Amendment of section 49—Joinder of
parties etc
26Amendment of section
52—Costs
27Amendment of section 66—Internal
review
29Amendment of section 68—Final appeal to
Supreme Court
30Amendment of section 69—Effect of appeal
on decision
31Amendment of section 70—Reservation of
questions of law
33Amendment of section 86—Enforcement of
decisions and orders of Tribunal
88AProduction of
persons held in custody
91Disrupting
proceedings of Tribunal
Part 3—Amendment of Dust Diseases
Act 2005
37Amendment of section
3—Interpretation
39Amendment of section 5—Expeditious
hearing and determination of dust disease actions
41Amendment of section
7—Costs
42Amendment of section 8—Evidentiary
presumptions and special rules of evidence and procedure
43Amendment of section
9—Damages
44Amendment of section 10—Procedure where
several defendants or insurers involved
Part 4—Amendment
of Fair Work Act 1994
45Amendment of section 3—Objects of
Act
46Amendment of section
4—Interpretation
Chapter 2—Jurisdiction of
SAET—special provisions
Part 1—Conferral of jurisdiction,
declarations and orders
8Jurisdiction to
interpret awards and enterprise agreements
9Jurisdiction to decide monetary
claims under industrial laws or instruments
10Jurisdiction to hear and
determine questions arising under contracts of employment
12Orders to remedy
or restrain contraventions
Part 2—Processes associated with
industrial matters and disputes
13Amendment or
rectification of proceedings
17Advertisement of
applications
18Provisions of
award etc relevant to how SAET intervenes in dispute
21Reference of
questions for determination
22Experience
gained in settlement of dispute
25Inquiries into
conduct of registered agents or other representative
Part 4—Concurrent
appointments—other industrial authorities
27Powers of member
holding concurrent appointments
Part 5—Special provisions relating
to monetary claims
31Simultaneous
proceedings not permitted
48Amendment of Chapter
3—Employment
49Amendment of section 99G—Recovery of
amount of unpaid remuneration
50Amendment of Chapter
4—Associations
52Amendment of section
219—Confidentiality
53Insertion of sections 219A to
219D
219BGeneral
functions of inspectors
54Amendment of section 220—Notice of
determinations of SAET
57Amendment of section 230—Orders for
payment of money
58Amendment of section 234—Proof of
awards etc
59Amendment of section 235—Proceedings
for offences
Part 5—Amendment of Construction
Industry Long Service Leave Act 1987
63Amendment of section
4—Interpretation
64Substitution of heading to Part
6
67Repeal of sections 35 and 36
68Amendment of section 37—Effect of
pending review by SAET
Part 6—Amendment of Courts
Administration Act 1993
70Amendment of section
4—Interpretation
Part 7—Amendment of Criminal Law
(Sentencing) Act 1988
71Amendment of section 19—Limitations on
sentencing powers of Magistrates Court
Part 8—Amendment of Education
Act 1972
72Amendment of section
5—Interpretation
73Amendment of section 16—Retrenchment of
officers of the teaching service
74Amendment of section 17—Incapacity of
members of the teaching service
75Amendment of section 26—Disciplinary
action
29Appointment and
selection of supplementary panel members for classification
reviews
77Amendment of section 30—Review of
Director-General's decision
79Substitution of Heading to Part 3 Division
8
Division 8—Promotional level
positions—appointments and reviews
80Repeal of sections 45 to 52
(inclusive)
81Amendment of section 53—Promotional
level positions—appointments and reviews
54Appointment and
selection of supplementary panel members for reviews
83Amendment of section
107—Regulations
Part 9—Amendment of Equal
Opportunity Act 1984
85Amendment of section
5(1)—Interpretation
86Substitution of heading to Part
2
87Repeal of Part 2 Divisions 2 and
3
88Substitution of heading to Part 8 Division
2
90Amendment of section 100—Proceedings
under Fair Work Act 1994
Schedule 1—Supplementary panel members
for proceedings before Tribunal
Part 10—Amendment of Fire and
Emergency Services Act 2005
93Amendment of section
3—Interpretation
94Amendment of section 29—Other officers
and firefighters
95Amendment of section 48—Suspension
pending hearing of complaint
96Substitution of sections 49 and
50
97Amendment of section 51—Participation
of supplementary panel members in reviews
Schedule 1—Appointment and selection of
supplementary panel members for reviews under Part 3
Part 11—Amendment of Industrial
Referral Agreements Act 1986
100Amendment of section 3—Referral of
matter to SAET by agreement
Part 12—Amendment of Judges'
Pensions Act 1971
102Amendment of section
4—Interpretation
Part 13—Amendment of Long Service
Leave Act 1987
103Amendment of section
3—Interpretation
104Amendment of section 6—Continuity of
service
105Amendment of section
9—Exemptions
106Amendment of section 12—Inspector may
direct employer to grant leave or pay amount due
107Amendment of section 13—Failure to
grant leave
Part 14—Amendment of Magistrates
Court Act 1991
109Amendment of section
42—Appeals
110Amendment of section 43—Reservation of
question of law
Part 15—Amendment of Oaths
Act 1936
111Amendment of section 28—Commissioners
for taking affidavits
Part 16—Amendment of Police
Act 1998
112Amendment of section
3—Interpretation
113Amendment of section 48—Right of
review
114Repeal of sections 49, 50 and
51
115Amendment of section 52—Review of
certain transfers
116Amendment of Schedule 1—Police Review
Tribunal
Part 17—Amendment of Public Sector
Act 2009
118Amendment of section
3—Interpretation
119Amendment of section 25—Public Service
employees
120Amendment of section
49—Remuneration
121Amendment of section 58—Application of
unfair dismissal provisions of Fair Work Act
122Amendment of section 62—External
review
Schedule
2—Special provisions relating to Tribunal
2Constitution of
Tribunal and other matters
Part 18—Amendment of Summary
Procedure Act 1921
126Amendment of section
4—Interpretation
Part 19—Amendment of Technical and
Further Education Act 1975
128Amendment of section
4—Interpretation
129Substitution of section 17A
18Appointment and
selection of supplementary panel members for reviews
130Amendment of section 26—Disciplinary
action
131Amendment of section
43—Regulations
Part 20—Amendment of Training and
Skills Development Act 2008
133Amendment of section
4—Interpretation
134Amendment of section 49—Term of
training contracts
135Amendment of section 63—Compliance
notices
136Amendment of section 64—Employer may
suspend apprentice/trainee for serious misconduct
137Amendment of section 65—Other matters
to be dealt with by SAET
66Holding of
compulsory conciliation conferences
139Amendment of section 67—Representation
in proceedings before SAET
Part 21—Amendment of Work Health and
Safety Act 2012
141Amendment of section
4—Definitions
142Amendment of section
65—Disqualification of health and safety representatives
144Amendment of section 114—General
provisions relating to orders
145Amendment of section 215—Injunctions
for noncompliance with notices
146Amendment of section 229—Application
for external review
147Amendment of section
230—Prosecutions
148Amendment of section 255—Proceedings
for contravention of WHS civil penalty provision
149Amendment of section 258—Civil
proceeding rules and procedure to apply
150Amendment of section 259—Proceeding
for a contravention of a WHS civil penalty provision
151Amendment of section 262—Recovery of a
monetary penalty
152Amendment of section 263—Civil double
jeopardy
153Amendment of Schedule 3, clause
14
Schedule 4—Supplementary panel
members
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (South Australian
Employment Tribunal) Act 2016.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of South Australian Employment Tribunal
Act 2014
4—Amendment
of section 3—Interpretation
(1) Section 3(1)—after the definition of conciliation
officer insert:
decision, of a person or body (other than the Tribunal) under
an Act includes a direction, determination or order of that person or
body;
(2) Section 3(1), definition of Department—delete the
definition and substitute:
Department means the administrative unit of the Public
Service that is responsible for assisting a Minister in the administration of
this Act;
(3) Section 3(1), definition of Industrial Relations
Court—delete the definition
(4) Section 3(1), definition of Tribunal—after "by
this Act" insert:
(including, if the context so permits, the Tribunal in Court
Session—see section 5)
5—Amendment
of section 5—Establishment of Tribunal
Section 5—after its present contents (now to be designated as
subsection (1)) insert:
(2) The Tribunal will have a part that is the Tribunal in Court Session
and, as so established by force of this Act, is a court of record.
(3) The Tribunal in Court Session is to be the South Australian
Employment Court.
(4) The Tribunal will also have a part that is the Tribunal acting as an
industrial relations commission.
Section 6—delete the section and substitute:
6—Jurisdiction of Tribunal
(1) Subject to this or any other Act, the Tribunal will have the
jurisdiction (including the jurisdiction to try a charge for an offence)
conferred on it by or under this or any other Act.
(2) Matters within the jurisdiction of the Tribunal will be assigned to
the South Australian Employment Court as follows:
(a) an Act conferring jurisdiction on the Tribunal may specifically assign
matters to the South Australian Employment Court;
(b) the rules may (unless to do so is inconsistent with a provision of a
relevant Act)—
(i) assign matters to the South Australian Employment Court;
(ii) assign matters to the South Australian Employment Court for
resolution or determination after initial consideration or other steps having
been undertaken in that part of the Tribunal that does not sit as the
Court;
(c) the jurisdiction to try a charge for an offence is assigned to the
South Australian Employment Court.
(3) Matters within the jurisdiction of the Tribunal (and not assigned to
the South Australian Employment Court) and dealt with by the Tribunal acting as
an industrial relations commission do not need to be specifically assigned to
such a commission.
6A—Conferral of jurisdiction—criminal
matters
(1) Subject to this section, the criminal jurisdiction of the South
Australian Employment Court does not include jurisdiction in respect of major
indictable offences.
(2) In addition to any jurisdiction conferred by or under another Act, the
regulations may confer on the South Australian Employment Court jurisdiction in
respect of a summary or minor indictable offence against a specified Act or
statutory provision.
(3) If jurisdiction is conferred on the South Australian Employment Court
under this or any other Act in respect of a summary or minor indictable offence,
any proceedings for the offence must be commenced in the Court.
(4) The South Australian Employment Court will deal with a charge of a
summary or minor indictable offence in the same way as the Magistrates Court
deals with such a charge (and in accordance with the procedures that would apply
if the Magistrates Court were dealing with such a charge) and the
Summary
Procedure Act 1921
applies to the South Australian Employment Court subject to any exclusions
or modifications prescribed by the regulations as if references to the
Magistrates Court extended to the South Australian Employment Court.
(5) For the avoidance of doubt, if a person charged with a minor
indictable offence elects, in accordance with the
Summary
Procedure Act 1921
, for a trial in a superior court, the South Australian Employment Court
must commit the defendant for trial by jury in the District Court.
(6) Where proceedings
for a minor indictable offence are dealt with by a magistrate of the South
Australian Employment Court—
(a) the magistrate cannot impose a fine that exceeds the maximum fixed by
the relevant Act or $300 000 (whichever is the lesser); and
(b) the magistrate cannot impose a sentence of imprisonment that exceeds
the maximum fixed by the relevant Act or 5 years (whichever is the
lesser).
(7) If a magistrate of the South Australian Employment Court is of the
opinion in any particular case that a sentence should be imposed that exceeds
the limit prescribed by
subsection (6)
, the magistrate may remand the defendant to appear for sentence before a
judge of the South Australian Employment Court.
(8) In the exercise of the criminal jurisdiction to which this section
applies, summary proceedings will be heard by a Deputy President of the South
Australian Employment Court who is also a magistrate unless the President
determines that the proceedings should be heard by a judge of the
Court.
6B—Conferral of jurisdiction—related
matters
(1) Without limiting any other provision, if a provision of an Act
specifically enables an application to be made to the Tribunal, or a claim to be
brought before the Tribunal, the Act will be taken to confer jurisdiction on the
Tribunal to deal with the matter concerned.
(2) Without limiting any other provision, Divisions 6 and 7 provide for
additional jurisdiction, powers and other matters relating to the conferral of
jurisdiction on the Tribunal or the Tribunal in Court session.
After section 7 insert:
7A—Seals
(1) The Tribunal will have such seals as are necessary for the transaction
of its business.
(2) The Tribunal must have a seal for the South Australian Employment
Court.
(3) A document apparently sealed with a seal of the Tribunal (including
with respect to the South Australian Employment Court) will, in the absence of
evidence to the contrary, be taken to have been duly issued under the authority
of the Tribunal.
8—Amendment
of section 9—The members
(1) Section 9(b)—delete "Deputy President or"
(2) Section 9—after paragraph (d) insert:
and
(e) the supplementary panel members.
Section 10—delete the section and substitute:
10—Appointment of President
(1) The President of the Tribunal will be a judge of the District Court
appointed by the Governor, by proclamation, to be the President of the
Tribunal.
(2) The President of the Tribunal will, by virtue of holding that office,
have the same rank, title, status and precedence as a judge of the Supreme
Court.
(3) Furthermore,
the appointment of a judge of the District Court as President of the Tribunal
does not affect—
(a) the judge's tenure of office or status as a judge; or
(b) the payment of the judge's salary or allowances as a judge (subject to
the operation of
subsection (7)
); or
(c) the ability of the person to do anything in the person's capacity as a
judge (including as to the exercise of the jurisdiction of the District Court);
or
(d) any other right or privilege that the judge has as a judge.
(4) Service in the
office of President of the Tribunal is taken, for all purposes, to constitute
service as a judge of the District Court.
(5) Subject to
subsections (3)
and
(4)
, an appointment may be subject to conditions determined by the
Governor.
(6) Without
limiting
subsection (5)
, the Remuneration Tribunal may determine that the President's salary or
allowances as a judge will have an additional component on account of holding
office under this Act (and the jurisdiction to make such a determination is
conferred on the Remuneration Tribunal by this Act).
(7) Any salary or
allowances payable as an additional component of remuneration under
subsection (6)
cannot be reduced during the person's term of office as
President.
(8) A person ceases
to be the President of the Tribunal if—
(a) the person ceases to be a judge of the District Court; or
(b) the person,
with the approval of the Governor, resigns as President by written notice to the
Attorney-General; or
(c) the person dies.
(9) Nothing under
subsection (8)(b)
affects the person's tenure or status as a judge.
(10) Before the Governor makes a proclamation under this section, the
Attorney-General must consult with the Chief Justice and the Chief
Judge.
10—Amendment
of section 12—Acting President
(1) Section 12(1)—delete "a Deputy President" and
substitute:
a person
(2) Section 12(2) and (3)—delete subsections (2) and (3) and
substitute:
(2) The Governor
may only appoint—
(a) a Deputy President; or
(b) a judge of the
District Court,
to act as President.
(3) A person appointed to act as a President—
(a) has all the functions of the President; and
(b) is taken to be the President for all purposes related to this Act or a
relevant Act.
(4) A person appointed to act as President is, for the period of his or
her appointment, entitled to be paid additional salary and allowances to ensure
that his or her salary and allowances equal the salary and allowances payable to
a President of the Tribunal.
(5) The Governor may, by further proclamation—
(a) extend or renew an appointment under this section; or
(b) revoke an appointment under this section.
(6) Until an appointment is made under subsection (1) (or unless such an
appointment is made) the most senior Deputy President who is also a judge of the
District Court will be taken to hold an appointment to act as the President of
the Tribunal.
Before section 13 insert:
12A—Number of Deputy
Presidents
There will be at least 2 Deputy Presidents of the Tribunal.
Section 13—delete the section and substitute:
13—Appointment of Deputy
Presidents
(1) A Deputy
President will be—
(a) a judge of the
District Court appointed by the Governor, by proclamation, to be a Deputy
President of the Tribunal; or
(b) a magistrate
appointed by the Governor, by proclamation, to be a Deputy President of the
Tribunal.
(2) The appointment
of a judge of the District Court as a Deputy President of the Tribunal under
subsection (1)(a)
does not affect—
(a) the judge's tenure of office or status as a judge; or
(b) the payment of the judge's salary or allowances as a judge (subject to
the operation of
subsection (5)
); or
(c) the ability of the person to do anything in the person's capacity as a
judge (including as to the exercise of the jurisdiction of the District Court);
or
(d) any other right or privilege that the judge has as a judge of the
District Court.
(3) Service in the
office of Deputy President of the Tribunal by a judge of the District Court is
taken, for all purposes, to constitute service as a judge of that
Court.
(4) Subject to
subsections
(2)
and
(3)
, an appointment under
subsection (1)(a)
may be subject to conditions determined by the Governor.
(5) Without
limiting
subsection (4)
, in the case of an appointment under
subsection (1)(a)
, the Remuneration Tribunal may determine that a Deputy President's salary
or allowance as a judge will have an additional component on account of holding
office under this Act (and the jurisdiction to make such a determination is
conferred on the Remuneration Tribunal by this Act).
(6) Any salary or allowances payable as an additional component of
remuneration under
subsection (5)
cannot be reduced during the person's term of office as a Deputy President
of the Tribunal.
(7) The appointment of
a magistrate as a Deputy President of the Tribunal under
subsection (1)(b)
does not affect—
(a) the magistrate's tenure of office or status as a magistrate;
or
(b) the payment of the magistrate's salary or allowances as a magistrate
(subject to the operation of subsection (14)); or
(c) the ability of the person to do anything in the person's capacity as a
magistrate; or
(d) any other right of privilege that the magistrate has by virtue of the
office of magistrate.
(8) Service in the
office of Deputy President of the Tribunal by a magistrate is taken, for all
purposes, to constitute service as a magistrate.
(9) Subject to
subsections (7)
and
(8)
, an appointment under
subsection (1)(b)
may be subject to conditions determined by the Governor.
(10) Without limiting
subsection (9)
, in the case of an appointment under
subsection (1)(b)
, the Remuneration Tribunal may determine that a Deputy President's salary
or allowance as a magistrate will have an additional component on account of
holding office under this Act (and the jurisdiction to make such a determination
is conferred on the Remuneration Tribunal by this Act).
(11) A person
ceases to be a Deputy President of the Tribunal if—
(a) in the case of an
appointment under
subsection (1)(a)
—the person ceases to be a judge of the District Court; or
(b) in the case of an appointment under
subsection (1)(b)
—the person ceases to be a magistrate; or
(c) the person
resigns as Deputy President by written notice to the Attorney-General;
or
(d) the person dies.
(12) Nothing in
subsection (11)(c)
affects a person's tenure or status as a judge (in the case of an
appointment under
subsection (1)(a)
) or as a magistrate (in the case of an appointment under
subsection (1)(b)
).
(13) Before the Governor makes a proclamation under this section, the
Attorney-General must consult with—
(a) the Chief Justice; and
(b) in the case of an appointment under
subsection (1)(a)
—the Chief Judge; and
(c) in the case of an appointment under
subsection (1)(b)
—the Chief Magistrate.
13—Insertion
of Part 2 Division 3A
After section 18 insert:
Division 3A—Supplementary panel
members
18A—Supplementary panel
members
(1) There will be such panels of supplementary panel members as may be
necessary for the purposes of any relevant Act.
(2) A supplementary panel member will be appointed by the Governor on the
recommendation of the Minister responsible for the administration of this Act in
consultation with the Minister responsible for the administration of the
relevant Act (unless otherwise provided by the relevant Act).
(3) A supplementary panel member will be appointed for a term of office,
not exceeding 5 years, specified in the instrument of appointment and is
eligible for reappointment at the expiration of a term of office.
(4) A supplementary panel member is appointed on conditions specified in
the instrument of appointment.
(5) A supplementary panel member will sit on a sessional basis.
(6) Subject to the conditions of appointment, a supplementary panel member
may perform work outside the Tribunal.
(7) The Governor
may, on the recommendation of the Minister responsible for the administration of
this Act after consultation with the Minister responsible for the administration
of the relevant Act, remove a supplementary panel member from office
for—
(a) misconduct; or
(b) neglect of duty; or
(c) incompetence; or
(d) incapacity to carry out official duties satisfactorily.
(8) A person ceases to be a supplementary panel member if the
person—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Minister; or
(d) ceases to satisfy any qualification by virtue of which the person was
eligible for appointment to the panel; or
(e) is removed from office under
subsection (7)
.
(9) The Governor may make appointments from time to time for the purpose
of maintaining or increasing the membership of panels established under this
section.
14—Amendment
of section 19—Constitution of Tribunal and its decision-making
processes
(1) Section 19(3)—after "the Tribunal" insert:
(including a Full Bench of the South Australian Employment Court)
(2) Section 19—after subsection (8) insert:
(8a) The Tribunal sitting as the South Australian Employment Court may
only be constituted by—
(a) members of the Tribunal who are also judges or magistrates (sitting
alone or in any combination as the President thinks fit); or
(b) another member of the Tribunal, or a registrar or other member of the
staff of the Tribunal, to the extent that it may be appropriate for such members
of the Tribunal or officials to assist with the business of the Court.
15—Amendment
of section 20—Who presides at proceedings of the
Tribunal
Section 20(3)—after paragraph (d) insert:
(e) supplementary panel member.
16—Amendment
of section 22—Determination of questions of law
(1) Section 22(1)—delete "Full Bench of the Tribunal" and
substitute:
Full Bench of the South Australian Employment Court
(2) Section 22(2)(a)—delete "Full Bench of the Tribunal" and
substitute:
Full Bench of the South Australian Employment Court
(3) Section 22(3)—delete "of the Tribunal" and substitute:
of the Court
Section 23—delete the section
18—Insertion
of Part 2 Division 6
After section 26 insert:
Division 6—Additional provisions relating to
jurisdiction
26A—Declaratory judgments
Without limiting any specific jurisdiction to make declaratory judgments
conferred by another Act, the South Australian Employment Court may, on matters
within its jurisdiction, make binding declarations of right whether or not any
consequential relief is or could be claimed.
26B—Other provisions relating to civil jurisdiction
of Court
Without limiting any other provision of this Act, the South Australian
Employment Court may, in exercising any jurisdiction that is in the nature of a
civil jurisdiction, exercise any power under Part 6 of the
District
Court Act 1991
, subject to any exclusions or modifications prescribed by the regulations
as if references to the District Court extended to the South Australian
Employment Court.
26C—Binding nature of
decisions
Without limiting any other provision of this Act, any decision or
determination of the South Australian Employment Court is binding and
authoritative in nature and binds the parties to the relevant matter by its own
force.
Division 7—Additional provisions relating to
jurisdiction under Return to Work Act 2014
26D—Civil jurisdiction under Return to Work
Act 2014
(1) The South
Australian Employment Court has exclusive jurisdiction to hear and determine an
action for damages to which Part 5 of the
Return
to Work Act 2014
applies.
(2) Proceedings for any
tortfeasor liable in respect of damages to which Part 5 of the
Return
to Work Act 2014
applies to recover contribution from any other tortfeasor liable in
respect of those damages may be brought before the Tribunal and dealt with by
the South Australian Employment Court.
(3) If a cause of action giving rise to proceedings brought under
subsection (1)
or
(2)
also gives rise to a claim in respect of some other matter, the claim may
be included in those proceedings even though it does not relate to proceedings
for damages within the scope of section 71(1) of the
Return
to Work Act 2014
.
(4) Any matter that is ancillary or related to a matter that is the
subject of proceedings brought under a preceding subsection may also be included
in those proceedings.
(5) In connection with the operation of this section, a reference to a
court in a prescribed provision will be taken to be a reference to the South
Australian Employment Court.
(6) In this section—
prescribed provision means any of the following provisions of
the
Return
to Work Act 2014
:
(a) section 22;
(b) Part 5;
(c) Part 8.
26E—Rights of action and recovery against third
parties
(1) A reference in
section 66 of the
Return
to Work Act 2014
to the District Court of South Australia will be taken to include a
reference to the Tribunal.
(2) The jurisdiction of the Tribunal by virtue of the operation of
subsection (1)
is assigned to the South Australian Employment Court.
(3) An action to recover an excess under section 66(9) of the
Return
to Work Act 2014
may be brought in the South Australian Employment Court (or in any other
court of competent jurisdiction).
26F—Review jurisdiction under Return to Work
Act 2014
A reference in section 103 of the
Return
to Work Act 2014
to Part 3 of this Act will be taken to be a reference to Division 1 of
that Part.
26G—Injuries that develop
gradually
(1) A reference in
section 188 of the
Return
to Work Act 2014
to the Industrial Relations Court of South Australia will be taken to be a
reference to the Tribunal.
(2) The jurisdiction of the Tribunal by virtue of the operation of
subsection (1)
is assigned to the South Australian Employment Court.
26H—Criminal jurisdiction
The South Australian Employment Court is conferred with jurisdiction to try
a charge for an offence against the
Return
to Work Act 2014
.
26I—Appeals
An appeal from a decision of the Tribunal under the
Return
to Work Act 2014
(other than in the exercise of its criminal jurisdiction) will be limited
to a question of law.
Before section 27 insert:
Division 1—Review jurisdiction
Before section 27 insert:
26J—Application of Division
(a) the Tribunal is
dealing with a matter that involves the review of a decision made under an Act
(including in a case that constitutes an appeal under a relevant Act);
or
(b) a relevant Act provides for the Tribunal to deal with a matter under
this Division; or
(c) the rules apply this Division to a matter within the jurisdiction of
the Tribunal.
does not apply in any circumstances prescribed by the
regulations.
21—Amendment
of section 27—General nature of proceedings
(1) Section 27(1)—delete subsection (1) and substitute:
(1) Subject to a relevant Act, a matter under this Division will be dealt
with by the Tribunal as a review of the decision that constitutes the
matter.
(2) Section 27(6) and (7)—delete subsections (6) and (7) and
substitute:
(6) In dealing with a matter under this Division, the Tribunal is to deal
with the matter in accordance with this Act and any relevant Act.
(7) Furthermore, a relevant Act may modify the operation of this Act in
relation to a matter that comes within the exercise of the Tribunal's
jurisdiction under this Division.
22—Insertion
of new Part 3 Division 2
After section 31 insert:
Division 2—Application of
Division
31A—Application of Division
(1) This Division applies in cases where Division 1 does not
apply.
(2) Subject to a relevant Act, a matter under this Division will,
depending on the nature of the matter, be dealt with by the
Tribunal—
(a) acting as the original decision-maker in the matter (and according to
those principles which, according to law, are to be applied to bodies that make
such decisions according to statute); or
(b) resolving a dispute between the parties to the relevant proceedings
(according to law and including, if appropriate, by giving a judgment, making a
declaration or providing any other remedy); or
(c) adopting any other course of action and providing any other relief,
decision or determination that the Tribunal considers appropriate to deal with
the matter.
(3) In dealing with a matter under this Division, the Tribunal is to deal
with the matter in accordance with this Act and any relevant Act.
(4) Furthermore, a relevant Act may modify the operation of this Act in
relation to a matter that comes within the exercise of the Tribunal's
jurisdiction under this Division.
23—Amendment
of section 32—Principles governing hearings
Section 32—after subsection (1) insert:
(1a) However, the rules of evidence and other formal procedures of a court
of record apply to the South Australian Employment Court to the extent that the
Court considers it necessary or appropriate and the Tribunal (in the exercise of
any jurisdiction) may give directions about any question of evidence.
24—Amendment
of section 34—Entry and inspection
(1) Section 34(1)—delete "or building" and substitute:
, building, structure, ship or vessel
(2) Section 34(2)—delete subsection (2) and substitute:
(2) A member of the Tribunal may authorise an officer of the Tribunal, or
any other specified person, to enter any land, building, structure, ship or
vessel and carry out an inspection that the member considers relevant to any
proceedings before the Tribunal.
25—Amendment
of section 49—Joinder of parties etc
Section 49—after subsection (1) insert:
(1a) The Tribunal may order that a person who is a party to proceedings
before the Tribunal be removed as a party if the Tribunal considers that the
person has no proper interest in the proceedings.
(1b) The Tribunal may order that notice of proceedings be given to
specified persons or in a specified way.
26—Amendment
of section 52—Costs
Section 52(2)—after paragraph (b) insert:
(ba) the nature of the cause of action or proceedings; and
27—Amendment
of section 66—Internal review
(1) Section 66(1)—delete subsection (1) and substitute:
(1) A decision of the
Tribunal constituted of—
(a) a conciliation officer; or
(b) a magistrate (not being a Presidential member); or
(c) 2 or 3 members (but not including a Presidential member),
may, on application under the rules, be reviewed under this
section.
(1a) The regulations may exclude or modify the application of
subsection (1)
insofar as it applies to prescribed classes of decisions under a relevant
Act (subject to any provision made by a relevant Act).
(1b) An application for
review must be instituted within 1 month of the making of the decision to
which the application relates but the Tribunal may, if it is satisfied that it
is just and reasonable in the circumstances to do so, dispense with the
requirement that the application should be instituted within that period (even
if the time for instituting the application has expired).
(1c) The President may determine, in relation to a particular matter, or
particular class of matters, how the Tribunal will be constituted for the
purposes of a review under this section.
(1d) On a review, the Tribunal will examine the decision of the Tribunal
at first instance on the evidence or material before the Tribunal at that time
but the Tribunal may, as it thinks fit, allow further evidence or material to be
presented to it.
(1e) The Tribunal must, in acting under this section, reach the correct or
preferable decision but in so doing must have regard to, and give appropriate
weight to, the decision of the Tribunal at first instance.
(2) Section 66(2)—delete "A Presidential member of the" and
substitute:
The
(3) Section 66(2)(c)—delete paragraph (c) and substitute:
(c) set aside the decision being reviewed and—
(a) substitute a new decision; or
(b) send the matter back for reconsideration in accordance with any
directions or recommendations as the Tribunal acting on review considers
appropriate.
Section 67—delete the section and substitute:
67—Appeals
(1) Subject to this
section and to any provision of a relevant Act as to the review of, or appeal
against, a decision of the Tribunal, an appeal lies against a decision of the
Tribunal, other than a decision of a Full Bench, to a Full Bench of the South
Australian Employment Court.
(2) The regulations may exclude or modify the application of
subsection (1)
insofar as the subsection applies to prescribed classes of decisions under
a relevant Act (subject to any provision made by a relevant Act).
(3) An appeal under this section will be by way of rehearing.
(4) The Full Bench conducting the appeal may draw inferences of fact from
evidence or other material before the Tribunal and may, as it thinks fit, allow
further evidence or material to be presented to it.
(5) The Full Bench conducting the appeal may—
(a) affirm the decision appealed against; or
(b) vary the decision appealed against; or
(c) set aside the decision appealed against and, if it thinks fit, return
the matter to the Tribunal for reconsideration in accordance with any directions
that the Full Bench considers appropriate.
(6) A Full Bench may, on an appeal, make any interim, ancillary or
consequential order that the Full Bench considers appropriate (including orders
for costs).
29—Amendment
of section 68—Final appeal to Supreme Court
(1) Section 68(1)—after "Tribunal" insert:
(including a Full Bench of the South Australian Employment Court)
(2) Section 68(3)(b)—after "Tribunal" insert:
(or the South Australian Employment Court)
30—Amendment
of section 69—Effect of appeal on decision
Section 69(4)—delete "of the Tribunal"
31—Amendment
of section 70—Reservation of questions of law
Section 70(1)—after "of the Tribunal" insert:
(including a Full Bench of the South Australian Employment Court)
After section 83 insert:
83A—Transfer of proceedings
(1) The Tribunal may
transfer proceedings before the Tribunal to another tribunal or court (being a
tribunal or court that also has jurisdiction with respect to the matter) if a
member constituting the Tribunal is satisfied or considers that it would be more
appropriate or expeditious for the matter to be dealt with by that tribunal or
court.
(2) The Supreme Court
or a Judge or Master of the Supreme Court may—
(a) order that civil
proceedings before the Tribunal be transferred to the Supreme Court;
or
(b) transfer civil
proceedings in the Supreme Court that lie within the jurisdiction of the
Tribunal to the Tribunal.
(3) The District Court
or a Judge or Master of the District Court may transfer civil proceedings in the
District Court that lie within the jurisdiction of the Tribunal to the
Tribunal.
(4) If proceedings are transferred to another tribunal or court under
subsection (1)
or
(2)(a)
—
(a) a registrar or other member of the staff of the Tribunal must forward
to the other tribunal or court—
(i) a file containing all documents filed in the Tribunal in the
proceedings; and
(ii) a transcript of any evidence taken before the Tribunal in the
proceedings; and
(iii) copies of any order made by the Tribunal in relation to the
proceedings; and
(b) the tribunal or court may—
(i) receive in evidence any transcript of any evidence taken before the
Tribunal in the proceedings and draw any conclusions of fact from that evidence
that appear proper; and
(ii) adopt any findings or decision of the Tribunal that may be relevant
to proceedings before the tribunal or court; and
(iii) adopt or make any decision, direction, determination or order in
relation to the proceedings; and
(iv) continue any proceedings as if they had been commenced before or in
the tribunal or court; and
(v) take other steps to promote or ensure the smoothest possible
transition from 1 jurisdiction to another in connection with the operation of
this section.
(5) If proceedings are transferred to the Tribunal under
subsection (2)(b)
or
(3)
, the Tribunal may—
(a) receive in evidence any transcript of any evidence taken before the
relevant court in the proceedings and draw any conclusions of fact from that
evidence that appear proper; and
(b) adopt any findings or decision of the relevant court that may be
relevant to the proceedings before the Tribunal; and
(c) adopt or make any decision, direction, determination or order in
relation to the proceedings; and
(d) continue any proceedings as if they had been commenced before the
Tribunal; and
(e) take other steps to promote or ensure the smoothest possible
transition from 1 jurisdiction to another in connection with the operation of
this section.
33—Amendment
of section 86—Enforcement of decisions and orders of
Tribunal
Section 86(3)—after the definition of appropriate court
insert:
monetary order includes a judgment that provides for the
payment of an amount of money.
After section 88 insert:
88A—Production of persons held in
custody
If the Tribunal requires the attendance before it of any person who is held
in custody in the State, the Tribunal may—
(a) issue a summons or a notice requiring the custodian to produce that
person before the Tribunal at a nominated time and place; or
(b) issue a warrant authorising the sheriff, or a member of the police
force, to take the person from the custodian and bring the person before the
Tribunal.
Section 91—delete the section and substitute:
91—Disrupting proceedings of
Tribunal
(1) A person who—
(a) wilfully insults a member or officer of the Tribunal, during a sitting
of the Tribunal or in going to or returning from the Tribunal; or
(b) wilfully disturbs or interrupts proceedings of the Tribunal;
or
(c) misbehaves in any other way before the Tribunal; or
(d) wilfully disobeys an order or direction of the Tribunal,
commits a contempt of the Tribunal.
(2) If a party to
proceedings before the Tribunal—
(a) contravenes or fails to comply with an order in the nature of an
interlocutory order or an order (other than an order for payment of money) to
do, or refrain from, a particular act; and
(b) makes no reasonable and adequate excuse to the Tribunal for the
contravention or non-compliance,
the Tribunal may (without limiting its powers to deal with the matter in
any other way) order that the party be not heard, or further heard, in the
proceedings, or impose another procedural disability or civil penalty the
Tribunal considers appropriate to the circumstances of the case.
(3) Before acting under
subsection (2)
, the Tribunal must give the relevant party an opportunity to be heard on
the question.
91A—Punishment of contempts
(1) A contempt of the
Tribunal is a summary offence punishable by a maximum fine of $10 000 or
imprisonment for a maximum term of 6 months.
(2) The jurisdiction to deal with an offence against
subsection (1)
is vested in the South Australian Employment Court.
(3) If a contempt is committed in the face of the Tribunal, the matter may
be dealt with immediately (without the necessity of laying a charge or other
formality) and the South Australian Employment Court may proceed to convict and
fine the offender as it thinks fit.
91B—Offences
An offence against a provision of this Act lies within the criminal
jurisdiction of the South Australian Employment Court.
principal Act means the
South
Australian Employment Tribunal Act 2014
;
relevant day means the day on which this section comes into
operation;
Tribunal means the South Australian Employment
Tribunal.
(2) The person holding office as President of the Tribunal (other than on
an acting basis) immediately before the relevant day—
(a) will continue to hold that office and will, if not already a judge of
the District Court, be appointed as a judge of the District Court by force of
this subsection; and
(b) will hold office taking into account the operation of section 10(2) of
the principal Act, and subject to the operation of section 10(8) of the
principal Act, as enacted by this Act.
(3) A person holding office as a Deputy President of the Tribunal
immediately before the relevant day—
(a) will continue to hold that office; and
(b) will hold that office subject to the operation of section 13(11) of
the principal Act as enacted by this Act—
(i) in the case of a judge of the District Court (including as a result of
an appointment under
subsection (4)
)—as if the person had been appointed under section 13(1)(a) of the
principal Act as enacted by this Act; and
(ii) in the case of a magistrate—as if the person had been appointed
under section 13(1)(b) of the principal Act as enacted by this Act.
(4) A Deputy President
of the Tribunal who, immediately before the relevant day—
(a) was not a judge of the District Court; and
(b) was not a magistrate,
will be appointed as a judge of the District Court by force of this
subsection.
Part 3—Amendment
of Dust Diseases
Act 2005
37—Amendment
of section 3—Interpretation
Section 3—after the definition of injured person
insert:
SAET means the South Australian Employment Tribunal
established under the
South
Australian Employment Tribunal Act 2014
.
After section 4 insert:
4A—Jurisdiction of SAET
(1) SAET has
jurisdiction to hear and determine proceedings in relation to dust disease
actions.
(2) The jurisdiction under
subsection (1)
is assigned to the South Australian Employment Court.
(3) Proceedings for any
tortfeasor liable in respect of damages for or in relation to a dust disease or
the death of a person as a result of a dust disease to recover contribution from
any other tortfeasor liable in respect of that damage may be brought before SAET
and dealt with by the South Australian Employment Court.
(4) If a cause of action giving rise to proceedings brought under
subsection (1)
or
(3)
also gives rise to a claim in respect of some other matter, the claim may
be included in those proceedings even though it does not relate to a dust
disease.
(5) Any matter that is ancillary or related to a matter that is the
subject of proceedings brought under a preceding subsection may also be included
in those proceedings.
39—Amendment
of section 5—Expeditious hearing and determination of dust disease
actions
Section 5—after "The District Court" insert:
or SAET (as the case may be)
Section 6—delete the section
41—Amendment
of section 7—Costs
(1) Section 7(1)—after subsection (1) insert:
(1a) Costs of proceedings in dust disease actions before SAET will be
allowed or awarded on the same basis as for actions in the District
Court.
(2) Section 7(2)—after "the District Court" insert:
or SAET
42—Amendment
of section 8—Evidentiary presumptions and special rules of evidence and
procedure
(1) Section 8(3)—after "apply in a dust disease action"
insert:
before the District Court or SAET
(2) Section 8(3)(a)—delete "the Court" and substitute:
the relevant court
(3) Section 8(3)(a)—after "a court" insert:
or tribunal
(4) Section 8(3)(b)—delete paragraph (b) and substitute:
(b) the relevant court may dispense with proof of any matter that appears
to the court to be not seriously in dispute;
(5) Section 8(3)(c)—delete "the Court" and substitute:
the relevant court
(6) Section 8(4)—delete subsection (4) and substitute:
(4) If—
(a) a finding of fact has been made in a dust disease action by a court of
this State, or a court or tribunal of the Commonwealth or another State or
Territory; and
(b) the finding is, in District Court's or SAET's opinion, of relevance to
an action before it under this Act,
the District Court or SAET (as the case may be) may admit the finding in
evidence and indicate to the parties that it proposes to make a corresponding
finding in the case presently before it unless the party who would be adversely
affected satisfies the District Court or SAET (as the case may be) that such a
finding is inappropriate to the circumstances of the present case.
43—Amendment
of section 9—Damages
(1) Section 9—delete "the Court" wherever occurring and substitute
in each case:
the District Court or SAET (as the case may be)
(2) Section 9(2)—delete "The Court" and substitute:
The District Court of SAET (as the case may be)
44—Amendment
of section 10—Procedure where several defendants or insurers
involved
(1) Section 10—delete "The Court" and substitute:
The District Court or SAET (as the case may be)
(2) Section 10—delete "the Court" and substitute:
the District Court or SAET (as the case may be)
Part 4—Amendment
of Fair Work
Act 1994
45—Amendment
of section 3—Objects of Act
(1) Section 3(1)(p)—delete "industrial authorities" and
substitute:
bodies
(2) Section 3(2)—delete "the Court, the Commission and other
industrial authorities are" and substitute:
SAET is
46—Amendment
of section 4—Interpretation
(1) Section 4(1), definition of award—delete "the
Commission" and substitute:
SAET
(2) Section 4(1), definition of Commission—delete the
definition
(3) Section 4(1), definition of Court—delete the
definition
(4) Section 4(1), definition of Deputy
President—delete the definition
(5) Section 4(1), definition of enterprise agreement
matter—delete the definition
(6) Section 4(1), definition of evidentiary
material—delete the definition
(7) Section 4(1), definition of examinable
arrangements—delete the definition
(8) Section 4(1), definition of Full Commission—delete
the definition
(9) Section 4(1), definition of Full Court—delete the
definition
(10) Section 4(1), definition of industrial authority,
(a)—delete paragraph (a) and substitute:
(a) SAET;
(11) Section 4(1), definition of Industrial Registrar or
Registrar—delete the definition
(12) Section 4(1), definition of inspector—delete the
definition and substitute:
inspector—see section 219A;
(13) Section 4(1), definition of President—delete the
definition and substitute:
President means the President of SAET;
(14) Section 4(1), definition of Presidential
Member—delete the definition
(15) Section 4(1), definition of registered
agent—delete "the Court or the Commission by registration as an
agent under this Act (See Chapter 5 Part 1 Division 2)" and
substitute:
SAET by registration as an agent under this Act (See Chapter 2
Part 3)
(16) Section 4(1)—after the definition of registered
association insert:
Registrar means the Registrar or Deputy Registrar of
SAET;
(17) Section 4(1), definition of rules—delete the
definition and substitute:
rules means the rules of SAET;
SAET means the South Australian Employment Tribunal
established under the
South
Australian Employment Tribunal Act 2014
;
(18) Section 4(5)—delete subsection (5)
Chapter 2—delete the Chapter and substitute:
Chapter 2—Jurisdiction of SAET—special
provisions
Part 1—Conferral of jurisdiction, declarations
and orders
7—Jurisdiction of SAET
SAET has the jurisdiction conferred by this Act—
(a) to adjudicate on rights and liabilities arising out of employment;
and
(b) in relation to industrial matters—
(i) to approve enterprise agreements regulating remuneration and other
industrial matters; and
(ii) to make awards regulating remuneration and other industrial matters;
and
(iii) to hear, determine and regulate any matter or thing arising from or
relating to an industrial matter; and
(c) to settle and resolve industrial disputes.
8—Jurisdiction to interpret awards and enterprise
agreements
(1) SAET has jurisdiction to interpret an award or enterprise
agreement.
(2) In exercising its interpretative jurisdiction—
(a) SAET should have regard to any evidence that is reasonably available
to it of what the author of the relevant part of the award or enterprise
agreement, and the parties to the award or enterprise agreement, intended it to
mean when it was drafted; and
(b) if a common intention is ascertainable—give effect to that
intention.
9—Jurisdiction to decide monetary claims under
industrial laws or instruments
(1) SAET
(constituted as the South Australian Employment Court) has jurisdiction to hear
and determine monetary claims of the following kinds:
(a) a claim for a
sum due to an employee or former employee from an employer or former employer
under—
(i) the
Fair
Work Act 1994
, an award, enterprise agreement or contract of employment; or
(ii) the Commonwealth Act, or an award or agreement under the Commonwealth
Act;
(b) a claim for a
sum due to an employer or former employer from an employee or former employee
under—
(i) the
Fair
Work Act 1994
, an award, enterprise agreement or contract of employment; or
(ii) the Commonwealth Act, or an award or agreement under the Commonwealth
Act;
(c) a claim for
compensation to an employee or former employee from an employer or former
employer for failure to make contributions (before or after the commencement of
this Act) for the benefit of the claimant to a superannuation fund;
(d) a claim for
payment of a benefit against the trustee of a superannuation fund to which
contributions have been made.
(2) In this section—
Commonwealth Act means the Fair Work Act 2009 of the
Commonwealth.
10—Jurisdiction to hear and determine questions
arising under contracts of employment
(1) SAET (constituted as the South Australian Employment Court) has
jurisdiction to hear and determine any question, action or claim founded on, or
otherwise arising out of or in relation to, a contract of employment (including
a contract of employment that has been terminated) including (but not limited
to)—
(a) a claim for damages with respect to a breach of a contract of
employment (including a claim where the employee under a contract of employment
has been dismissed); and
(b) a claim to recover a liquidated sum or debt under a contract of
employment; and
(c) an action for an order for specific performance; and
(d) an action for the grant of an injunction.
(2) Subject to
subsection (4)
, the South Australian Employment Court may, in exercising its jurisdiction
under this section—
(a) make an order for specific performance against an employer or an
employee under a contract of employment;
(b) grant an injunction, or give equivalent relief, against an employer or
an employee under a contract of employment even if to do so would effectively
require specific performance of a contractual term against the employer or
employee;
(c) award damages against a party to a contract of employment on account
of the manner of a breach of the contract (including where the breach
constitutes or gives rise to a termination of the contract);
(d) award damages and also provide a remedy by way of an order for
specific performance or an injunction.
(3) Subject to
subsection (4)
, if the South Australian Employment Court is satisfied that it would best
serve the interests of justice in a particular case, the Court should provide
for specific performance or an injunction as a remedy—
(a) even if such a remedy is in addition to, or in substitution for, an
award of damages; and
(b) even if, but for this subsection, only damages would be
awarded.
(4) The South
Australian Employment Court—
(a) should not,
except in exceptional circumstances, in exercising its jurisdiction under this
section—
(i) make an order for specific performance against a natural person;
or
(ii) grant an injunction, or give equivalent relief, against a natural
person under a contract of employment,
if to do so would—
(iii) effectively require an employer to reorganise, to a material extent,
his or her undertaking; or
(iv) effectively
prevent an employee from obtaining other employment; and
(b) in considering the interests of justice under subsection (3), should
take into account—
(i) the length of time that elapsed between the time when the cause of
action in the proceedings arose and the time when the proceedings were
commenced; and
(ii) the extent to which there no longer exists mutual confidence in the
employment relationship between the employer and the employee; and
(iii) the extent to which there is evidence that compliance with an order
for specific performance or an injunction would be impracticable or cause undue
hardship, including, in the case of an employer, by taking into account the size
of the employer's undertaking and the circumstances of the particular employment
situation,
and may take into account such other matters as the Court thinks
fit.
does not apply so as to limit the orders that the South Australian
Employment Court may make in relation to a restraint of trade clause in a
contract of employment that is enforceable at common law.
(6) The costs in any proceedings under this section will be awarded on the
same basis (and in accordance with the same rules) as costs would be awarded in
a corresponding civil action or claim brought in the District Court or the
Magistrates Court (as the case may be).
(7) This section does not limit the operation of
section 9
.
(8) This section does not limit the operation of the
Return
to Work Act 2014
.
(9) In this section—
contract of employment means a contract recognised at common
law as a contract of employment.
11—Declaratory jurisdiction
SAET has jurisdiction to make declaratory judgments conferred by other
provisions of this Act.
12—Orders to remedy or restrain
contraventions
(1) SAET has jurisdiction to order a person who contravenes or fails to
comply with a provision of this Act, an award or an enterprise
agreement—
(a) to take steps, specified in the order, within a time specified in the
order, to remedy the contravention or non-compliance; or
(b) to refrain from further contravention of, or non-compliance with, the
provision.
(2) If there are reasonable grounds to believe that a person is about to
contravene or to fail to comply with a provision of this Act, an award or
enterprise agreement, SAET has jurisdiction to order the person to refrain from
the contravention or non-compliance.
Part 2—Processes associated with industrial
matters and disputes
13—Amendment or rectification of
proceedings
(a) allow the amendment of an application, notice, submission, report or
other document associated with proceedings; or
(b) correct an
error, defect or irregularity (even though the error, defect or irregularity may
be such as to render the proceedings void).
(2) If SAET exercises its power to correct an error, defect or
irregularity under
subsection (1)(b)
, the proceedings are as valid and effective as if the error, defect or
irregularity had never happened.
14—Power to re-open questions
SAET may re-open a question previously decided and amend or quash an
earlier determination.
15—General power of waiver
(1) SAET may, on conditions it considers appropriate, waive compliance
with a procedural requirement of this Act or the rules.
(2) SAET may punish non-compliance with a procedural direction by striking
out proceedings, or any defence, in whole or in part.
16—Applications to SAET
(1) For the purposes of the
South
Australian Employment Tribunal Act 2014
, proceedings before SAET under this Act are commenced by an application
made to SAET—
(a) if, in the Minister's opinion, it is in the public interest that the
matter be dealt with by SAET—by the Minister; or
(b) by an employer, or group of employers; or
(c) by an employee, or group of employees; or
(d) by a registered association of employers; or
(e) by a registered association of employees; or
(f) by the United Trades and Labor Council.
(2) A natural person may bring an application as of right if the
application is authorised under some other provision of this Act but otherwise
must establish to the satisfaction of SAET—
(a) that the claim arises out of a genuine industrial grievance;
and
(b) that there is no other impartial grievance resolution process that is
(or has been) reasonably available to the person.
17—Advertisement of
applications
(1) Before SAET deals with the subject matter of an application, SAET must
satisfy itself that reasonable notice of the substance of the application and
the day and time it is to be heard has been given.
(2) The substance of an application and the day and time it is to be heard
must be—
(a) advertised in the manner prescribed in the rules of SAET; or
(b) communicated to all persons who are likely to be affected by a
determination in the proceedings or their representatives.
18—Provisions of award etc relevant to how SAET
intervenes in dispute
If the parties to an industrial dispute are bound by an award or an
enterprise agreement that provides procedures for preventing or settling
industrial disputes between them, SAET must, in considering whether, when or how
it will exercise its powers in relation to the industrial dispute, have regard
to—
(a) the procedures contemplated by the parties for preventing or settling
industrial disputes; and
(b) the extent the procedures (if applicable to the industrial dispute)
have been complied with by the parties and the circumstances of any compliance
or non-compliance with the procedures.
19—Voluntary conferences
(1) SAET may, if it appears desirable, call a voluntary conference of the
parties involved in an industrial dispute.
(2) A person who
attends a voluntary conference called under this section is, on application to
the Registrar, entitled to be paid an amount certified by the person presiding
at the conference to be reasonable, having regard to the conduct of the person
both before and at the conference and to the expenses and loss of time incurred
by the person.
(3) The amount certified under
subsection (2)
will be paid out of money appropriated by Parliament for the
purpose.
20—Compulsory conference
(1) SAET may, if it appears desirable, call a compulsory conference of the
parties involved in an industrial dispute.
(2) SAET may summon the parties to the dispute and any other person who
may be able to assist in resolving the dispute to appear at the
conference.
(3) A compulsory conference may, at the discretion of SAET, be held in
public or in private or partly in public and partly in private.
(4) A person who fails to attend a compulsory conference as required by
SAET's summons or who, having attended, fails to participate in the conference
as required by the person presiding at the conference commits a contempt of
SAET.
(5) A person who
attends a conference as directed by the person presiding at the conference will,
on application to the Registrar, be entitled to be paid an amount certified by
the person presiding at the conference to be reasonable, having regard to the
conduct of the person both before and at the conference and to the expenses and
loss of time incurred by the person.
(6) The amount certified under
subsection (5)
will be paid out of money appropriated by Parliament for the
purpose.
21—Reference of questions for
determination
(1) The person
presiding at a compulsory conference may, after giving reasonable notice to the
persons attending at the conference, refer the subject matter of the conference
for determination by SAET (which may be constituted of the person who presided
at the conference under this Part).
(2) A matter may be referred for determination by SAET under
subsection (1)
orally and without formality.
(3) An order of SAET on a reference under subsection (1)—
(a) is binding only on persons represented before SAET or summoned to
appear at the conference; and
(b) if the parties to the industrial dispute are bound by an enterprise
agreement, may not affect the terms of the agreement.
22—Experience gained in settlement of
dispute
After the settlement of an industrial dispute, SAET may invite the parties
to the dispute to take part in discussions with a view to—
(a) improving the process of conciliation and arbitration in accordance
with the objects of this Act; and
(b) encouraging the parties to agree on procedures for preventing or
settling further disputes by discussion and agreement; and
(c) deciding whether it would be appropriate for the parties to regulate
their relationship by making an enterprise agreement or amending the terms of an
existing enterprise agreement to provide more adequate means of dispute
prevention or resolution.
Part 3—Representation
23—Representation
(1) In addition to section 51(1)(a) and (b) of the
South
Australian Employment Tribunal Act 2014
, a party to proceedings before SAET under this Act is entitled, without
leave, to be represented by—
(a) in the case of a party that is not otherwise represented by counsel in
accordance with section 51(1)(b) of the
South
Australian Employment Tribunal Act 2014
—a registered agent; or
(b) an officer or employee of an industrial association acting in the
course of employment with that industrial association.
(2) However, in the case of a voluntary or compulsory conference, a party
or intervener may, subject to subsections (3) and (4), only be represented by a
legal practitioner or registered agent with the permission of the person
presiding at the conference.
(3) Permission is not required under subsection (2) if—
(a) the legal practitioner or registered agent is an officer or employee
of—
(i) an employer who is a party to the proceedings; or
(ii) the United Trades and Labor Council; or
(iii) a registered association of which a member is a party to the
relevant industrial dispute; or
(b) the legal practitioner is acting on behalf of the Minister for the
purposes of the conference; or
(c) in the case of a compulsory conference—the matter has already
been referred to SAET.
(4) Permission will only be granted under subsection (2) if (and only
if)—
(a) all of the parties consent to the application for permission;
or
(b) another party is represented by a legal practitioner or registered
agent; or
(c) another party is a legal practitioner or is legally qualified;
or
(d) the person presiding at the conference is satisfied—
(i) the party or intervener would, if permission were not granted, be
unfairly disadvantaged; or
(ii) permission is appropriate in the circumstances.
(5) The costs incurred by a party for representation at a voluntary or
compulsory conference by a legal practitioner or registered agent acting under
the preceding subsections will not be included in any order for costs.
24—Registered agents
(1) The Registrar must maintain a register of registered agents.
(2) A person who applies for registration or renewal of registration is
entitled to registration or renewal of registration (as the case requires) if
the person—
(a) has the qualifications and experience required by regulation for
registration or the renewal of registration (as the case requires);
and
(b) satisfies the Registrar as to any other matter or requirement
prescribed by the regulations; and
(c) pays the relevant fee fixed by regulation.
(3) A person who is not entitled to practise as a legal practitioner
because his or her name has been struck off the roll of legal practitioners in
this State or elsewhere or because of other disciplinary action taken against
him or her is not eligible to become or remain registered as an agent.
(4) Registration will be granted or renewed for a period (not exceeding
2 years) determined by the Registrar.
(5) The Governor may, by regulation, establish a code of conduct to be
observed by registered agents.
(6) The code of conduct may (for example) deal with the following
matters:
(a) it may regulate the fees to be charged by registered agents;
(b) it may require proper disclosure of fees before the registered agent
undertakes work for a client;
(c) it may limit the extent to which a registered agent may act on the
instructions of an unregistered association.
25—Inquiries into conduct of registered agents or
other representative
(1) The Registrar may inquire into the conduct of a registered agent or
other representative in order to determine whether proper grounds for
disciplinary action exist.
(2) Proper grounds for disciplinary action exist if—
(a) in the case of a registered agent—
(i) the agent commits a breach of the code of conduct; or
(ii) the agent is not a fit and proper person to remain registered as an
agent; or
(b) in the case of another representative—the representative's
conduct falls short of the standards that should reasonably be expected of a
person undertaking the representation of another in proceedings before
SAET.
(3) If, on inquiry,
the Registrar finds that proper grounds for disciplinary action exist, the
Registrar may—
(a) issue a letter of admonition; or
(b) if the representative is a legal practitioner—refer the matter
to the Legal Profession Conduct Commissioner for investigation; or
(c) if the
representative is a registered agent—
(i) suspend the agent's registration for a period of up to 6 months;
or
(ii) cancel the agent's registration.
(4) An appeal lies to SAET against a decision of the Registrar under
subsection (3)(c)
.
(5) An appeal must be instituted in accordance with the rules of
SAET.
Part 4—Concurrent appointments—other
industrial authorities
26—Concurrent appointments
(1) A member of
SAET may, with the Minister's approval, be appointed also as a member of an
industrial authority under the law of the Commonwealth or another
State.
(2) If the Minister revokes an approval under
subsection (1)
, the member must resign from office as a member of the other industrial
authority.
(3) A member of an
industrial authority constituted under the law of the Commonwealth or another
State may be appointed also as a member of SAET (to hold a position within SAET
determined by the President after consultation with the Minister) and, if such
an appointment is made, this Act applies with the following
qualifications:
(a) the appointment terminates if the member ceases for any reason to hold
office as a member of the relevant industrial authority;
(b) the member is not entitled to be remunerated as a member of SAET but
is entitled, in circumstances determined by the Governor, to allowances for
expenses at rates fixed by the Governor.
(4) If a member holds concurrent appointments, then—
(a) if the member was appointed first to SAET and subsequently to the
other industrial authority, the extent the member performs the duties of a
member of that other industrial authority will be determined by agreement
between the President and the head of that other industrial authority;
or
(b) if the member was appointed first to the other industrial authority
and subsequently to SAET, the extent the member performs the duties of a member
of SAET will be determined by agreement between the President and the head of
that other industrial authority.
27—Powers of member holding concurrent
appointments
A member who holds concurrent appointments under this Part may, in an
appropriate case, simultaneously exercise powers deriving from both or all
appointments.
Part 5—Special provisions relating to monetary
claims
28—Interpretation
In this Part—
monetary claim means a claim under
section 9
or a claim for a sum or a debt under
section 10
.
29—Limitation of action
A monetary claim must be made within 6 years after the sum claimed became
payable, but no time limitation applies to a claim for the non-payment of
superannuation contributions.
30—Who may make a claim
(1) A monetary claim may be made on behalf of the claimant by an
association.
(2) A monetary claim may be made by a minor as the minor had attained the
age of majority.
(3) A claim relating to money that should have been paid to or for the
benefit of a person who is now dead may be made by the personal representative
of the deceased person or a beneficiary of the deceased person's
estate.
31—Simultaneous proceedings not
permitted
The South Australian Employment Court may not hear a monetary claim if it
appears that proceedings based on the same claim have begun in another court and
the proceedings have not been withdrawn or struck out.
32—Award to include interest
(1) Unless there is good reason for not doing so, the South Australian
Employment Court must, on the application of a person to whom it makes an award
on a monetary claim, include in the judgment an award of interest or a lump sum
instead of interest.
(2) However—
(a) the South Australian Employment Court may not authorise the award of
interest on interest; and
(b) if interest is payable because of an antecedent right, the award may
reflect the antecedent right but may not create a right to additional interest;
and
(c) the South Australian Employment Court may not award interest on an
amount for which judgment is given by consent except by consent of the
parties.
33—Monetary judgment
(1) The South Australian Employment Court may authorise or direct that a
monetary amount awarded be paid in instalments.
(2) The South Australian Employment Court may direct that compensation for
non-payment of contributions that should have been, but were not, made to a
superannuation fund be paid to a superannuation fund on the claimant's
behalf.
34—Costs
(1) The South
Australian Employment Court may only award costs in proceedings based on a
monetary claim as follows—
(a) the Court may award costs on a claim for non-payment of superannuation
contributions to cover reasonable expenses incurred by the claimant to establish
the present value of the loss; and
(b) the Court may award
costs on an appeal.
(2) In connection with the operation of
subsection (1)(b)
—
(a) costs need not be awarded so as to follow the event; and
(b) the Court, in considering whether to award costs and, if so, the
extent of the award, must take into account—
(i) the conduct of the parties; and
(ii) the relevant positions and circumstances of the appellant and the
respondent (and of the successful and unsuccessful parties); and
(iii) the nature of the question in dispute and whether the proceedings
have a broader impact than simply inter-parte proceedings between individual
parties,
and may take into account such other matters as the Court thinks fit to
ensure a just outcome in the circumstances of the case.
(3) This section does not apply in relation to a claim under
section 10
.
48—Amendment
of Chapter 3—Employment
(1) Chapter 3—delete "the Full Commission" wherever occurring and
substitute in each case:
SAET
(2) Chapter 3—delete "The Full Commission" wherever occurring and
substitute in each case:
SAET
(3) Chapter 3—delete "the Commission" wherever occurring and
substitute in each case:
SAET
(4) Chapter 3—delete "The Commission" wherever occurring and
substitute in each case:
SAET
(5) Chapter 3—delete "Commission's" wherever occurring and
substitute in each case:
SAET's
49—Amendment
of section 99G—Recovery of amount of unpaid
remuneration
(1) Section 99G(1)—delete "Chapter 5 Part 2" and
substitute:
section 9
(2) Section 99G(2)—delete subsection (2)
(3) Section 99G(3)—delete "the Court" and substitute:
the South Australian Employment Court
50—Amendment
of Chapter 4—Associations
(1) Chapter 4—delete "the Commission" wherever occurring and
substitute in each case:
SAET
(2) Chapter 4—delete "The Commission" wherever occurring and
substitute in each case:
SAET
(3) Chapter 4—delete "Commission's" wherever occurring and
substitute in each case:
SAET's
(4) Chapter 4—delete "the Full Commission" wherever occurring and
substitute in each case:
SAET
(5) Chapter 4—delete "The Full Commission" wherever occurring and
substitute in each case:
SAET
Chapter 5—delete the Chapter
52—Amendment
of section 219—Confidentiality
Section 219(2)(b)—delete "the Court or the Commission" and
substitute:
SAET
53—Insertion
of sections 219A to 219D
After section 219 insert:
219A—Who are inspectors
(1) The following are inspectors for the purposes of this Act:
(b) persons appointed by the Minister to be inspectors;
(c) persons appointed under the Commonwealth Act who are, under an
arrangement between the Minister and the Minister responsible for administering
the Commonwealth Act, authorised to exercise the powers of an inspector under
this Act.
(2) Each inspector must be furnished by the Minister with an identity
card.
(3) An inspector must produce the identity card for inspection by a person
who questions the inspector's authority to exercise powers under this
Act.
219B—General functions of
inspectors
(1) The functions of the inspectors are—
(a) to investigate complaints of non-compliance with the Act, enterprise
agreements and awards; and
(b) to conduct audits and systematic inspections to monitor compliance
with this Act and enterprise agreements and awards; and
(c) to conduct promotional campaigns to improve the awareness of employers
and people within the workforce of their rights and obligations under this Act,
and under enterprise agreements and awards; and
(d) to do anything else that may be appropriate to encourage compliance
and, if appropriate, take action to enforce compliance.
(2) The powers of an inspector under this Act extend to acting in relation
to persons who are no longer engaged in the performance of work.
(3) An inspector, or a person assisting an inspector, who—
(a) addresses offensive language to any other person; or
(b) without lawful authority, hinders or obstructs or uses or threatens to
use force in relation to any other person,
is guilty of an offence.
Maximum penalty: $5 000.
219C—Powers of inspectors
(1) An inspector
may at any time, with any assistance the inspector considers necessary, without
any warrant other than this section—
(a) enter any workplace; and
(b) inspect and view any work, process or thing in the place;
and
(c) question a person in the place on a subject relevant to employment or
an industrial matter.
(2) An inspector must, when entering or as soon as practicable after
entering a place under this section, produce his or her identity card for
inspection by the occupier or person in charge of the place.
(3) An inspector
may require the production of a time book, paysheet, notice, record, list,
indenture of apprenticeship or other document required to be kept by this Act or
any other Act and may inspect, examine and copy it.
(4) In addition to
the powers set out in
subsections (1)
and
(3)
, if an inspector has reason to believe that a document required to be kept
by an employer under this Act or any other Act is not accessible during an
inspection under
subsection (3)
, the inspector may, by notice in writing to an employer, require the
employer to produce the document to the inspector within a reasonable period (of
at least 24 hours) specified by the inspector.
(5) A document produced under
subsection (3)
or
(4)
may be retained by the inspector for examination and copying (and,
accordingly, the inspector may take it away), subject to the qualification that
the inspector must then return the document within 7 days.
(6) However—
(a) the inspector may not retain an original document if the employer
supplies a copy of it to the inspector for the inspector's own use;
and
(b) the inspector may not retain the original of a document that is
required for the day-to-day operations of the employer (but the inspector may
copy it at the time of its production).
(7) It is the duty of an employer at all reasonable times to facilitate,
as far as practicable, the exercise by an inspector of powers under this
section.
(8) If an inspector puts a question to a person through an interpreter,
the question will, for the purposes of this Act, be taken to have been put to
the person by the inspector and an answer to the question given by the person to
the interpreter will be taken to have been given to the inspector (and in any
legal proceedings it will be presumed that the interpreter's translation of the
answer is the person's answer to the question as put by the inspector unless it
is shown that the interpreter mistranslated the question or the
answer).
(9) A person must not—
(a) hinder or obstruct an inspector in the exercise of a power conferred
by or under this section; or
(b) refuse an inspector entrance to a place the inspector is authorised to
enter under
subsection (1)
; or
(c) refuse or fail to answer truthfully a question put under
subsection (1)
; or
(d) fail, without lawful excuse, to comply with a requirement of an
inspector acting under this section.
Maximum penalty: $1 250.
219D—Compliance notices
(1) If it appears that an employer has failed to comply with a provision
of this Act, or of an award or enterprise agreement, an inspector may issue a
compliance notice requiring the employer, within a period stated in the
notice—
(a) to take specified action to remedy the non-compliance; and
(b) to produce reasonable evidence of the employer's compliance with the
notice.
(2) An employer who fails to comply with a compliance notice within the
time allowed in the notice is guilty of an offence.
Maximum penalty: $3 250.
Expiation fee: $325.
(3) The following applications may be made to SAET for a review of a
notice issued under this section:
(a) an employer may apply to SAET on the ground that the employer has in
fact complied with this Act, or the relevant award or enterprise agreement (as
the case may be);
(b) an employee may apply to SAET on the ground that the employer's
failure to comply with this Act, or an award or enterprise agreement, is more
extensive than stated in the notice.
(4) SAET may, at the conclusion of the review—
(a) confirm the notice; or
(b) confirm the notice with such modification as it thinks fit;
or
(c) cancel the notice.
(5) A reference in this section to this Act includes a reference to a code
of practice made under this Act.
54—Amendment
of section 220—Notice of determinations of SAET
Section 220—delete "Commission" wherever occurring and substitute in
each case:
SAET
Section 221—delete the section
56—Amendment
of section 223—Discrimination against employee for taking part in
industrial proceedings etc
(1) Section 223(1)—delete "the Court or the Commission" wherever
occurring and substitute in each case:
SAET
(2) Section 223(2)—delete "the Commission" and substitute:
SAET
57—Amendment
of section 230—Orders for payment of money
Section 230(1)—delete "the Court or the Commission" wherever
occurring and substitute in each case:
SAET
58—Amendment
of section 234—Proof of awards etc
(1) Section 234(1)—delete "the Court, or the Commission" and
substitute:
SAET
(2) Section 234(2)—delete "the Commission" and substitute:
SAET
(3) Section 234(3)—delete "the Court or the Commission" and
substitute:
SAET
59—Amendment
of section 235—Proceedings for offences
Section 235(1)—delete subsection (1) and substitute:
(1) An offence against a provision of this Act lies within the criminal
jurisdiction of SAET.
(1) Schedule 2—delete "the Commission" wherever occurring and
substitute in each case:
SAET
(2) Schedule 2—delete "The Commission" wherever occurring and
substitute in each case:
SAET
(1) Schedule 2A—delete "the Commission" wherever occurring and
substitute in each case:
SAET
(2) Schedule 2A—delete "The Commission" wherever occurring and
substitute in each case:
SAET
(1) In this section—
determination has the same meaning as in the principal
Act;
industrial authority means the Industrial Relations Court of
South Australia or the Industrial Relations Commission of South
Australia;
principal Act means the
Fair
Work Act 1994
;
relevant day means the day on which this section comes into
operation;
Tribunal means the South Australian Employment
Tribunal.
(2) The Industrial
Relations Court of South Australia and the Industrial Relations Commission of
South Australia are dissolved by force of this subsection.
(3) The commencement of
this subsection brings to an end the appointment of a person as a member of the
Industrial Relations Court of South Australia or the Industrial Relations
Commission of South Australia (as the case may be).
(4) No right of action
arises, and no compensation is payable, in respect of an appointment coming to
an end by virtue of the operation of
subsections (3)
and
(4)
.
(a)
subsections (2)
and
(3)
do not affect appointment of a person as a member of the Tribunal before
the relevant day; and
(b) in the case of a
member of the Industrial Relations Commission of South Australia who,
immediately before the relevant day, was not a member of the Tribunal—the
person will be taken to have been appointed (by force of this subsection) as a
conciliation officer under the
South
Australian Employment Tribunal Act 2014
subject to the following provisions:
(i) the person's term of office will (subject to section 17 of that Act)
be taken to be a period of 5 years from the relevant day;
(ii) the person's appointment will be on any conditions determined by the
Governor and specified in an instrument executed by a Minister acting under this
provision within 14 days after the relevant day;
(iii) the person may, while holding office as a conciliation officer, be
entitled to use the title Commissioner of the South Australian Employment
Tribunal.
(6) The salary and allowances of a person to whom
subsection (5)(a)
applies will not be reduced during the person's term of office as a member
of the Tribunal.
(7) A person to whom
subsection (5)(b)
applies is not entitled, after the relevant day, to any salary, benefits
or allowances on account of the person's position as a member of the Industrial
Relations Commission of South Australia before the relevant day.
(8) However, the salary payable to a person to whom
subsection (5)(b)
applies as a member of the Tribunal cannot be less than the salary payable
to the person as a member of the Industrial Relations Commission of South
Australia immediately before the relevant day (unless the person requests or
agrees to a change to the number of hours to be worked or to work on a sessional
or other basis).
(9) In addition, a person to whom
subsection (5)(b)
applies will be taken to have continuity of service in all respects and
will not be taken, for the purposes of any Act or law, to have resigned or to
have ceased to hold any office for the purposes of any accrued or accruing
rights or entitlements to any pension.
(10) Nothing in a preceding subsection is, in the case of a member of the
Industrial Relations Commission of South Australia who, immediately before the
relevant day, held an appointment as a member of an industrial authority under a
law of the Commonwealth, intended to affect the person's position or status for
the purposes of continuing to hold the appointment under that law of the
Commonwealth.
(11) A determination of an industrial authority under the principal Act in
force immediately before the relevant day will, on and from the relevant day, be
taken to be a determination of the Tribunal.
(12) A right to bring proceedings before an industrial authority in
existence under the principal Act before the relevant day (but not so exercised
before that day) will be exercised as if this Part had been in operation before
the right arose, so that the relevant proceedings may be commenced before the
Tribunal rather than the industrial authority.
(13) Any proceedings before an industrial authority under the principal
Act immediately before the relevant day will, subject to such directions as the
President of the Tribunal thinks fit, be transferred to the Tribunal where they
may proceed as if they had been commenced before that Tribunal.
(14) The Tribunal may—
(a) receive in evidence any transcript of evidence in proceedings before
an industrial authority, and draw any conclusions of fact from that evidence
that appear proper; and
(b) adopt any findings or determinations of an industrial authority that
may be relevant to proceedings before the Tribunal; and
(c) adopt or make any determination in relation to proceedings before an
industrial authority before the relevant day (including so as to make a
determination in relation to proceedings fully heard before the relevant day);
and
(d) take other steps to promote or ensure the smoothest possible
transition from 1 jurisdiction to another in connection with the operation
of this section.
(15) Nothing in this section affects a right of appeal to the Supreme
Court against a decision, direction or order of the Full Court of the Industrial
Relations Court of South Australia made or given before the relevant
day.
(16) A reference in any instrument or enterprise agreement to the
Industrial Relations Court of South Australia or the Industrial Relations
Commission of South Australia will, unless the context otherwise requires, be
taken to be a reference to the Tribunal.
Part 5—Amendment
of Construction Industry Long Service Leave
Act 1987
63—Amendment
of section 4—Interpretation
(1) Section 4(1), definition of award (a)—delete "the
Industrial Relations Commission of South Australia" and substitute:
SAET
(2) Section 4(1)—after the definition of return period
insert:
SAET means the South Australian Employment Tribunal
established under the
South
Australian Employment Tribunal Act 2014
;
(3) Section 4(1), definition of the Tribunal—delete
the definition
64—Substitution
of heading to Part 6
Heading to Part 6—delete the heading and substitute:
Part 6—Reviews
Section 33—delete the section
Section 34—delete the section and substitute:
34—Review by SAET
A person who is dissatisfied with a decision of the Board under this Act
may, within 30 days after the date of the decision (or such longer period
as SAET may allow), apply to SAET under Part 3 Division 1 of the
South
Australian Employment Tribunal Act 2014
for a review of the decision.
67—Repeal
of sections 35 and 36
Sections 35 and 36—delete the sections
68—Amendment
of section 37—Effect of pending review by SAET
(1) Section 37(1)—delete "an appeal" and substitute:
the commencement of proceedings for a review by SAET
(2) Section 37(2)—delete "an appeal" and substitute:
a review
(1) In this section—
principal Act means the
Construction
Industry Long Service Leave Act 1987
;
relevant day means the day on which this Part comes into
operation;
SAET means the South Australian Employment
Tribunal.
(2) The Appeals
Tribunal under the principal Act is dissolved by force of this subsection (and
so the commencement of this subsection brings to an end the appointment of a
person as a member of the Appeals Tribunal).
(3) No right of action arises, and no compensation is payable, in respect
of an appointment coming to an end by virtue of the operation of
subsection (2)
.
(4) A decision, direction or order of the Appeals Tribunal under the
principal Act in force immediately before the relevant day will, on and from the
relevant day, be taken to be a decision, direction or order of SAET.
(5) A right of appeal under section 34 of the principal Act in existence
before the relevant day (but not exercised before that day) will be exercised as
if this Part had been in operation before the right arose, so that the relevant
proceedings may be commenced before SAET rather than the Appeals
Tribunal.
(6) Any proceedings before the Appeals Tribunal under the principal Act
immediately before the relevant day will, subject to such directions as the
President of SAET thinks fit, be transferred to SAET where they may proceed as
if they had been commenced before SAET.
(7) SAET may—
(a) receive in evidence any transcript of evidence in proceedings before
the Appeals Tribunal, and draw any conclusions of fact from that evidence that
appear proper; and
(b) adopt any findings or determinations of the Appeals Tribunal that may
be relevant to proceedings before SAET; and
(c) adopt or make any decision (including a decision in the nature of a
determination), direction or order in relation to proceedings before the Appeals
Tribunal before the relevant day (including so as to make a decision or
determination, or a direction or order, in relation to proceedings fully heard
before the relevant day); and
(d) take other steps to promote or ensure the smoothest possible
transition from 1 jurisdiction to another in connection with the operation
of this section.
Part 6—Amendment
of Courts Administration
Act 1993
70—Amendment
of section 4—Interpretation
Section 4, definition of participating courts,
(bb)—delete paragraph (bb)
Part 7—Amendment
of Criminal Law (Sentencing)
Act 1988
71—Amendment
of section 19—Limitations on sentencing powers of Magistrates
Court
(1) Section 19(3)(b)—delete paragraph (b) and substitute:
(b) a fine that exceeds $150 000.
(2) Section 19(3a)—delete "limits imposed by subsection (3)(b)
apply" and substitute:
limit imposed by subsection (3)(b) applies
Part 8—Amendment
of Education
Act 1972
72—Amendment
of section 5—Interpretation
(1) Section 5(1), definition of the Appeal
Board—delete the definition
(2) Section 5(1)—after the definition of residence
insert:
SAET means the South Australian Employment Tribunal
established under the
South
Australian Employment Tribunal Act 2014
;
73—Amendment
of section 16—Retrenchment of officers of the teaching
service
Section 16(3) and (4)—delete subsections (3) and (4) and
substitute:
(3) An officer may, within 14 days after receiving notice of a
determination under this section (or such longer period as SAET may allow),
apply to SAET under Part 3 Division 1 of the
South
Australian Employment Tribunal Act 2014
for a review of the determination.
(4) In addition to section 30 of the
South
Australian Employment Tribunal Act 2014
, SAET may, at any stage of proceedings for the review of a determination
that has taken effect under this section, revoke the determination and order
that the officer be reinstated in the teaching service.
74—Amendment
of section 17—Incapacity of members of the teaching
service
Section 17(3) and (4)—delete subsections (3) and (4) and
substitute:
(3) An officer may, within 14 days after receiving notice of a
determination under this section or a decision to transfer or retire the officer
under this section (or such longer period as SAET may allow), apply to SAET
under Part 3 Division 1of the
South
Australian Employment Tribunal Act 2014
for a review of the determination or decision.
(4) In addition to section 30 of the
South
Australian Employment Tribunal Act 2014
, SAET may, at any stage of proceedings for the review of a determination
or decision that has taken effect under this section, revoke the determination
or decision and order that the officer be reinstated in the teaching
service.
75—Amendment
of section 26—Disciplinary action
Section 26(4) and (5)—delete subsections (4) and (5) and
substitute:
(4) An officer may, within 14 days after receiving notice of a
determination under this section or a decision made by the employing authority
to dismiss the officer under this section (or such longer period as SAET may
allow), apply to SAET under Part 3 Division 1 of the
South
Australian Employment Tribunal Act 2014
for a review of the determination or decision.
(5) In addition to section 30 of the
South
Australian Employment Tribunal Act 2014
, SAET may, at any stage of proceedings for the review of a decision that
has taken effect under this section, revoke the decision and order that the
officer be reinstated in the teaching service.
Section 29—delete the section and substitute:
29—Appointment and selection of supplementary panel
members for classification reviews
(1) For the purposes of
section 18A of the
South
Australian Employment Tribunal Act 2014
, there will be the following panels of supplementary panel
members:
(a) a panel of officers of the teaching service nominated by the
Australian Education Union;
(b) a panel of officers of the teaching service nominated by the
Director-General.
(2) In exercising its powers under the
South
Australian Employment Tribunal Act 2014
in proceedings related to an application for reclassification by an
officer of the teaching service under this Act, SAET will, if the President of
SAET so determines, sit with 1 supplementary panel member from each of the
panels referred to in
subsection (1)
.
77—Amendment
of section 30—Review of Director-General's decision
(1) Section 30(1)—delete "lodge with the Director-General an
application for a review of the classification of the officer or a position
occupied by the officer" and substitute:
apply to SAET under Part 3 Division 1 of the
South
Australian Employment Tribunal Act 2014
for a review of the decision.
(2) Section 30(2) to (7) (inclusive)—delete subsections (2) to (7)
and substitute:
(2) A decision of SAET under this section may not be the subject of an
application for review or an appeal under Part 5 of the
South
Australian Employment Tribunal Act 2014
.
Section 31—delete the section
79—Substitution
of Heading to Part 3 Division 8
Heading to Part 3 Division 8—delete the heading and
substitute:
Division 8—Promotional level
positions—appointments and reviews
80—Repeal
of sections 45 to 52 (inclusive)
Sections 45 to 52 (inclusive)—delete the sections
81—Amendment
of section 53—Promotional level positions—appointments and
reviews
(1) Section 53(3)(b)—delete "Institute of Teachers (one or more of
whom must be nominees of the Institute)," and substitute:
Australian Education Union (1 or more of whom must be nominees of the
Australian Education Union),
(2) Section 53(5) and (6)—delete subsections (5) and (6) and
substitute:
(5) An officer who receives notice of a provisional recommendation by the
Director-General in accordance with subsection (4), may apply to SAET under Part
3 Division 1 of the
South
Australian Employment Tribunal Act 2014
for a review of the provisional recommendation.
(6) No application for review may be made against a provisional
recommendation of the committee established under this section
unless—
(a) the provisional recommendation made by the committee is that an
officer be appointed to the vacant position; and
(b) the employing authority, acting on the recommendation of the
Director-General, declines to make the appointment.
(6a) If, on the recommendation of the Director-General, the employing
authority declines to make an appointment following a provisional recommendation
by the committee established under this section that an officer be appointed to
the vacant position, the officer in whose favour the provisional recommendation
was made may apply to SAET under Part 3 Division 1 of the
South
Australian Employment Tribunal Act 2014
for a review of the recommendation of the Director-General.
(3) Section 53(7)—delete subsection (7)
Section 54—delete the section and substitute:
54—Appointment and selection of supplementary panel
members for reviews
(1) For the purposes of
section 18A of the
South
Australian Employment Tribunal Act 2014
, there will be the following panels of supplementary panel
members:
(a) a panel of
employees in the Department appointed by the Governor on the nomination of the
Minister;
(b) a panel of officers
of the teaching service appointed by the Governor on the nomination of the
Australian Education Union made after elections have been held in accordance
with the regulations.
(2) In exercising its powers under the
South
Australian Employment Tribunal Act 2014
in proceedings under this Division related to an application for review by
an officer of the teaching service, SAET will, if the President of SAET so
determines, sit with—
(a) 1 supplementary panel member from the panel referred to in
subsection (1)(a)
; and
(b) 1 supplementary panel member from the panel referred to in
subsection (1)(b)
.
83—Amendment
of section 107—Regulations
Section 107(2)—after paragraph (f) insert:
(fa) the conferral of a right on an officer of the teaching service to
apply to SAET under Part 3 Division 1 of the
South
Australian Employment Tribunal Act 2014
for a review of administrative acts or decisions affecting the officer of
a kind or class prescribed by the regulations;
(1) In this section—
principal Act means the
Education
Act 1972
;
relevant day means the day on which this Part comes into
operation;
review panel means a classification review panel under Part 3
of the principal Act;
Tribunal means the South Australian Employment
Tribunal.
(2) The Appeal Board
under the principal Act is dissolved by force of this subsection (and so the
commencement of this subsection brings to an end the appointment of a person as
a member of the Appeal Board).
(3) No right of action arises, and no compensation is payable, in respect
of an appointment coming to an end by virtue of the operation of
subsection (2)
.
(4) A decision, direction or order of the Appeal Board under the principal
Act in force immediately before the relevant day will, on and from the relevant
day, be taken to be a decision, direction or order of the Tribunal.
(5) A right of appeal to the Appeal Board under the principal Act in
existence before the relevant day (but not exercised before that day) will be
exercised as if this Part had been in operation before the right arose, so that
the relevant proceedings may be commenced before the Tribunal rather than the
Appeal Board.
(6) Any proceedings before the Appeal Board under the principal Act
immediately before the relevant day will, subject to such directions as the
President of the Tribunal thinks fit, be transferred to the Tribunal where they
may proceed as if they had been commenced before that Tribunal.
(7) A decision of a review panel under the principal Act in force
immediately before the relevant day will, on and from the relevant day, be taken
to be a decision of the Tribunal.
(8) A right to have a matter referred to a review panel under the
principal Act in existence before the relevant day (but not exercised before
that day) will be exercised as if this Part had been in operation before the
right arose, so that the relevant proceedings may be commenced before the
Tribunal rather than referred to a review panel.
(9) Any proceedings before a review panel under the principal Act
immediately before the relevant day will, subject to such directions as the
President of the Tribunal thinks fit, be transferred to the Tribunal where they
may proceed as if they had been commenced before that Tribunal.
(10) The Tribunal may—
(a) receive in evidence any transcript of evidence in proceedings before
the Appeal Board or a review panel, and draw any conclusions of fact from that
evidence that appear proper; and
(b) adopt any findings or determinations of the Appeal Board or a review
panel that may be relevant to proceedings before the Tribunal; and
(c) adopt or make any decision (including a decision in the nature of a
determination), direction or order in relation to proceedings before the Appeal
Board or a review panel before the relevant day (including so as to make a
decision or determination, or a direction or order, in relation to proceedings
fully heard before the relevant day); and
(d) take other steps to promote or ensure the smoothest possible
transition from 1 jurisdiction to another in connection with the operation
of this section.
Part 9—Amendment
of Equal Opportunity
Act 1984
85—Amendment
of section 5(1)—Interpretation
(1) Section 5(1)—definition of member—delete the
definition
(2) Section 5(1)—definition of panel—delete the
definition
(3) Section 5(1)—definition of Tribunal—delete
the definition and substitute:
Tribunal means the South Australian Employment Tribunal
established under the
South
Australian Employment Tribunal Act 2014
;
86—Substitution
of heading to Part 2
Heading to Part 2—delete the heading and substitute:
Part 2—Commissioner
87—Repeal
of Part 2 Divisions 2 and 3
Part 2 Divisions 2 and 3—delete Divisions 2 and 3
88—Substitution
of heading to Part 8 Division 2
Heading to Part 8 Division 2—delete the heading and
substitute:
Division 2—Related matters
Section 98—delete the section
90—Amendment
of section 100—Proceedings under Fair Work
Act 1994
Section 100(6)—delete subsection (6) and substitute:
(6) The Commissioner may, with leave of the Tribunal in proceedings before
the Tribunal under the
Fair
Work Act 1994
, make submissions and present evidence in those proceedings.
After section 106 insert:
Schedule 1—Supplementary panel members for
proceedings before Tribunal
(1) For the purposes of
section 18A of the
South
Australian Employment Tribunal Act 2014
, there will be a panel of supplementary panel members who, in the opinion
of the Minister, have expertise that would be of value to the Tribunal in
dealing with the various classes of discrimination to which this Act
applies.
(2) For the purposes of any proceedings before the Tribunal under this
Act, the President of the Tribunal must consider whether 1 or more members of
the panel established under
subclause (1)
should sit as a member of the Tribunal.
(1) In this section—
principal Act means the
Equal
Opportunity Act 1984
;
relevant day means the day on which this Part comes into
operation;
SAET means the South Australian Employment
Tribunal;
Tribunal means the Equal Opportunity Tribunal established
under the
Equal
Opportunity Act 1984
.
(2) The Tribunal is dissolved by force of this subsection (and so the
commencement of this subsection brings to an end the appointment of a person as
a member of the Tribunal).
(3) No right of action arises, and no compensation is payable, in respect
of an appointment coming to an end by virtue of the operation of subsection
(2).
(4) A decision, direction or order of the Tribunal under the principal Act
in force immediately before the relevant day will, on and from the relevant day,
be taken to be a decision, direction of order of SAET.
(5) A right to take action with respect to any matter in existence before
the relevant day, with the effect that the relevant proceedings would have been
commenced before the Tribunal under the principal Act, will be exercised as if
this Part had been in operation before the right arose, so that the relevant
proceedings may be commenced instead before SAET.
(6) Any proceedings before the Tribunal under the principal Act
immediately before the relevant day will, subject to such directions as the
President of SAET thinks fit, be transferred to SAET where they may proceed as
if they had been commenced before SAET.
(7) SAET may—
(a) receive in evidence any transcript of evidence in proceedings before
the Tribunal, and draw any conclusions of fact from that evidence that appear
proper; and
(b) adopt any findings or determinations of the Tribunal that may be
relevant to proceedings before the Tribunal; and
(c) adopt or make any decision (including a decision in the nature of a
determination), direction or order in relation to proceedings before the
Tribunal before the relevant day (including so as to make a decision or
determination, or a direction or order, in relation to proceedings fully heard
before the relevant day); and
(d) take other steps to promote or ensure the smoothest possible
transition from 1 jurisdiction to another in connection with the operation
of this section.
Part 10—Amendment
of Fire and Emergency Services Act
2005
93—Amendment
of section 3—Interpretation
(1) Section 3(1), definition of award, (a)—delete "the
Industrial Relations Commission of South Australia" and substitute:
SAET
(2) Section 3(1), definition of Industrial Relations
Commission—delete the definition
(3) Section 3(1)—after the definition of SACFS region
insert:
SAET means the South Australian Employment Tribunal
established under the
South
Australian Employment Tribunal Act 2014
;
94—Amendment
of section 29—Other officers and firefighters
(1) Section 29(2)(c)—delete "appeal against the nomination to the
Industrial Relations Commission" and substitute:
apply to SAET under Part 3 Division 1 of the
South
Australian Employment Tribunal Act 2014
for a review of the nomination
(2) Section 29(2)(d) and (e)—delete paragraphs (d) and (e) and
substitute:
(d) the Chief Officer may confirm the nomination if no application is made
within the time allowed under paragraph (c) but if an application is so
made within such time then the Chief Officer must comply with any direction
given by SAET in the matter;
(e) in relation to a review instituted under
paragraph (c)—
(i) SAET will, if the President of SAET so determines, sit with
supplementary panel members selected in accordance with Schedule 1;
and
(ii) an applicant may appear personally or be represented by a member of
an industrial association to which the applicant belongs or by a legal
practitioner; and
(iii) the Chief Officer may appear personally or be represented by another
officer of SAMFS or, if an applicant is being represented by a legal
practitioner, the Chief Officer may also be represented by a legal practitioner;
and
(iv) SAET may, on hearing the review, confirm the appointment of the
person who has been nominated or direct the Chief Officer to revoke the
nomination and direct that an applicant be appointed to the position;
and
(v) in making its decision on a review, SAET must have regard to the
criteria (if any) relating to the appointment and promotion of officers or
firefighters that are contained in an award or industrial agreement that applies
in relation to the relevant position but, if no such criteria exist, the SAET
must have regard to the qualifications, aptitude and conduct of the person
nominated for the position and of the applicant or applicants; and
(vi) SAET may, in connection with the proceedings, award costs against
SAMFS but may not award costs against an applicant.
95—Amendment
of section 48—Suspension pending hearing of complaint
Section 48(2)—delete "the Industrial Relations Commission" and
substitute:
SAET
96—Substitution
of sections 49 and 50
Sections 49 and 50—delete the sections and substitute:
49—Review by SAET
(1) An officer or
firefighter who is aggrieved by a decision of the Disciplinary Committee or the
Chief Officer pursuant to Subdivision 2 may apply to SAET under Part 3
Division 1 of the
South
Australian Employment Tribunal Act 2014
for a review of the decision.
(2) In connection with the operation of
subsection (1)
—
(a) an application for review by SAET must be made within 14 days of
the making of the decision referred to in
subsection (1)
; and
(b) the Chief Officer is entitled to appear and be heard on a review;
and
(c) the applicant may appear personally or be represented by a member of
an industrial association to which the applicant belongs or by a legal
practitioner; and
(d) the Chief Officer may appear personally or be represented by another
officer of SAMFS or, if the applicant is represented by a legal practitioner,
the Chief Officer may also be represented by a legal practitioner; and
(e) SAET may award costs against SAMFS but may not award costs against the
applicant.
97—Amendment
of section 51—Participation of supplementary panel members in
reviews
Section 51—delete "the Industrial Relations Commission will sit with
assessors" and substitute:
SAET will, if the President of SAET so determines, sit with supplementary
panel members
Schedule 1—delete the Schedule and substitute:
Schedule 1—Appointment and selection of
supplementary panel members for reviews under Part 3
(1) For
the purposes of proceedings before SAET, there will be the following panels of
supplementary panel members:
(a) a panel of persons nominated by the Chief Officer of SAMFS;
(b) a panel of officers nominated by UFU;
(c) a panel of firefighters nominated by UFU.
(2) In exercising its powers under the
South
Australian Employment Tribunal Act 2014
for the purposes of this Act, SAET will, if the President of SAET so
determines, be constituted by 3 members selected by the President of
whom—
(a) 1 will be selected from the panel of nominees of the Chief
Officer of SAMFS; and
(b) —
(i) if the applicant is an officer—1 will be selected from the
panel of officers nominated by UFU; or
(ii) if the applicant is a firefighter—1 will be selected from
the panel of firefighters nominated by UFU.
(1) In this section—
principal Act means the
Fire
and Emergency Services Act 2005
;
relevant day means the day on which this Part comes into
operation;
Tribunal means the South Australian Employment
Tribunal.
(2) A decision, direction, determination or order of the Industrial
Relations Commission of South Australia under the principal Act in force
immediately before the relevant day will, on and from the relevant day, be taken
to be a decision, direction, determination or order of the Tribunal.
(3) A right of appeal with respect to any matter in existence before the
relevant day, with the effect that the relevant proceedings would have been
commenced before the Industrial Relations Commission of South Australia under
the principal Act, will be exercised as if this Part had been in operation
before the right arose, so that the relevant proceedings may be commenced
instead before the Tribunal.
(4) Any proceedings before the Industrial Relations Commission of South
Australia under the principal Act immediately before the relevant day will,
subject to such directions as the President of the Tribunal thinks fit, be
transferred to the Tribunal where they may proceed as if they had been commenced
before that Tribunal.
(5) The Tribunal may—
(a) receive in evidence any transcript of evidence in proceedings before
the Industrial Relations Commission, and draw any conclusions of fact from that
evidence that appear proper; and
(b) adopt any findings or determinations of the Industrial Relations
Commission that may be relevant to proceedings before the Tribunal;
and
(c) adopt or make any decision (including a decision in the nature of a
determination), direction or order in relation to proceedings before the
Industrial Relations Commission before the relevant day (including so as to make
a decision or determination, or a direction or order, in relation to proceedings
fully heard before the relevant day); and
(d) take other steps to promote or ensure the smoothest possible
transition from 1 jurisdiction to another in connection with the operation
of this section.
Part 11—Amendment
of Industrial Referral Agreements
Act 1986
100—Amendment
of section 3—Referral of matter to SAET by agreement
(1) Section 3—delete "the Commission" wherever occurring and
substitute in each case:
SAET
(2) Section 3(6)—delete "section 26" and substitute:
section 7
(3) Section 3(7)—after "the
Fair
Work Act 1994
" insert:
and the
South
Australian Employment Tribunal Act 2014
(4) Section 3(8)—delete subsection (8)
(5) Section 3(9)—delete "the
Fair
Work Act 1994
and any regulations made for the purposes of subsection (7), and
without limiting section 178 of the
Fair
Work Act 1994
" and substitute:
any regulations made for the purposes of subsection (7)
(6) Section 3(10)—delete "the Commission or the Court" and
substitute:
SAET
(7) Section 3(11)—delete subsection (11)
(8) Section 3(12) and (13)—delete "The Commission" wherever
occurring and substitute in each case:
SAET
(9) Section 13(14)—delete subsection (14) and substitute:
(14) The following provisions apply in connection with the application of
Part 5 of the
South
Australian Employment Tribunal Act 2014
in relation to a determination under this section:
(a) if the referral agreement provides that a determination will be final
and conclusive, the determination will not be subject to review or appeal under
Part 5 of the
South
Australian Employment Tribunal Act 2014
;
(b) if an application for review or appeal under Part 5 of the
South
Australian Employment Tribunal Act 2014
is made, the determination will be taken to be part of the referral to
SAET under the referral agreement.
(10) Section 3(15)—delete "appeal" and substitute:
application
(11) Section 3(16)—after "the
Fair
Work Act 1994
" insert:
and the
South
Australian Employment Tribunal Act 2014
(1) In this section—
principal Act means the
Industrial
Referral Agreements Act 1986
;
relevant day means the day on which this Part comes into
operation;
Tribunal means the South Australian Employment
Tribunal.
(2) A decision, direction, determination or order of the Industrial
Relations Commission of South Australia under the principal Act in force
immediately before the relevant day will, on and from the relevant day, be taken
to be a decision, direction, determination or order of the Tribunal.
(3) A right to take action with respect to any matter in existence before
the relevant day, with the effect that the relevant proceedings would have been
commenced before the Industrial Relations Commission of South Australia under
the principal Act, will be exercised as if this Part had been in operation
before the right arose, so that the relevant proceedings may be commenced
instead before the Tribunal.
(4) Any proceedings before the Industrial Relations Commission of South
Australia under the principal Act immediately before the relevant day will,
subject to such directions as the President of the Tribunal thinks fit, be
transferred to the Tribunal where they may proceed as if they had been commenced
before that Tribunal.
(5) The Tribunal may—
(a) receive in evidence any transcript of evidence in proceedings before
the Industrial Relations Commission, and draw any conclusions of fact from that
evidence that appear proper; and
(b) adopt any findings or determinations of the Industrial Relations
Commission that may be relevant to proceedings before the Tribunal;
and
(c) adopt or make any decision (including a decision in the nature of a
determination), direction or order in relation to proceedings before the
Industrial Relations Commission before the relevant day (including so as to make
a decision or determination, or a direction or order, in relation to proceedings
fully heard before the relevant day); and
(d) take other steps to promote or ensure the smoothest possible
transition from 1 jurisdiction to another in connection with the operation
of this section.
Part 12—Amendment
of Judges' Pensions
Act 1971
102—Amendment
of section 4—Interpretation
Section 4(1), definition of Judge, (c) and (ca)—delete
paragraphs (c) and (ca)
Part 13—Amendment
of Long Service Leave
Act 1987
103—Amendment
of section 3—Interpretation
(1) Section 3(1), definition of award, (a)—delete "the
Industrial Relations Commission" and substitute:
SAET
(2) Section 3(1), definitions of the Industrial Relations
Commission and the Industrial Relations Court—delete
the definitions
(3) Section 3(1)—after the definition of the relevant
date insert:
SAET means the South Australian Employment Tribunal
established under the
South
Australian Employment Tribunal Act 2014
;
104—Amendment
of section 6—Continuity of service
(1) Section 6(1)(a)—delete "the Court or the Industrial Relations
Commission" and substitute:
SAET
(2) Section 6(1)(a)—delete "a Court or the Industrial Relations
Commission" and substitute:
a court or SAET
105—Amendment
of section 9—Exemptions
(1) Section 9(1)—delete "the Industrial Relations Commission" and
substitute:
SAET
(2) Section 9(6)—delete "The Industrial Relations Commission" and
substitute:
SAET
106—Amendment
of section 12—Inspector may direct employer to grant leave or pay amount
due
(1) Section 12(2)—delete "the Industrial Relations Court for a
review of the notice" and substitute:
SAET under Part 3 Division 1 of the
South
Australian Employment Tribunal Act 2014
for a review of the notice
(2) Section 12(5)—delete subsection (5)
(3) Section 12(6)(b)—delete "the Industrial Relations Court within a
period specified by the Court" and substitute:
SAET within a period specified by SAET
107—Amendment
of section 13—Failure to grant leave
(1) Section 13(1)—delete "the Industrial Relations Court" and
substitute:
SAET
(2) Section 13(3)—delete "the Court" and substitute:
SAET
(3) Section 13(5)—delete subsection (5)
(1) In this section—
principal Act means the
Long
Service Leave Act 1987
;
relevant day means the day on which this Part comes into
operation;
Tribunal means the South Australian Employment
Tribunal.
(2) A decision, direction, determination or order of the Industrial
Relations Commission of South Australia or the Industrial Relations Court of
South Australia (as the case may be) under the principal Act in force
immediately before the relevant day will, on and from the relevant day, be taken
to be a decision, direction, determination or order of the Tribunal.
(3) A right to make any application or referral, or to seek a review, with
respect to any matter in existence before the relevant day, with the effect that
the relevant proceedings would have been commenced before the Industrial
Relations Commission of South Australia or before the Industrial Relations Court
of South Australia under the principal Act, will be exercised as if this Part
had been in operation before the right arose, so that the relevant proceedings
may be commenced instead before the Tribunal.
(4) Any proceedings before the Industrial Relations Commission of South
Australia under section 9 of the principal Act or otherwise before the
Industrial Relations Court of South Australia under the principal Act
immediately before the relevant day will, subject to such directions as the
President of the Tribunal thinks fit, be transferred to the Tribunal where they
may proceed as if they had been commenced before that Tribunal.
(5) The Tribunal may—
(a) receive in evidence any transcript of evidence in proceedings before
the Industrial Relations Commission or the Industrial Relations Court (as the
case may be), and draw any conclusions of fact from that evidence that appear
proper; and
(b) adopt any findings or determinations of the Industrial Relations
Commission or the Industrial Relations Court (as the case may be) that may be
relevant to proceedings before the Tribunal; and
(c) adopt or make any decision (including a decision in the nature of a
determination), direction or order in relation to proceedings before the
Industrial Relations Commission or the Industrial Relations Court (as the case
may be) before the relevant day (including so as to make a decision or
determination, or a direction or order, in relation to proceedings fully heard
before the relevant day); and
(d) take other steps to promote or ensure the smoothest possible
transition from 1 jurisdiction to another in connection with the operation
of this section.
Part 14—Amendment
of Magistrates Court
Act 1991
109—Amendment
of section 42—Appeals
Section 42(2)(a)—delete paragraph (a)
110—Amendment
of section 43—Reservation of question of law
Section 43(2)(a)—delete paragraph (a)
Part 15—Amendment
of Oaths Act 1936
111—Amendment
of section 28—Commissioners for taking affidavits
Section 28(1)(ca)—delete "Industrial Relations Court" and
substitute:
South Australian Employment Tribunal
Part 16—Amendment
of Police Act 1998
112—Amendment
of section 3—Interpretation
Section 3—after the definition of Police Review
Tribunal insert:
SAET means the South Australian Employment Tribunal
established under the
South
Australian Employment Tribunal Act 2014
;
113—Amendment
of section 48—Right of review
(1) Section 48(1)—delete "the police review tribunal" and
substitute:
SAET under Part 3 Division 1 of the
South
Australian Employment Tribunal Act 2014
(2) Section 48(2)—delete subsection (2) and substitute:
(2) An application for review of the decision must be made to SAET within
the period prescribed by regulation.
(3) Section 48(3)—delete "The Tribunal" and substitute:
SAET
114—Repeal
of sections 49, 50 and 51
Sections 49, 50 and 51—delete the sections
115—Amendment
of section 52—Review of certain transfers
(1) Section 52(1)—delete "the Police Review Tribunal" and
substitute:
SAET under Part 3 Division 1 of the
South
Australian Employment Tribunal Act 2014
(2) Section 52(2)—delete subsection (2) and substitute:
(2) An application for review of the decision must be made to SAET within
the period prescribed by regulation.
(3) Section 52(3)—delete "The Tribunal" and substitute:
SAET
(4) Section 52(4)—delete "the Tribunal" wherever occurring and
substitute in each case:
SAET
116—Amendment
of Schedule 1—Police Review Tribunal
Schedule 1—delete clause 1A
(1) In this section—
principal Act means the
Police
Act 1998
;
relevant day means the day on which this Part comes into
operation;
SAET means the South Australian Employment
Tribunal.
(2) A decision, direction or order of the Police Review Tribunal under
Part 8 Division 1 or 2 of the principal Act in force immediately before the
relevant day will, on and from the relevant day, be taken to be a decision,
direction or order of SAET.
(3) A right to apply to the Police Review Tribunal under Part 8 Division 1
or 2 of the principal Act in existence before the relevant day (but not
exercised before that day) will be exercised as if this Part had been in
operation before the right arose, so that the relevant proceedings may be
commenced before SAET rather than the Police Review Tribunal.
(4) Any proceedings before the Police Review Tribunal under Part 8
Division 1 or 2 of the principal Act immediately before the relevant day will,
subject to such directions as the President of SAET thinks fit, be transferred
to SAET where they may proceed as if they had been commenced before
SAET.
(5) SAET may—
(a) receive in evidence any transcript of evidence in proceedings before
the Police Review Tribunal, and draw any conclusions of fact from that evidence
that appear proper; and
(b) adopt any findings or determinations of the Police Review Tribunal
that may be relevant to proceedings before SAET; and
(c) adopt or make any decision (including a decision in the nature of a
determination), direction or order in relation to proceedings before the Police
Review Tribunal before the relevant day (including so as to make a decision or
determination, or a direction or order, in relation to proceedings fully heard
before the relevant day); and
(d) take other steps to promote or ensure the smoothest possible
transition from 1 jurisdiction to another in connection with the operation
of this section.
Part 17—Amendment
of Public Sector
Act 2009
118—Amendment
of section 3—Interpretation
(1) Section 3(1)—after the definition of Commissioner
insert:
decision, of SAET, has the same meaning as in the
South
Australian Employment Tribunal Act 2014
;
(2) Section 3(1), definition of Industrial Relations
Commission—delete the definition
(3) Section 3(1), definition of Public Sector Grievance Review
Commission—delete the definition
(4) Section 3(1)—after the definition of SAES charter
insert:
SAET means the South Australian Employment Tribunal
established under the
South
Australian Employment Tribunal Act 2014
;
119—Amendment
of section 25—Public Service employees
Section 25(2)(j)—delete paragraph (j)
120—Amendment
of section 49—Remuneration
Section 49(4)—delete "Public Sector Grievance Review Commission" and
substitute:
SAET
121—Amendment
of section 58—Application of unfair dismissal provisions of Fair Work
Act
Section 58—delete "the Industrial Relations Commission" wherever
occurring and substitute in each case:
SAET
122—Amendment
of section 62—External review
(1) Section 62—delete "appropriate review body" wherever occurring
and substitute in each case:
SAET
(2) Section 62—after subsection (4) insert:
(4a) Section 30(1) and (2) of the
South
Australian Employment Tribunal Act 2014
does not apply to or in relation to a decision of SAET acting as the
review body under this section.
(4b) A decision of SAET under this section may not be the subject of an
application for review or an appeal under Part 5 of the
South
Australian Employment Tribunal Act 2014
.
(3) Section 62(8), definition of appropriate review
body—delete the definition
123—Amendment
of section 64—Application of Fair Work
Act 1994 and South Australian Employment Tribunal
Act 2014
(1) Section 64(1)—delete "the
Fair
Work Act 1994
to proceedings of the Industrial Relations Commission" and
substitute:
and the
South
Australian Employment Tribunal Act 2014
to proceedings before SAET
(2) Section 64(2)—delete subsection (2)
124—Substitution
of Schedule 2
Schedule 2—delete the Schedule and substitute:
Schedule 2—Special provisions relating to
Tribunal
1—Supplementary panel members
(1) For the purposes of section 18A of the
South
Australian Employment Tribunal Act 2014
there will be the following panels of supplementary panel
members:
(a) a panel of public sector employees nominated by the Commissioner for
Public Sector Employment;
(b) a panel of public sector employees nominated by public sector
representative organisations.
(2) The Minister may, from time to time, invite the public sector
representative organisations to nominate employees to constitute a
panel.
(3) If a public sector representative organisation fails to make a
nomination in response to an invitation within the time allowed in the
invitation, the Minister may choose public sector employees instead of nominees
of the organisation and any employees so chosen are to be taken to have been
nominated to the relevant panel.
2—Constitution of Tribunal and other
matters
(1) In exercising its powers for the purposes of this Act, SAET will, if
the President of SAET so determines, be constituted by 3 members of
whom—
(a) 1 will be selected from the panel of nominees of the Commissioner for
Public Sector Employment by the President of SAET for the purpose of the
proceedings; and
(b) 1 will be selected from the panel of nominees of public sector
representative organisations for the purpose of the proceedings—
(i) by the applicant for review; or
(ii) if there are 2 or more applicants and they do not agree on the
selection of a nominee—by the President of SAET.
(2) A member of SAET who is a public sector employee is not subject to
direction as an employee in respect of the performance of duties as a member of
SAET.
(3) SAET must endeavour to complete any review within 3 months and
must, in any event, proceed as quickly as a proper consideration of the matter
allows.
(1) In this section—
principal Act means the
Public
Sector Act 2009
;
PSGRC means the Public Sector Grievance Review
Commission;
relevant day means the day on which this Part comes into
operation;
Tribunal means the South Australian Employment
Tribunal.
(2) A right to apply to PSGRC for a review of a decision under the
principal Act in existence before the relevant day (and not exercised before
that day) will be exercised as if this Part had been in operation before that
right arose, so that the relevant proceedings may be commenced instead before
the Tribunal.
(3) Nothing in this section affects any proceedings before PSGRC commenced
before the relevant day.
(4) The Governor
may, when the Governor thinks it is appropriate to do so, by proclamation,
dissolve PSGRC.
(5) When a proclamation is made under
subsection (4)
any member of PSGRC, or member of a panel constituted for the purposes of
PSGRC, holding office at the time of the making of the proclamation will cease
to hold office and any contract of employment, agreement or arrangement relating
to the office held by that member is terminated by force of this subsection at
the same time (and no right of action will arise against a Minister or the State
on account of that termination).
(6) A decision, direction or order of the Industrial Relations Commission
of South Australia under the principal Act in force immediately before the
relevant day will, on and from the relevant day, be taken to be a decision,
direction or order of the Tribunal.
(7) A right to make any application or referral, or to seek a review, with
respect to any matter in existence before the relevant day, with the effect that
the relevant proceedings would have been commenced before the Industrial
Relations Commission of South Australia under the principal Act will be
exercised as if this Part had been in operation before the right arose, so that
the relevant proceedings may be commenced instead before the Tribunal.
(8) Any proceedings before the Industrial Relations Commission of South
Australia under the principal Act immediately before the relevant day will,
subject to such directions as the President of the Tribunal thinks fit, be
transferred to the Tribunal where they may proceed as if they had been commenced
before that Tribunal.
(9) The Tribunal may—
(a) receive in evidence any transcript of evidence in proceedings before
the Industrial Relations Commission, and draw any conclusions of fact from that
evidence that appear proper; and
(b) adopt any findings or determinations of the Industrial Relations
Commission that may be relevant to proceedings before the Tribunal;
and
(c) adopt or make any decision (including a decision in the nature of a
determination), direction or order in relation to proceedings before the
Industrial Relations Commission before the relevant day (including so as to make
a decision or determination, or a direction or order, in relation to proceedings
fully heard before the relevant day); and
(d) take other steps to promote or ensure the smoothest possible
transition from 1 jurisdiction to another in connection with the operation
of this section.
Part 18—Amendment
of Summary Procedure
Act 1921
126—Amendment
of section 4—Interpretation
(1) Section 4(1), definition of industrial
magistrate—delete the definition
(2) Section 4(1), definition of industrial
offence—delete the definition
Section 8—delete the section
Part 19—Amendment
of Technical and Further Education
Act 1975
128—Amendment
of section 4—Interpretation
(1) Section 4(1), definition of the Appeal
Board—delete the definition
(2) Section 4(1)—after the definition of officer
insert:
SAET means the South Australian Employment Tribunal
established under the
South
Australian Employment Tribunal Act 2014
;
129—Substitution
of section 17A
Section 17A—delete the section and substitute:
18—Appointment and selection of supplementary panel
members for reviews
(1) For the purposes of
section 18A of the
South
Australian Employment Tribunal Act 2014
, there will be the following panels of supplementary panel
members:
(a) a panel of employees in the Department nominated by the
Minister;
(b) a panel of officers appointed under section 15 nominated by the
Australian Education Union made after elections have been held in accordance
with the regulations.
(2) In exercising its powers under the
South
Australian Employment Tribunal Act 2014
in proceedings related to an application for review by an officer
appointed under section 15, SAET will, if the President of SAET so determines,
sit with members from each of the panels referred to in
subsection (1)
.
18A—Review by SAET
(1) An officer may, within 14 days after receiving notice of a
determination or decision under this Division to terminate the officer's
appointment or retrench, transfer or retire the officer, apply to SAET under
Part 3 Division 1 of the
South
Australian Employment Tribunal Act 2014
for a review of the determination or decision.
(2) In addition to section 30 of the
South
Australian Employment Tribunal Act 2014
, SAET may, at any stage of proceedings for the review of a determination
or a decision that has taken effect under this section, revoke the determination
or the decision and order that the officer be reinstated as an officer appointed
under section 15.
130—Amendment
of section 26—Disciplinary action
(1) Section 26(4)—delete "appeal to the Appeal Board against the
determination or decision" and substitute:
apply to SAET under Part 3 Division 1 of the
South
Australian Employment Tribunal Act 2014
for a review of the determination or decision
(2) Section 26(5)—delete subsection (5) and substitute:
(5) In addition to section 30 of the
South
Australian Employment Tribunal Act 2014
, SAET may, at any stage of proceedings for the review of a determination
or a decision that has taken effect under this section, revoke the determination
or the decision and order that the officer be re-instated as an officer
appointed under section 15.
131—Amendment
of section 43—Regulations
(1) Section 43(2)(l)—delete "a right of appeal to the Appeal Board
against" and substitute:
a right to apply to SAET for review of
(2) Section 43(2)(l)—delete "appeal" and substitute:
review
(1) In this section—
principal Act means the
Technical
and Further Education Act 1975
;
relevant day means the day on which this Part comes into
operation;
Tribunal means the South Australian Employment
Tribunal.
(2) The Appeal Board
under the principal Act is dissolved by force of this subsection (and so the
commencement of this subsection brings to an end the appointment of a person as
a member of the Tribunal).
(3) No right of action arises, and no compensation is payable, in respect
of an appointment coming to an end by virtue of the operation of
subsection (2)
.
(4) A decision, direction or order of the Appeal Board under the principal
Act in force immediately before the relevant day will, on and from the relevant
day, be taken to be a decision, direction or order of the Tribunal.
(5) A right of appeal under sections 17A or 26 of the principal Act in
existence before the relevant day (but not exercised before that day) will be
exercised as if this Part had been in operation before the right arose, so that
the relevant proceedings may be commenced before the Tribunal rather than the
Appeal Board.
(6) Any proceedings before the Appeal Board under the principal Act
immediately before the relevant day will, subject to such directions as the
President of the Tribunal thinks fit, be transferred to the Tribunal where they
may proceed as if they had been commenced before that Tribunal.
(7) The Tribunal may—
(a) receive in evidence any transcript of evidence in proceedings before
the Appeal Board, and draw any conclusions of fact from that evidence that
appear proper; and
(b) adopt any findings or determinations of the Appeal Board that may be
relevant to proceedings before the Tribunal; and
(c) adopt or make any decision (including a decision in the nature of a
determination), direction or order in relation to proceedings before the Appeal
Board before the relevant day (including so as to make a decision or
determination, or a direction or order, in relation to proceedings fully heard
before the relevant day); and
(d) take other steps to promote or ensure the smoothest possible
transition from 1 jurisdiction to another in connection with the operation
of this section.
Part 20—Amendment
of Training and Skills Development
Act 2008
133—Amendment
of section 4—Interpretation
(1) Section 4(1), definition of Industrial Relations
Commission—delete the definition
(2) Section 4(1)—after the definition of repealed Act
insert:
SAET means the South Australian Employment Tribunal
established under the
South
Australian Employment Tribunal Act 2014
;
134—Amendment
of section 49—Term of training contracts
Section 49—delete "the Industrial Relations Commission" wherever
occurring and substitute in each case:
SAET
135—Amendment
of section 63—Compliance notices
(1) Section 63(3)—delete "the Industrial Relations Commission for a
review of the notice" and substitute:
SAET under Part 3 Division 1 of the
South
Australian Employment Tribunal Act 2014
for a review of the notice
(2) Section 63(3)—delete "the Industrial Relations Commission"
wherever occurring and substitute in each case:
SAET
136—Amendment
of section 64—Employer may suspend apprentice/trainee for serious
misconduct
(1) Section 64—delete "the Industrial Relations Commissioner"
wherever occurring and substitute in each case:
SAET
(2) Section 64—after subsection (2) insert:
(3) A referral to SAET under this section will be dealt with under Part 3
Division 1 of the
South
Australian Employment Tribunal Act 2014
.
137—Amendment
of section 65—Other matters to be dealt with by SAET
(1) Section 65(1)—delete "the Industrial Relations Commission" and
substitute:
SAET
(2) Section 65(2)—delete "The Industrial Relations Commission" and
substitute:
SAET
(3) Section 65(2) to (8) (inclusive)—delete "the Industrial
Relations Commission" wherever occurring and substitute in each case:
SAET
(4) Section 65(9)—delete "The Industrial Relations Commission" and
substitute:
SAET
138—Substitution
of section 66
Section 66—delete the section and substitute:
66—Holding of compulsory conciliation
conferences
For the purposes of section 43 of the
South
Australian Employment Tribunal Act 2014
, in relation to proceedings before SAET under this Division (other than
applications for review of a compliance notice issued under section 63),
parties are required to attend a compulsory conciliation conference.
139—Amendment
of section 67—Representation in proceedings before
SAET
Section 67(1)—delete "the Industrial Relations Commission" wherever
occurring and substitute in each case:
SAET
(1) In this section—
principal Act means the
Fair
Work Act 1994
;
relevant day means the day on which this Part comes into
operation;
Tribunal means the South Australian Employment
Tribunal.
(2) A decision, direction or order of the Industrial Relations Commission
of South Australia under the principal Act in force immediately before the
relevant day will, on and from the relevant day, be taken to be a decision,
direction or order of the Tribunal.
(3) A right to make any application, or to seek a review, or lodge an
appeal under the principal Act with respect to any matter in existence before
the relevant day, with the effect that the relevant proceedings would have been
commenced before the Industrial Commission of South Australia, will be exercised
as if this Part had been in operation before the right arose, so that the
relevant proceedings may be commenced instead before the Tribunal.
(4) Any proceedings before the Industrial Commission of South Australia
under the principal Act immediately before the relevant day will, subject to
such directions as the President of the Tribunal thinks fit, be transferred to
the Tribunal where they may proceed as if they had been commenced before the
Tribunal.
(5) The Tribunal may—
(a) receive in evidence any transcript of evidence in proceedings before
the Industrial Commission, and draw any conclusions of fact from that evidence
that appear proper; and
(b) adopt any findings or determinations of the Industrial Commission that
may be relevant to proceedings before the Tribunal; and
(c) adopt or make any decision (including a decision in the nature of a
permission), direction or order in relation to proceedings before the Industrial
Commission (as the case may be) before the relevant day (including so as to make
a decision or give a permission, direction or order, in relation to proceedings
fully heard before the relevant day); and
(d) take other steps to promote or ensure the smoothest possible
transition from 1 jurisdiction to another in connection with the
operation of this section.
Part 21—Amendment
of Work Health and Safety
Act 2012
141—Amendment
of section 4—Definitions
(1) Section 4, definition of authorising
authority—delete "the Industrial Relations Commission of South
Australia" and substitute:
SAET
(2) Section 4, definition of industrial
magistrate—delete the definition
(3) Section 4, definition of Industrial
Registrar—delete the definition
(4) Section 4, definition of IRC—delete the
definition
(5) Section 4—after the definition of RTWSA
insert:
SAET means the South Australian Employment Tribunal
established under the
South
Australian Employment Tribunal Act 2014
;
142—Amendment
of section 65—Disqualification of health and safety
representatives
(1) Section 65(1)—delete "the Senior Judge of the IRC for a review
committee" and substitute:
SAET
(2) Section 65(3)—delete subsection (3) and substitute:
(3) If SAET is satisfied that a ground in subsection (1) is made out,
SAET may disqualify the health and safety representative for a specified period
or indefinitely.
143—Amendment
of section 112—Civil proceedings in relation to engaging in or inducing
discriminatory or coercive conduct
(1) Section 112(1)—delete "the IRC" and substitute:
SAET
(2) Section 112(2)—delete "The IRC" and substitute:
SAET
(3) Section 112(3) and (5)—delete "the IRC" wherever occurring and
substitute in each case:
SAET
144—Amendment
of section 114—General provisions relating to orders
Section 114—delete "the IRC" wherever occurring and substitute in
each case:
SAET
145—Amendment
of section 215—Injunctions for noncompliance with
notices
Section 215(1)—delete "the IRC" and substitute:
SAET
146—Amendment
of section 229—Application for external review
(1) Section 229(1)—delete "the Senior Judge of the IRC for review
(an external review) of" and substitute:
SAET under Part 3 Division 1 of the
South
Australian Employment Tribunal Act 2014
for a review of
(2) Section 229(3) to (6) (inclusive)—delete the
subsections
147—Amendment
of section 230—Prosecutions
(1) Section 230—after subsection (3) insert:
(3a) The South Australian Employment Court is conferred with jurisdiction
to try a charge for a summary offence or a minor indictable offence (if such an
offence is to be dealt with as a summary offence) under this Act.
(2) Section 230(4)—delete "the court" and substitute:
the South Australian Employment Court
(3) Section 230(5)—delete subsection (5) and substitute:
(5) An offence constituted by a summary offence under subsection (4) will
be taken to be a summary offence that lies within the jurisdiction of the South
Australian Employment Court.
(4) Section 230(7) and (8)—delete subsections (7) and (8) and
substitute:
(7) A preliminary examination for an indictable offence under this Act
must be conducted by a magistrate who is a member of the South Australian
Employment Court.
(8) A charge for a minor indictable offence under this Act that is to be
dealt with as a charge for a summary offence under the
Summary
Procedure Act 1921
will be heard by a magistrate who is a member of the South Australian
Employment Court (and the Court is vested with jurisdiction to deal with the
matter).
148—Amendment
of section 255—Proceedings for contravention of WHS civil penalty
provision
Section 255—delete "the IRC" and substitute:
SAET
149—Amendment
of section 258—Civil proceeding rules and procedure to
apply
Section 258—delete "The IRC" and substitute:
Despite section 32 of the
South
Australian Employment Tribunal Act 2014
, SAET
150—Amendment
of section 259—Proceeding for a contravention of a WHS civil penalty
provision
Section 259(1)—delete "the IRC" wherever occurring and substitute in
each case:
SAET
151—Amendment
of section 262—Recovery of a monetary penalty
Section 262—delete "If the IRC" and substitute:
In connection with proceedings before SAET for the purposes of this
Division, if SAET
152—Amendment
of section 263—Civil double jeopardy
Section 263—delete "The IRC" and substitute:
SAET
153—Amendment
of Schedule 3, clause 14
Schedule 3, clause 14—delete "the IRC" and substitute:
SAET
154—Substitution
of Schedule 4
Schedule 4—delete the Schedule and substitute:
Schedule 4—Supplementary panel
members
1—Supplementary panel members
(1) For the
purposes of proceedings before SAET under section 65 or Part 12, there will be
the following panels of supplementary panel members:
(a) a panel
nominated by the Minister after taking into account the recommendations of
employer associations;
(b) a panel nominated
by the Minister after taking into account the recommendations of the United
Trades and Labor Council.
(2) In exercising its powers under a provision referred to in subclause
(1), SAET will, if the President of SAET so determines, sit
with—
(a) 1 supplementary panel member from a panel referred to in
subclause (1)(a)
; and
(b) 1 supplementary panel member from a panel referred to in
subclause (1)(b)
.
(1) In this section—
principal Act means the
Work
Health and Safety Act 2012
;
relevant day means the day on which this Part comes into
operation;
Tribunal means the South Australian Employment
Tribunal.
(2) A decision, direction or order of the Industrial Relations Court of
South Australia or a review committee under the principal Act in force
immediately before the relevant day will, on and from the relevant day, be taken
to be a decision, direction or order of the Tribunal.
(3) A right to make any application, or to seek a review, or lodge an
appeal under the principal Act with respect to any matter in existence before
the relevant day, with the effect that the relevant proceedings would have been
commenced before the Industrial Relations Court of South Australia or a review
committee, will be exercised as if this Part had been in operation before the
right arose, so that the relevant proceedings may be commenced instead before
the Tribunal.
(4) Any proceedings before the Industrial Relations Court of South
Australia or a review committee under the principal Act immediately before the
relevant day will, subject to such directions as the President of the Tribunal
thinks fit, be transferred to the Tribunal where they may proceed as if they had
been commenced before the Tribunal.
(5) The Tribunal may—
(a) receive in evidence any transcript of evidence in proceedings before
the Industrial Relations Court or a review committee, and draw any conclusions
of fact from that evidence that appear proper; and
(b) adopt any findings or determinations of the Industrial Relations Court
or a review committee that may be relevant to proceedings before the Tribunal;
and
(c) adopt or make any decision (including a decision in the nature of a
permission), direction or order in relation to proceedings before the Industrial
Relations Court or a review committee before the relevant day (including so as
to make a decision or give a permission, direction or order, in relation to
proceedings fully heard before the relevant day); and
(d) take other steps to promote or ensure the smoothest possible
transition from 1 jurisdiction to another in connection with the
operation of this section.