South Australian Consolidated Acts South Australian Consolidated ActsSchedule 1—Industrial Relations Commission may act on a referral of a
matter by agreement
(1) A word or
expression used in this Schedule that is the subject of a definition under
section 4 of the Fair Work Act 1994 when used in that Act will have
the same meaning in this Schedule as it has in that Act.
(2) To avoid doubt, a
reference to the Court in this Schedule is a reference to the Industrial
Relations Court of South Australia.
2—Referral of matter to Industrial Relations Commission by agreement
(1) This clause
applies to an industrial matter or an industrial dispute if 2 or more parties
have entered into an agreement in writing (a referral agreement ) to seek the
assistance of the Commission by making a referral to the Commission in order
to obtain (as the case may be)—
(a) the
resolution of an industrial matter arising between the parties (including by
making a determination about levels of remuneration, conditions of employment
or other industrial matters);
(b) the
resolution of an industrial dispute between the parties (including by settling
a dispute about whether appropriate remuneration has been paid to a person
under a contract of employment or whether there has been a breach of a
condition of employment);
(c) the
resolution of the question whether, on the balance of probabilities, the
dismissal of an employee was harsh, unjust or unreasonable.
(2) A referral
agreement may relate to a particular matter or dispute, or to matters or
disputes of a specified class.
(3) The parties to a
referral agreement may be—
(a) an
employer, or group of employers;
(b) an
employee, or group of employees;
(c) a
registered association;
(d) the
United Trades and Labor Council.
(4) The parties to a
referral agreement may agree that the Commission is—
(a) to
act as a conciliator, mediator or arbitrator;
(b) to
make recommendations to the parties;
(c) to
make determinations or orders that the parties agree to accept or observe,
as specified in the referral agreement.
(5) A party seeking
the assistance of the Commission under a referral agreement will do so in
accordance with the rules.
(6) On a referral
under this Schedule, the Commission has and may perform or exercise such
functions or powers with respect to the matter as the Commission might
exercise in the exercise of its jurisdiction under section 26 of the Fair
Work Act 1994 , subject to any limitation or exclusion specified in the
referral agreement and not so as to give any form of relief outside the
referral agreement.
(7) The regulations
may make provision for or with respect to the application of the provisions of
the Fair Work Act 1994 (with such modifications, if any, as may be
prescribed by the regulations) to the performance or exercise of functions or
powers under this Schedule.
(8) Subject to any
regulations made for the purposes of subclause (7) or unless the
Commission is hearing an appeal, the Commission is to be constituted of a
single member of the Commission.
(9) Subject to the
Fair Work Act 1994 and any regulations made for the purposes of
subclause (7), and without limiting section 178 of the Fair Work
Act 1994 , rules of the Commission may be made in connection with the
practice and procedure of the Commission in the performance or exercise of
functions or powers conferred by referral agreements.
(10) A determination,
order or other decision of the Commission on a referral under this
Schedule—
(a) is
binding on the parties to the referral agreements; and
(b) may
be enforced under the Fair Work Act 1994 in the same way as a
determination, order or other decision of the Commission or the Court to the
same effect.
(11) For the purposes
of subclause (10), the regulations may make provision for the entry of a
determination, order or other decision of the Commission as a determination,
order or other decision of the Commission or the Court (as the case requires)
under the Fair Work Act 1994 .
(12) The Commission
may, in acting under this Schedule, make any determination as to the scope or
operation of the relevant referral agreement, or as to the meaning of any
provision of the referral agreement, and any such determination will then have
effect according to its terms.
(13) The Commission
may, at any time after a matter or dispute has been referred to the Commission
under this Schedule, determine to take no action on the referral, or to
suspend or discontinue any action on the referral, if the Commission considers
or is satisfied that—
(a) the
matter or dispute should be determined in some other manner; or
(b)
proceedings that relate to the subject matter of the referral have been
commenced under the Fair Work Act 1994 , or before some other body or
person; or
(c)
there is some other reasonable cause that justifies a decision not to proceed,
or to suspend or discontinue any action under this section,
(and such a determination will have effect according to its terms).
(14) A party to a
matter in respect of which the Commission has made a determination under this
section may appeal against that determination in accordance with
section 207 of the Fair Work Act 1994 unless the referral agreement
provides that a determination will be final and conclusive and not subject to
appeal.
(15) If an appeal is
made, it will be taken to be part of the referral to the Commission under the
referral agreement.
(16) The functions and
powers conferred on the Commission by or under this Schedule are in addition
to, and do not derogate from, any other function or power of the Commission
under the Fair Work Act 1994 .
(17) A referral
agreement may be amended from time to time by agreement between the parties to
the referral agreement.
(18) Once a referral
has been made a party cannot withdraw from the referral agreement without the
agreement in writing of the other party or parties to the agreement.