FAIR WORK ACT 1994 - SECT 10
FAIR WORK ACT 1994 - SECT 10
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.
(5)
Subsection (4)(a)(iv) 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.