South Australian Consolidated Acts South Australian Consolidated Acts (1) In this Act,
unless the contrary intention appears—
"adult" means a person of or above 21 years of age;
"apprentice" means an apprentice/trainee as defined in the Training and Skills
Development Act 2008 ;
"association" means—
(a) an
association, society or body formed to represent, protect or further the
interests of employers or employees; or
(b) an
organisation, or a branch of an organisation, registered under the
Commonwealth Act;
"award" means an order of the Commission regulating remuneration or other
industrial matters;
"child" means a person who has not attained the age of 18 years;
"Commission" means the Industrial Relations Commission of South Australia;
"Committee" means the Industrial Relations Advisory Committee ;
"Commonwealth Act" means the Workplace Relations Act 1996 (Cwth);
"Commonwealth Commission" means the Australian Industrial Relations Commission
(or an industrial authority that takes the place of the Commission under
Commonwealth law);
"contract of employment" means—
(a) a
contract recognised at common law as a contract of employment under which a
person is employed for remuneration in an industry; or
(b) a
contract under which a person (the "employer") engages
another (the "employee") to drive a vehicle that is not registered in the
employee's name to provide a public passenger service (even though the
contract would not be recognised at common law as a contract of employment);
or
Exception—
The contract is not a contract of employment if the vehicle is a taxi and the
contract would not be recognised at common law as a contract of employment.
(c) a
contract under which a person (the "employer") engages
another (the "employee") to carry out personally the work of cleaning premises
(even though the contract would not be recognised at common law as a
contract of employment); or
(d) a
contract under which a person (the "employer") engages
another (the "employee") to carry out work as an outworker (even though the
contract would not be recognised at common law as a contract of employment);
"Court" means the Industrial Relations Court of South Australia;
"decision" includes a refusal or failure to make a decision;
"demarcation dispute" includes—
(a) a
dispute within an association or between associations about the rights, status
or functions of members of the association or associations in relation to the
employment of those members; or
(b) a
dispute between employers and employees, or between members of different
associations, about the demarcation of functions of employees or classes of
employees; or
(c) a
dispute about the representation under this Act of the industrial interests of
employees by an association of employees;
"Deputy President" means a Deputy President of the Commission;
"determination" means an award, order, declaration, approval or decision;
"domestic partner" means a person who is a domestic partner within the meaning
of the Family Relationships Act 1975 , whether declared as such under
that Act or not;
"employee" means a person employed for remuneration under a
contract of employment and includes a public employee;
"Employee Ombudsman" means the Employee Ombudsman appointed under this
Act—see section 58;
"employer" means—
(a) for
public employees—the body or person (not being a Minister) declared by
regulation to be the employer of the employees;
(b) for
other employees—a person who employs the employees for remuneration in
an industry under a contract of employment;
"enterprise agreement" means an agreement under Chapter 3 Part 2 of this Act
between 1 or more employers and a group of employees regulating remuneration
or other industrial matters (and includes a provisional enterprise agreement);
"enterprise agreement matter" means—
(a) a
matter arising under Chapter 3, Part 2 (Regulation of Industrial Matters by
Enterprise Agreements); or
(b) a
matter related to an industrial dispute between the parties to an
enterprise agreement but not a matter under Chapter 3, Part 6 (Unfair
dismissal);
"Equal Remuneration Convention" means the Convention Concerning Equal
Remuneration for Men and Women Workers for Work of Equal Value set out in
Schedule 6;
"evidentiary material" means a document, object or substance of evidentiary
value in proceedings before the Court or the Commission and includes a
document, object or substance that should, in the opinion of the Court or the
Commission, be produced for the purpose of enabling the Court or the
Commission to determine whether or not it has evidentiary value;
"examinable arrangements" means—
(a)
contractual arrangements under which work is carried out by outworkers; or
(b)
other contractual arrangements classified by regulation as examinable
arrangements;
"family"—the following are to be regarded as members of a person's
family—
(a) a
spouse or domestic partner;
(b) a
child;
(c) a
parent;
(d) any
other member of the person's household;
(e) any
other person who is dependent on the person's care;
"Full Commission"—see section 39;
"Full Court"—see section 21;
"group of employees"—see subsection (2);
(indexed) —see subsection (4);
"industrial action" means—
(a) a
work practice, or a way of performing work, adopted in connection with an
industrial dispute, that restricts, limits or delays the performance of the
work; or
(b) a
ban, limitation, or restriction affecting the performance of work, or the
offering or acceptance of work; or
(c) a
failure or refusal in connection with an industrial dispute to attend for
work, or to perform work,
but does not include action taken by an employer with the agreement of the
employees, or action taken by employees with the agreement of the employer;
"industrial authority" means—
(a) a
State industrial authority; or
(b) a
commission, court, board, tribunal, or body having authority under the law of
the Commonwealth or another State to exercise powers of conciliation or
arbitration in industrial matters; or
(c) a
body declared by regulation to be an industrial authority for the purposes of
this definition;
"industrial dispute" means a dispute, or a threatened, impending or probable
dispute, about an industrial matter (and an industrial dispute does not come
to an end only because the parties, or some of them, cease to be in the
relationship of employer and employee);
"industrial instrument" means—
(a) an
award or enterprise agreement under this Act; or
(b) an
award or certified agreement (but not an Australian workplace agreement) under
the Commonwealth Act;
"industrial matter" means a matter affecting or relating to the rights,
privileges or duties of an employer or employers (including a prospective
employer or prospective employers) or an employee or employees (including a
prospective employee or prospective employees), or the work to be done in
employment, including, for example—
(a) the
wages, allowances or remuneration of employees or prospective employees in an
industry, or the piece-work, contract or other prices paid or to be paid for
the employment, including any loading or amount that may be included in wages,
allowances, remuneration or prices as compensation for lost time and the
wages, allowances or remuneration to be paid for work done during overtime or
on holidays, or for other special work, and also the question whether
piece-work will be allowed in an industry;
(b) the
hours of employment in an industry, including the lengths of time to be
worked, and the quantum of work or service to be done, to entitle employees to
any given wages, allowances, remuneration or prices, and what times are to be
regarded as overtime;
(c) the
age, qualification or status of employees, and the manner, terms and
conditions of employment;
(d) the
relationship between an employer and an apprentice (and any matter relating to
employment arising between an employer and an apprentice);
(e) the
employment of juniors and apprentices in an industry (including the number or
proportion that may be employed);
(f) the
employment of any person, or of any class of persons, in addition to those
referred to above, in an industry;
(g) the
refusal or neglect, without reasonable cause or excuse, of any person bound by
an award, order or enterprise agreement to offer or accept employment, or to
continue to be employed on the terms of the award, order or agreement;
(h) any
established or allegedly established custom or usage of an industry, either
generally or in a particular locality;
(i)
the monetary value of allowances granted to or enjoyed by
employees;
(j) the
dismissal of an employee by an employer;
(k) a
demarcation dispute;
(ka) any
matter affecting or relating to the performance of work by outworkers,
including—
(i)
the giving out of work which is to be performed (or is
reasonably likely to be performed), directly or indirectly, by an outworker;
(ii)
the regulation of any person who gives out work which is
to be performed (or is reasonably likely to be performed), directly or
indirectly, by an outworker;
(iii)
the creation of 1 or more contracts (including a series
of contracts) dealing with the performance of work by outworkers;
(iv)
the terms or conditions under which work is performed by
outworkers;
(v)
the protection of outworkers in any other respect;
(l) the
performance of work nude or partially nude, or in transparent clothing;
(m) a
matter classified as an industrial matter by regulation;
(n) all
questions of what is right and fair in relation to an industrial matter having
regard to the interests of the persons immediately concerned and of society as
a whole;
"Industrial Registrar" or "Registrar" means the Industrial Registrar and
includes—
(a) a
Deputy Industrial Registrar; or
(b) an
officer appointed under the Commonwealth Act who may, by arrangement between
the Minister and the Minister responsible for the administration of the
Commonwealth Act, exercise powers of the Industrial Registrar under this Act;
"industry" means a trade, business or occupation in which employees are
employed;
"inspector"—see section 64;
"junior" means an employee under the age of 21 years (but not an apprentice);
"legal practitioner" means a person admitted to practise the profession of the
law in this State;
"order" includes direction;
"organisation" means an organisation registered under the Commonwealth Act;
"outworker"—see section 5;
"peak entity" means—
(a) the
Minister; and
(b) the
United Trades and Labor Council; and
(c) the
South Australian Employers' Chamber of Commerce and Industry Incorporated; and
(d) the
Employee Ombudsman; and
(e) any
other body brought within the ambit of this definition by the regulations;
"place" includes—
(a) a
building or structure; and
(b) a
vehicle; and
(c) a
ship or vessel;
"President" means the President of the Commission;
"Presidential Member" means the President or a Deputy President of the
Commission;
"public employee" means—
(a) a
public sector employee, within the meaning of the Public Sector Management
Act 1995 , employed under, or subject to, that Act; or
(b) any
other person employed for salary or wages in the service of the State;
"registered agent" means a person who is entitled to represent a party in
proceedings before the Court or the Commission by registration as an agent
under this Act (See Chapter 5, Part 1, Division 2);
"registered association" means an association (which may include an
organisation or branch) registered under Chapter 4 (Associations);
"remuneration" means—
(a)
wages or salary; or
(b)
payment to or for the benefit of an employee in the nature of piece-work
rates, penalty rates, shift premiums, overtime or special work rates; or
(c)
allowances;
"rules" means rules of the Court or the Commission (as the context requires);
"single business" means—
(a) a
business carried on by a single employer; or
(b) a
business carried on by two or more employers as a joint venture or common
enterprise; or
(c) a
single project or undertaking; or
(d)
activities carried on by—
(i)
the State; or
(ii)
a body, association, office or other entity established
for a public purpose by or under a law of the State; or
(iii)
another body in which the State has a controlling
interest;
"spouse"—a person is the spouse of another if they are legally married;
"State" includes a Territory of the Commonwealth;
"taxi" means a vehicle—
(a)
licensed or exempted from the requirement to be licensed under Part 6 (Taxis)
of the Passenger Transport Act 1994 ; and
(b) with
seating accommodation for not more than 12 passengers; and
(c) used
predominantly for the transport of passengers rather than the transport of
goods or other freight;
"Termination of Employment Convention" means the Convention concerning
Termination of Employment at the Initiative of the Employer set out in
Schedule 7;
"workplace" means any place where an employee works and includes any place
where such a person goes while at work but does not include any premises of an
employer used for habitation by the employer and his or her household other
than any part of such premises where an outworker works.
(3) A
group of employees cannot be defined by reference to membership of a
particular association.
(4) If a monetary sum
is followed by the word (indexed) , the amount is to be adjusted on 1 January
of each year by multiplying the stated amount by a proportion obtained by
dividing State average full-time adult total earnings (seasonally adjusted) as
at 30 June in the previous year by State average full-time adult total
earnings (seasonally adjusted) as at 30 June in the year in which the stated
amount was fixed by Parliament.
(5) The Registrar
must, as soon as is reasonably practicable after the commencement of each
year, determine the new amounts that are to apply (according to his or her
calculations) under this Act on account of the operation of
subsection (4) and cause those new amounts to be published on an Internet
site.