SA Set to Expand Employment Tribunal

From 1 July 2017 the jurisdiction of the SA Employment Tribunal (SAET) will expand under the Statutes Amendment (South Australian Employment Tribunal) Bill 2016 which was assented to on the 8 December 2016. It is another step in the Government’s plan to make the body a ‘one-stop shop’ for employment related disputes.

Jurisdictional Changes

The Bill abolishes the Industrial Relations Court and the Industrial Relations Commission and confers their jurisdiction upon the SA Employment Tribunal. For constitutional reasons the functions previously undertaken by the Industrial Relations Court will be dealt with by a part of the SA Employment Tribunal acting as a Tribunal in Court Session. This will be referred to as the South Australian Employment Court (SAEC), and will now be the division to hear monetary claims arising under Awards, Enterprise Agreements and significantly, employment contracts.

Breach of common law contract claims ordinarily brought in the District or Supreme Courts (for example, failure to pay reasonable notice) will now be able to be brought to the SAEC. SAEC is specifically given jurisdiction to hear and determine any ‘question, action or claim’ that is founded on or arises out of a contract of employment, even if the contract of employment has been terminated. This extends to claims for general damages resulting from breach of contract, including circumstances where an employee has been dismissed. The Bill also specifically allows SAET to deal with a claim to recover a liquidated sum or debt that arises from a contract of employment.

The SAEC division will also have jurisdiction for contracts of employment and the grant of injunctions or orders for specific performance.

In addition to this the Tribunal has been given jurisdiction to deal with employment related disputes arising under the Equal Opportunities Act 1984 (SA) previously determined by the Equal Opportunity Tribunal. A range of other disciplinary tribunals have also been affected with SAET gaining jurisdictions formerly held by the Teachers Appeal Board, the Police Review Tribunal and the Public Sector Grievance Review Commission.

The Tribunal has also been given an expanded criminal jurisdiction to deal with industrial offences, such as those arising under the Work Health and Safety Act 2012 (SA) or the Return to Work Act 2014 (SA). Summary or minor indictable offences will be heard by magistrates of the Tribunal sitting as SEAC.

The Bill also amends the Dust Diseases Act 2005 (SA) to allow SAET as well as the District Court to hear and determine proceedings in relation to a dust disease action within the SEAC division of the Tribunal.

Composition of the Tribunal

The Bill also makes some changes to the composition of SAET. The bill proposes that the President will be a judge of the District Court. The current President, appointed on the 4 March 2016 is his Honour Peter McCusker. The Bill provides that at a minimum there will be at least two Deputy Presidents, who may be either District Court judges or magistrates. There are currently seven Deputy Presidents, include Judge BP Gilchrist, Judge PD Hannon, Judge LJ Farrell, M Calligeros, SP Dolphin, M Ardlie and SM Lieschke. The Tribunal will also have Magistrates who are designated members, Commissioners (formerly Conciliation Officers) and Supplementary Panel Members.

Supplementary Panel members will continue to bring a range of outside expertise to matters when the President of SAET considers that they will assist SAET to deal with disputes.

Procedural Changes and Appeals

The Bill makes a number of changes to the procedural rules in the current Act and makes further provision for reviews and appeals to reflect the expansion of the Tribunal’s jurisdiction.

An appeal from a decision of the Tribunal under the Return to Work Act 2014 (SA) (other than a criminal appeal) will be limited to a question of law. There is also internal review of decisions available for decisions of the Tribunal made without a presidential member.

An appeal against a decision of the Tribunal will usually be heard by a Full Bench of the SA Employment Tribunal, with a final appeal on questions of law still to be heard by the Full Court of the Supreme Court.