South Australian Consolidated Acts South Australian Consolidated ActsSchedule 1—Transitional provisions
In this Schedule—
former Act means the Industrial Relations Act (S.A.) 1972 ;
former Commission means the Industrial Commission of South Australia
established under the former Act;
former Court means the Industrial Court of South Australia established under
the former Act.
5—References to former Court or Commission
A reference in an Act or other instrument to the former Court or the former
Commission must, where the context admits, be read as a reference to the Court
or the Commission under this Act.
6—Awards and other determinations of the former Commission
(1) An award in force
under the former Act immediately before the commencement of this Act continues
in force, subject to this Act, as if it were an award of the Commission under
this Act even though the award makes provisions for conditions of employment
that cannot be made by award under this Act.
(2) However—
(a) a
provision of an award that continues in force under subsection (1)
providing for preference to members of an association lapses on the
commencement of this Act; and
(b) a
right of entry and inspection conferred by an award that continues in force
under subsection (1) must be read down so as to be consistent with this
Act.
(3) All other
determinations of the former Commission in force immediately before the
commencement of this Act continue in force subject to this Act as if they were
determinations of the Commission under this Act.
(4) If a
recommendation was made before the commencement of this Act by the Commission
or a member of the Commission for the prevention or settlement of an
industrial dispute, the recommendation continues in effect as if it had been
made by the Commission or a member of the Commission under this Act.
(1) An industrial
agreement in force under the former Act immediately before the commencement of
this Act continues in force under this Act, unless earlier superseded by an
enterprise agreement, until 31 December 1996.
(2) However—
(a) a
provision of an industrial agreement that continues in force under
subsection (1) providing for preference to members of an association
lapses on the commencement of this Act; and
(b) a
right of entry and inspection conferred by an industrial agreement that
continues in force under subsection (1) must be read down so as to be
consistent with this Act.
(3) The
Commission—
(a) must
take reasonable steps to ensure that the parties to industrial agreements are
aware that the agreements will lapse on 31 December 1996; and
(b)
must, as far as practicable and appropriate, encourage the renegotiation of
the agreements as enterprise agreements.
(4) The provisions of
the former Act apply, with adaptations and modifications prescribed by
regulation, to an industrial agreement that continues in force under this
section.
7A—References to industrial agreements
(1) A reference to an
industrial agreement in an Act or statutory instrument extends to an
enterprise agreement under this Act.
(2) However, this
section does not apply to references to an industrial agreement in the
Long Service Leave Act 1987 or a statutory instrument under that Act.
8—Continuation of part-heard proceedings etc
(1) The jurisdiction
of the Court and the Commission under this Act extends to causes of action
that arose before the commencement of this Act.
(2) Any proceedings
that had been commenced before the former Court or the former Commission may
be continued and completed by the Court or the Commission under this Act.
(3) The Court or
Commission will apply the substantive law in force when the cause of action
arose, or if proceedings relate to the making or variation of an award, when
the application was made.
(4) However, if an
application for an award or variation of an award is made after 14 May 1994,
the application is to be determined in accordance with this Act.
(1) A certificate
under section 144 of the former Act (a "section 144 certificate") continues in
force (unless cancelled by the Registrar at the request of the person for whom
the certificate was issued) as a certificate of conscientious objection under
this Act and a reference in an award or agreement to a section 144 certificate
will be construed as a reference to a certificate of conscientious objection
under this Act.
(2) A certificate
under section 167 of the former Act continues in force as if it were a
certificate under section 230 of this Act.
(3) A licence in force
under section 88 of the former Act immediately before the commencement of this
Act continues in force, subject to this Act, as if it were a licence under
section 112 of this Act.
10—The President of the former Court
(1) The person holding
office as President of the former Court immediately before the commencement of
this Act—
(a)
becomes on the commencement of this Act the Senior Judge of the Court (and is
entitled while continuing in the office to the title of President of the
Court); and
(b)
continues, while holding that office, to have the same rank, status and
precedence as a Judge of the Supreme Court and to be entitled to be styled
"The Honourable Justice ...".
(2) The person to whom
subsection (1) applies is, while continuing to hold office as the Senior
Judge of the Court under this section, a member of the principal judiciary of
the Court.
(3) The provisions of
the former Act about salary, tenure and conditions of office relating to the
office of President of the former Court apply (with the necessary
modifications) to the office of Senior Judge of the Court for as long as the
person to whom subsection (1) applies continues to hold that office.
(4) Other provisions
of this Act that are inconsistent with this section must be read subject to
this section.
11—Deputy Presidents of the Court
(1) Each person who
held office as a Deputy President of the former Court immediately before the
commencement of this Act becomes, on that commencement, a judge of the Court.
(2) A person to whom
subsection (1) applies is, while continuing to hold office as a Judge of
the Court under this section, a member of the principal judiciary of the
Court.
(3) The provisions of
the former Act about salary, tenure and conditions of office relating to the
office of Deputy President of the former Court apply (with necessary
modifications) to the office of a judge to whom subsection (1) applies
for as long as the judge continues to hold office in accordance with those
provisions as a judge of the Court.
(4) Other provisions
of this Act that are inconsistent with this section must be read subject to
this section.
(1) Each person who
held office under the former Act as an industrial magistrate immediately
before the commencement of this Act becomes, on the commencement of this Act,
a magistrate under the Magistrates Act 1983 .
(2) A magistrate to
whom subsection (1) applies will, for so long as he or she continues to
hold office under the Magistrates Act 1983 , continues to be an
industrial magistrate and a member of the principal judiciary of the Court
unless he or she resigns the office of industrial magistrate.
(3) A person may
resign the office of industrial magistrate under this section without
resigning as a magistrate under the Magistrates Act 1983 .
(4) The accrued and
accruing rights in respect of employment of a magistrate to whom this section
applies are unaffected by this section.
(5) Other provisions
of this Act that are inconsistent with this section must be read subject to
this section.
13—Other officers of former Court and Commission
(1) A person who held
office as a commissioner under the former Act immediately before the
commencement of this Act becomes, on the commencement of this Act, unless the
Governor otherwise determines, a commissioner under this Act as if appointed
on the commencement of this Act as a commissioner under this Act.
(2) The commissioner
will be taken to have been appointed for a term of six years (which may be
renewed once for a further term of six years) but if the commissioner is over
60 at the time of the appointment or renewal, the term will end when the
commissioner reaches 65 years of age.
(3) The Registrar and
other staff of the former Court and the former Commission (other than those
specifically mentioned above) are, on the commencement of this Act,
transferred to corresponding positions on the staff of the Court or the
Commission (or both) under this Act.
(4) The salary and
accrued and accruing rights to annual leave, sick leave, family leave and long
service leave of persons who are transferred by this section to offices and
positions under this Act are not to be prejudiced by the transfer.
(5) However, a salary
difference that exists between a transferee and another person in the same
office or position, and in favour of the transferee, is not preserved beyond
the point when the salary of the other person reaches or exceeds the level of
the transferee's salary at the time of transfer.
A person who was an inspector under the former Act continues, subject to this
Act, as an inspector under this Act.
15—Members of Industrial Relations Advisory Council
A person who held office as a member of the Industrial Relations Advisory
Council immediately before the commencement of this Act continues in office,
subject to this Act, as a member of the Committee.
16—Registered associations
(1) An association
that was, immediately before the commencement of this Act, a
registered association under the former Act continues as a registered
association under this Act.
(2) No objection of a
kind that was prevented by section 133(1) of the former Act immediately before
the re-enactment of Part 9 of that Act pursuant to section 41 of the
Industrial Conciliation and Arbitration (Commonwealth Provisions) Amendment
Act 1991 (and then prevented by section 55 of that Amendment Act) may be
taken in relation to an association registered under this Act immediately
before the commencement of the Industrial and Employee Relations (Registered
Associations) Amendment Act 1997 . 1
Note—
1 Section 133(1) of the former Act provided as
follows:
133 (1) The legal
existence or registration of an association, the membership of any member or
any person claiming to be a member of an association, the validity of the
appointment or election of any officer of an association or of any action or
decision of such an officer, or the validity of any resolution passed or
decision made at any meeting of an association or of any committee of the
association, cannot be challenged, impugned or in any way affected, nor can
the compliance of any rule or rules of an association with the prescribed
conditions, or the observance or validity of any such rule or rules or the
operation of any award or order made under this Act, be challenged, impugned
or in any way affected by reason only that—
(a) the association is
also registered as an organization pursuant to the Commonwealth Act, or is a
branch or forms part of an organization so registered;
(b) members of the
association are also members of an organization registered under the
Commonwealth Act, and no register of members separate and distinct from the
register kept by the organization registered under the Commonwealth Act is
kept by the association, or no application for membership or membership fee
separate from the application or fee made and paid to the organization
registered under that Commonwealth Act has been made or paid to the
association by any member;
(c) the association
keeps and maintains no or insufficient books, accounts, records or rules which
are separate and distinct from any books, accounts, records or rules kept and
maintained by an organization registered under the Commonwealth Act, of which
some or all of its members are members;
(d) officers or the
association have been elected or appointed by or are also officers of an
organisation registered under the Commonwealth Act; or
(e) any matter
consequential upon or arising out of the matters referred to in
paragraphs (a) to (d).
17—Enterprise agreements and spouses and domestic partners
From the commencement of this clause, an enterprise agreement that provides
that sick leave is available to an employee if the leave becomes necessary
because of the sickness of a spouse, will be taken to provide that sick leave
is available to an employee if the leave becomes necessary because of the
sickness of a spouse or domestic partner (whether the agreement was entered
into before or after the commencement of this clause).
18—National industrial relations system
(1) In this
clause—
designated day means the day on which a Commonwealth law in the terms, or
substantially in the terms, set out in the tabled text under the
Fair Work (Commonwealth Powers) Act 2009 comes into operation.
(2) This Act will
operate in relation to—
(a) any
matter arising under this Act before the designated day (including a matter
that is not in the nature of a right or that is procedural in nature); and
(b) any
matter arising, directly or indirectly, out of such a matter,
insofar as the matter is not dealt with under the Fair Work Act 2009 of
the Commonwealth on or after the designated day.
(3) Nothing in this
clause is intended to limit or affect the operation of this Act—
(a) in
relation to industrial or other matters that are not affected by a law of the
Commonwealth relating to matters referred to the Parliament of the
Commonwealth under the Fair Work (Commonwealth Powers) Act 2009 ; or
(b) in
any other respect (except to the extent that this Act cannot apply by virtue
of a law of the Commonwealth).