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Employment Law in South Australia

Written by Michelle Makela

Michelle Makela is one of our Legal Practice Directors and the National Practice Manager. She holds a Bachelor of Laws, a Bachelor of Science (Psychology) and a Master’s in Criminology. Michelle has had a varied career, working in commercial litigation, criminal law, family law and estate planning. Michelle joined Go To Court Lawyers in 2011. She now supervises a team of over 80 solicitors across Australia.

If you are employed in South Australia, you are covered by either the national workplace relations system or the South Australian workplace relations system. If you work for the police, for the State or local government, as a public servant, for a local council, or for a Minister or judicial officer in the State, then you are covered by the South Australian system.

Legislation for Employment Law

The main legislation applying to employees who are covered by the South Australian industrial relations system is the Fair Work Act 1994 (SA), the Local Government Act 1999 and the Public Sector Act 2009. If you are any other kind of employee, you are a national system employee and covered by the Commonwealth Fair Work Act 2009.

The Fair Work Act 1994 (SA) is the main piece of legislation that governs South Australia’s employment law.

The national workplace relations system

Most employees in South Australia will be covered by the Fair Work Act 2009. It is managed by two bodies; the Fair Work Commission and the Fair Work Ombudsman. The Fair Work Act 2009 (Cth) contains a set of ten minimum National Employment Standards for national system employees, which replace the five minimum standards that applied under the Australian Fair Pay and Conditions Standard. These include, for example, minimum annual leave requirements, maximum weekly working hours, redundancy pay and personal leave.

National system employees are also entitled to other protections relating to workplace rights such as taking part in protected industrial action and being protected from discrimination based on their age, race, or sexual preference amongst others. These protections generally prevent an employer from taking action against you for exercising a workplace right. Other provisions of the Fair Work Act 2009 (Cth) relate to matters such as the making of modern awards (see below), setting minimum wage rates, and unfair dismissal.

Modern awards

National system employees may also be covered by the terms of a modern award. Modern awards are made by the Fair Work Commission and set minimum terms and conditions for employees in particular industries. These terms and conditions are generally framed around the ten minimum National Employment Standards mentioned above. For example, a modern award can include information relating to taking or cashing out annual leave. The Fair Work Commission can only make modern awards that are fair and reasonable, taking into account factors such as relative living standards. However, you will not be covered by the terms of a modern award if your annual income is greater than a “high income threshold”. Currently, the threshold is $133,000 per annum. A comprehensive list of modern awards can be found here.

South Australian laws that apply to national system employees

Some South Australian laws still apply to national system employees; these are known as preserved laws and are listed in the Fair Work Act 2009 (Cth). Preserved laws include workers compensation and workplace health and safety laws, and the Equal Opportunity Act 1984. All employees in South Australia also receive their long service leave entitlements under South Australian law; specifically, the Long Service Leave Act 1987 and in certain circumstances the Construction Industry Long Service Leave Act 1987.

The State workplace relations system

The Fair Work Act 1994 (SA) is the main piece of legislation that governs South Australia’s industrial relations system. It establishes the Industrial Relations Court, the Industrial Relations Advisory Committee and the Industrial Relations Commission. The Industrial Relations Court is given jurisdiction to hear claims for money owed to an employee by an employer (including wages and superannuation), to hear and decide on matters of law and jurisdiction referred to it by the Commission, and to interpret enterprise agreements and awards.

The Industrial Relations Commission has jurisdiction in relation to unfair dismissal applications, to approve of the enterprise agreements, which apply between the employer and employees of a particular enterprise, to make awards in relation to particular industries, and to set out minimum pay and conditions of employment.

If both an award and an enterprise agreement applies to you as an employee, the enterprise agreement generally prevails unless the provisions of the enterprise agreement are less favourable than the award. Certain aspects of the national Fair Work Act 2009 (Cth) also apply to State employees; for example, the unlawful termination and parental leave provisions.

Public sector employees

Enterprise agreements have been made which apply to public sector employees. One of the largest is the South Australian Wages Parity Agreement. There are also enterprise agreements for specific areas of the public sector, such as teachers and ambulance officers. The Public Sector Act 2009 also regulates public sector employees by providing for matters such as leave rights and the public sector Code of Ethics.

Local government employees

Local government employees are covered by the Local Government Employees Award. The Local Government Act 1999 also provides for the creation of a code of conduct to apply to all local government employees.

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