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South Australian Employment & Industrial Relations Law

Since 1 January 2010, all private sector employers and employees in South Australia operate under the national industrial relations system. The Fair Work Act 2009 (Cth) now covers almost the whole of the private sector, including the non-government community services sector, private schools and universities.

The State public sector, including almost all Government Business Enterprises and local councils, are still under the State System. The key legislation for this is the Fair Work Act 1994 (SA).

State laws on matters such as occupational health and safety, workers compensation, training and skills development, shop trading hours, long service leave, outworkers and child employment continue to apply.

Awards

The South Australian Employment Tribunal has the power to make an award of general application on matters such as the minimum rate of pay, and this applies to all employees covered by the Fair Work Act 1994 (SA).

Enterprise Agreements

Like the Fair Work Act 2009 (Cth), the Fair Work Act 1994 (SA) encourages the use of enterprise agreements to set out employment conditions. An enterprise agreement must be approved by the South Australian Employment Tribunal. If there is an inconsistency between an award and an enterprise agreement, then the agreement prevails, but only to the extent of the inconsistency.

The Fair Work Act 1994 (SA) requires that a majority of employees have given their informed and genuine consent to an enterprise agreement, that the agreement is in their best interests and is not, as a package, inferior to any existing award.

State Public Sector Workers

South Australian Public Sector Workers employment rights and responsibilities are largely covered by the Public Sector Act 2009 (SA), Public Sector Regulations 2010 (SA), Public Sector (Honesty and Accountability) Act 1995 (SA) and relevant Awards and Enterprise agreements.

Public Sector Act

Amongst other things the Public Sector Act 2009 (SA) sets out entitlements such as notice on termination (14 days notice), probation periods (12 months but it can be less), as well as leave rights and other entitlements and responsibilities.

The Act establishes the Commissioner for Public Sector Employment. The Commissioner makes policy standards (Determinations, Standards, and Guidelines) which set out further rights and responsibilities. These are available on the Office of the Public Sector website.

The Public Sector Act 2009 (SA) provides that there be a Code of Conduct for the Public Sector. This Code is called the Code of Ethics for the South Australian Public Sector, all public sector employees must comply with the Code.

Unfair Dismissal

While the Public Sector Act 2009 (SA) has its own disciplinary process for issues of misconduct and poor performance, Unfair Dismissal claims for State Public Servants are covered by the Fair Work Act 1994 (SA). There is 21 days to make an unfair dismissal application under that process. See the South Australian Employment Tribunal website for information on making unfair dismissal claims.

For the Redeployment, Retraining and Redundancy Determination of the Commissioner for Public Sector Workers see the Office of the Public Sector's website.

Responsibilities and rights under other State legislation

Additional responsibilities and rights for public sector workers are contained under separate Acts relevant to the organisation or agency, for example the Health Care Act 2008 (SA).

Public Sector Enterprise Agreements

One of the main enterprise agreements covering the public service is the South Australian Wages Parity Agreement and is available on the Office for the Public Sector website.

Other enterprise agreements apply for specific sectors of the Public Service , for example, those working in Schools and ambulance officers. All awards and enterprise agreements under the state system available from the South Australian Employment Tribunal website.

Police

SA Police are covered by the Police Act 1998 (SA) and the Police Complaints and Discipline Act 2016 (SA).

See further: Complaints against police

Professional Codes of Conduct

Lawyers and Health Professionals also have codes of conduct linked to their profession. Those are covered elsewhere in the handbook in the chapter on Complaints.

Further information is available at the website of the Office of the Public Sector: http://publicsector.sa.gov.au/

Local Government Workers

Local government workers rights and responsibilities are covered but the Local Government Act 1999 (SA), the Local Government Employees Award, and enterprise agreements particular to the council. Enterprise agreements are available on the South Australian Employment Tribunal's website.

Local Government employees are also covered by the Unfair Dismissal protections in the Fair Work Act 1994 (SA) see the South Australian Employment Tribunal website for information on making unfair dismissal claims.

Discrimination in the workplace

Public Sector and Local Government workers can raise discrimination claims just as equally as other workers.

The relevant bodies are the Australian Human Rights Commission; and the Equal Opportunity Commission of South Australia.

One of the most common workplace discrimination complaints is sexual harassment.

There is a 12 month time limit on making complaints under these laws. Complaints will first go through a process of conciliation and, if they do not resolve, either to the Federal Court (AHRC) or the South Australian Employment Tribunal (for EOC matters).

See the Chapter on Discrimination in the Law Handbook for more information.

Unlawful termination protections for State system employees

While most of the Fair Work Act 2009 (Cth) only applies to national system employees, there are some protections which apply to State system employees. Section 772 of the Fair Work Act 2009 (Cth) makes some terminations (dismissals) unlawful.

Unlawful termination is when you are terminated for a prohibited factor, which includes:

  • Temporary absence from work due to illness or injury;
  • Trade union membership or activities;
  • Non-membership of a trade union;
  • Being a representative of employees;
  • Absence from work during maternity leave or other parental leave;
  • Complaining to SafeWork SA or the Fair Work Commission about your employer; or
  • Discrimination (Race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin).

The time limit for making an unlawful termination application in the Fair Work Commission is 21 days from the date of dismissal.

See the Fair Work Commission’s website for more information.

Services for employees in South Australia

    South Australian Employment & Industrial Relations Law  :  Last Revised: Fri Jul 24th 2015
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.