EXPANDED JURISDICTION OF THE SA EMPLOYMENT TRIBUNAL

Transcription

1 1 EXPANDED JURISDICTION OF THE SA EMPLOYMENT TRIBUNAL The South Australian Employment Tribunal (SAET or the Tribunal) was created by the South Australian Employment Tribunal Act 2014 (SAET Act) and commenced operation on 1 July At that time, SAET only had jurisdiction to deal with applications for review brought under s 97 of the Return to Work Act 2014 (RTW Act). In other words, SAET s jurisdiction was limited to workers compensation matters. For a period of time SAET operated in tandem with the now defunct Workers Compensation Tribunal (WCT). SAET s jurisdiction expanded significantly on 1 July The SA Industrial Relations Court, SA Industrial Relations Commission and Equal Opportunity Tribunal were all abolished and their functions were taken over by SAET. The expansion has led to a wholesale revision of the SAET Act and SAET Rules. In addition, to accommodate the expansion, the Statutes Revision (SAET) Act 2016 amended some 17 Acts. SAET is now a much more complex and diverse body. The SAET Rules 2017 (Rules) make provision for the new jurisdictions. This paper is designed to outline and provide an introduction to some of SAET s new jurisdictions. General While SAET, like WCT, is described as a tribunal, s 5(2) of the SAET Act provides that SAET has a part that is the Tribunal in Court Session which by force of the Act, is a court of record. There is no equivalent provision to s 5(2) in the now repealed Workers Rehabilitation and Compensation Act By virtue of s 5(3) of the SAET Act, the Tribunal in Court Session is known as the South Australian Employment Court (SAEC or the Court). Section 5(4) of the SAET Act provides the Tribunal also has a part that is the Tribunal acting as an industrial relations commission. The Supreme Court of SA had held that WCT was a court within the meaning of Chapter 3 of the Commonwealth Constitution. The SAET Act expressly confers judicial power upon SAEC, makes SAEC a court of record and also gives SAEC a more extensive range of powers than those that were exercised by WCT. It is important to understand the distinction between SAET and SAEC given that quite different types of jurisdiction are exercised by the Tribunal in a general sense on the one hand, and the Court as one part of the Tribunal on the other. Hopefully the practical consequences of the distinction will become apparent in this paper. Under s 6 of the SAET Act, SAET has the jurisdiction conferred upon it by SAET Act and by any other Act. Acts conferring jurisdiction upon SAET are referred to in the SAET Act as relevant Acts.

2 2 Criminal jurisdiction under the SAET Act Under s 6A of the SAET Act, SAEC has criminal jurisdiction to try a charge for a summary offence or a minor indictable offence (if such an offence is to be dealt with as a summary offence) under s 230(3)(a) of the Work Health and Safety Act 2012 (WHS Act). SAEC does not have jurisdiction to deal with major indictable offences. Rule 29(1) of the Rules provides that the Magistrates Court Rules 1992 (Criminal Jurisdiction) (MCR) apply, to the exclusion of the Rules, to the Court s jurisdiction over industrial offences. Rule 29(2) provides the Tribunal may modify the application of the MCR if appropriate. The Magistrates Court previously dealt with prosecutions under the Work Health and Safety Act 2012 (WHS Act). Section 230(3a) of the WHS Act confers jurisdiction upon SAEC to try a charge for a summary offence or a minor indictable offence under the WHS Act. Because s 6A(4) of the SAET Act provides that SAEC is to deal with a minor indictable offence in the same way that the Magistrates Court does, if a person charged with a minor indictable offence elects for trial in a superior court as provided for by the Summary Offences Act 1921 (SO Act), SAEC must commit the defendant for trial by jury in the District Court under s 6A(5). Section 203(8) of the WHS Act provides that a minor indictable offence that is to be dealt with as a summary offence under the SO Act is to be dealt with by a Magistrate who is a member of SAEC. There are two notable changes to how prosecutions proceed in SAEC compared to how they proceeded in the Magistrates Court. Any prosecution where the penalty is greater than $300,000 must be referred to the District Court for sentencing. Under the former model, a Magistrate determined whether a charge was made out and also determined the sentence irrespective of the size of the financial penalty. Any prosecution of a workplace death must now be referred to a District Court Judge for sentencing as the maximum penalty for such an offence exceeds $300,000. Under s 67(1) of the SAET Act an appeal against a decision of SAET is to a Full Bench of SAEC. Section 67(3) of the SAET Act provides any appeal under s 67 will be by way of rehearing. In addition to hearing prosecutions under the WHS Act, SAEC hears prosecutions under the RTW Act. Such prosecutions previously were usually heard in the Magistrates Court. Additional provisions of the SAET Act relating to jurisdiction Section 6B(1) of the SAET Act provides that a provision of an Act that enables an application to be made to SAET will be taken to confer jurisdiction on SAET to deal with the matter concerned.

3 3 Section 6B(2) of the SAET Act advises that Divisions 6 and 7 of Part 2 of the SAET Act provide for additional jurisdiction, powers and other matters relating to the conferral of jurisdiction on the Tribunal or the Tribunal in Court Session. Division 6 of Part 2 of the SAET Act comprises ss 26A, 26B and 26C. Section 26A provides SAET with power to make declaratory judgments. It provides the Court can make binding declarations of right whether or not any consequential relief is or could be claimed. This makes an important change to what was a well-established principle under both the RTW Act and its predecessor. It used to be necessary for an applicant worker to show that there was an amount or award of compensation in dispute before the Tribunal s jurisdiction could be invoked. It is now possible for a worker to seek a declaration that an injury is compensable in the absence of a dispute about an amount of compensation being sought under the RTW Act. The discussion of the jurisdiction of WCT by the Full Supreme Court in Davey v WorkCover Corporation of SA [2011] SASCFC 66 may no longer apply without qualification to the jurisdiction of SAEC. In two recent decisions of the Court, declarations were made. In Preedy v Return to Work SA [2017] SAET 118 and Graham v Return to Work SA [2017] SAET 124, two different judges of SAEC each made a declaration sought by a worker that he is a seriously injured worker within the meaning of s 21(2) of the RTW Act. It was held to be appropriate to make a declaration because in each case, there was a judgment of the Tribunal which had awarded the worker whole person impairment of 30% or more under s 58 of the RTW Act. The compensating authority had declined to treat the workers as seriously injured and argued that it was entitled to do so until all avenues of appeal were exhausted. As a consequence, the workers were not receiving weekly payments despite having an entitlement to them. Caution is advised when seeking a declaratory judgment. A declaration should not be sought simply because it is now possible for SAEC to grant declaratory relief. As noted in Lunn on Civil Procedure (at r ), a court will not usually grant an injunction where there is no utility in doing so and a declaration should not be made merely to give comfort to a party. In Graham at [31] Hannon DPJ made similar observations: Such a declaration should only be made where there is a real question before the Court which requires a determination of the nature of existing legal rights and obligations in controversy. There must be some utility in doing so. These conditions are clearly satisfied in this matter. The jurisdiction is unlimited except by the Court s own discretion which will usually be exercised by having regard to equitable principles. Civil jurisdiction under the SAET Act Actions for damages in respect of a work injury Division 7 of Part 2 of the SAET Act confers exclusive jurisdiction on SAEC to hear and determine an action for damages under Part 5 of the RTW Act. It is important to note that along with the reintroduction of an ability to sue a negligent employer in damages there is an ability to seek contribution from joint tortfeasors under s 26D(2) of the SAET Act.

4 4 Section 26D(3) enables a claim in respect of some other matter to be included in the proceeding even though that claim does not come within the ambit of s 71(1) of the RTW Act. For example, if there was disagreement about whether a plaintiff had sufficient whole person impairment to be able to bring an action at common law for damages, and that issue had not previously been decided, it may be sensible to deal with that issue at the same time as the common law claim is heard. The same would apply if there was an issue about what the appropriate rate of average weekly earnings under s 5 of the RTW Act. That issue would impact on the quantum of an assessment of damages. Actions for the recovery of compensation The reference to the District Court in s 66 of the RTW Act is taken by s 26E of the SAET Act to be a reference to SAET and the Tribunal s jurisdiction over to such matters is assigned to SAEC. Rules 35 and 36 of the SAET Rules apply to actions for damages and actions for recovery of compensation respectively under the RTW Act. Rules 35 and 36 provide that unless the SAET Rules or a Practice Direction provide otherwise, the practice of the District Court, and therefore the District Court Rules Civil (DCR) apply to such actions. District Court forms with minor modifications are to be used for damages actions and recovery actions. The only modifications needed are to identify the matter as being in SAEC rather than in the District Court and to use the words Damages Claim, Return to Work Act 2014 or Recovery Claim, Return to Work Act 2014, whichever is appropriate, underneath the action number. Dust Diseases Act matters In the case of matters under the Dust Diseases Act 2005 (DD Act), r 37(1) provides that unless the Rules or a Practice Direction provides otherwise, the general practice of the District Court in its civil jurisdiction applies to such matters. Rule 37(2) provides that any documents in such matters must be filed in SAEC and must contain the words Dust Diseases Act Apart from that change, District Court forms and formats can be used for DD Act matters. These rules were made to simplify the transition of matters from the District Court to SAEC and to minimise the extent of any change required to forms and precedents. Under r 7 of the SAET Rules, the DCR also apply in the case of any matter not provided for under the SAET Rules or a relevant Act. The first version of the SAET Rules provided that the Supreme Court Rules applied in such cases. Fair Work Act jurisdiction The Tribunal has jurisdiction to deal with matters arising from the Fair Work Act 1994 (FW Act). Section 7 of the FW Act confers a broad range of functions upon SAET. These include adjudicating on employment disputes, approving enterprise agreements, making awards, settling and resolving industrial disputes, interpreting awards and industrial agreements, deciding monetary claims under industrial awards or instruments and hearing and determining questions arising under contracts of employment.

5 5 The Tribunal has power to make declaratory judgments where provided for by the FW Act and may also grant injunctions. An application for an interim injunction to prevent the termination of a contract of employment was filed and heard in the Tribunal last week. In the case of a monetary claim under ss 9 and 10 of the FW Act, the Tribunal will serve s 9 monetary claim proceedings but the applicant is to serve a s 10 monetary claim arising from a contract of employment claim. In both cases parties must attend compulsory conciliation unless the party lives more than 50 kilometres from the Adelaide GPO. Part 19 of the SAET Rules concerns FW Act matters. Notification of determinations by the Tribunal in award proceedings and notices concerning the registration of associations are posted on the Tribunal web site and no longer appear in a daily newspaper, so those with an interest in such matters should check the Tribunal website on a regular basis. Claims for breach of a common law contract of employment formerly brought in the District or Supreme Courts may now be brought in SAET and heard by the Court. These include claims where it is alleged the plaintiff received inadequate notice of termination. Section 10 of the FW Act gives the Court jurisdiction to hear and determine any question, action or claim founded on or arising out of a contract of employment, even if the contract has been terminated. The Court also has jurisdiction over a claim to recover a liquidated sum or debt that arises from a contract of employment. Equal Opportunity Act matters In the case of the EO Act, a complaint to the EO Commission is still heard by the Commissioner for Equal Opportunity. If the Commissioner is of the view a complaint cannot be resolved by conciliation or comes within another of the categories contained in s 95B of the EO Act, the Commissioner must refer the complaint to SAET. Rules 80 to 83 of the SAET Rules concern EO Act matters. The Tribunal also deals with applications for the grant of an exemption under the EO Act. Jurisdictions with supplementary panels Some of SAET s new jurisdictions contemplate the use of supplementary panels. In these instances, a Presidential member of the Tribunal may sit with one or two supplementary panel members when hearing and deciding a matter. Wherever a supplementary panel is used, the matter cannot be heard by the Tribunal in Court Session. For this reason, matters of this type are not referred to the Court for hearing. Supplementary panels may be used with some types of matter under the Education Act 1972, Equal Opportunity Act 1984 (EO Act), Fire and Emergency Services Act 2005, Public Sector Act 2009 and Technical and Further Education Act Rule 68 of the SAET Rules provides that in matters where supplementary panel members may be used, the Tribunal will sit with such members if requested to do so by a party unless the President is satisfied that there is no advantage in doing so.

6 6 Internal Review Section 66 of the SAET Act provides for internal review of decisions of Commissioners, Magistrates, or other non-presidential members of the Tribunal. Rule 142 of the SAET Rules provides an application for internal review must be in the approved form and contain details of the Tribunal s decision. Under s 66(1)(b) of the SAET Act an application for internal review must be made within 1 month of the date of the decision complained of. Appeals under s 67 of the SAET Act Rule 142 provides that an appeal to the Full Bench of SAEC must be instituted within 1 month of delivery of the decision complained of unless a relevant Act or another specific rule provides otherwise. Any detail about the content of appeal books and outlines of argument considered important may be provided by a future practice direction. Appeals in RTW Act matters are specifically dealt with in Part 22 of the SAET Rules. A 14 day appeal limitation period from the date orders are made in a matter is provided for by r 121(1) RTW Act jurisdiction changes Many of the 2015 Rules that concerned RTW Act matters are now found in other Parts of the Rules rather than in Part 22. The change was a natural consequence of the expansion of SAET s jurisdiction. Part 22 makes specific reference to applications for expedited decision (AEDs), reviews of average weekly earnings decisions, the reconsideration and variation of decisions made under the RTW Act, the use of IMAs, summonses for medical records, interlocutory applications, appeals, the approval of some settlements, costs, s 18 applications and s 48(18) applications. Changes have been made to previous practices in RTW Act matters in the following areas: Reconsideration Rule 115 provides that an interested party which does not accept the variation of a disputed decision made at reconsideration must advise the Tribunal of that within 14 days and at the initial directions hearing (IDH) in any event. This change was made because there have been instances where a party has not been advised when a reconsideration has altered the position initially taken by a compensating authority. The Tribunal has assumed responsibility for ensuring all parties are advised of changes to the status of a decision. Summonses for medical records Rule 119 concerns summonses for medical records. The ambit of the former r 89 has been extended. Rule 119(4) allows irrelevant parts of notes to be redacted if good grounds exist for doing so. The request for a redaction can be made to a Presidential member on an ex parte basis but the applicant must advise other parties that the application has been made.

7 7 Interlocutory applications Rule 120(3) provides that in the ordinary course, interlocutory applications will be dealt with on the papers without oral argument. Parties will be given an opportunity to put all relevant matters in writing. Appeals Rule 121 makes some important changes to the appeals procedure in RTW Act matters. An appeal must be filed within 14 days. Any cross appeal of notice of alternate contention should be filed within 14 days of service of an appeal. An outline of argument must be filed by an appellant within 2 months of an appeal being filed. The respondent s outline of argument is to be filed within 1 month of service of the appellant s outline of argument. All such documents must be served within 3 business days of being filed. A party may seek leave to file a further outline of argument and leave to do so may be granted on such terms as considered appropriate under r 121(7). Section 18 applications An IDH before a Commissioner now takes place before a s 18 application is referred to a Presidential member for hearing. The Commissioner will decide whether the matter should be conciliated. If it is, the Commissioner will usually conduct the conference. The change was made because a settlement conference is usually requested in a s 18 application. Notices to be heard Under r 130, if a party which has filed a notice to be heard fails to attend a conference or hearing without good cause and without providing an explanation for the absence, the Tribunal member conducting the conference or hearing may proceed as if the notice had not been filed. If a party who has filed such a notice fails to attend 2 or more conferences or hearings, a Tribunal member may order that the notice be dismissed and proceed as if the notice had not been filed. Disruption of Tribunal proceedings and Contempt Rule 150 of the SAET Rules deals with disruption of Tribunal proceedings and is in the same form as r 103 of the 2015 Rules. Rules 151 and 152 are new and concern contempt of the Tribunal. The procedure for dealing with a contempt before the Tribunal is substantially the same as that of the Supreme Court. Rule changes Rule 11 of the SAET Rules will be amended in the near future to provide as follows: In addition to the jurisdiction conferred on the Court by the SAET Act or a relevant Act, non-criminal proceedings under any of the following Acts or parts of Acts, and proceedings in the Tribunal s jurisdiction at common law or in equity, are assigned to the Court should the relevant proceedings be referred for hearing and determination at the conclusion of conciliation in that part of the Tribunal that does not sit as the Court:

8 8 (a) Sections 8, 11 and 12, and Chapter 3, Part 6 of the Fair Work Act 1994; (b) Section 13 of the Long Service Leave Act 1987; (c) Return to Work Act 2014, except for proceedings under Part 7 of that Act; (d) SAET Act; and (e) Work Health and Safety Act 2012, except for matters under section 65, Part 7 and Part 12 of that Act. The change is necessary because some matters referred to the Court under the current form of r 11 involve the use of supplementary panel members. Rule 22(3) of the Rules will likely be amended to read as follows to correct a typographical error: (3) If the respondent contends that the appeal should be dismissed for reasons different from those contained in the decision being appealed, the respondent must file a notice stating in detail the grounds on which the respondent asserts that the decision should be upheld (notice of alternative contentions) and provide a copy to the applicant within 14 days after being served with a copy of the appeal. Rule 55(7) will likely be amended to correct a mistaken reference to sub-rule (4). Both references to sub-rule (4) should be amended to refer to sub-rule (6). Mark Calligeros 12 October 2017