In three decisions delivered since late August, the Full Court has held that actions:

• brought in the South Australian Industrial Relations Court (IRC) exercising federal jurisdiction; and
• commenced, but not completed, prior to 1 July 2017,

were not transferred to the South Australian Employment Tribunal (SAET) upon the dissolution of the IRC on 1 July 2017. Only those proceedings brought under the Fair Work Act 1994 (SA) were transferred.

At first blush, this suggests that a number of proceedings on foot in IRC as at 1 July 2017 may now be languishing without a forum.  However, the Full Court has held that rumours of the IRC’s death have been greatly exaggerated, and identified at least one means by which SAET’s jurisdiction may be enlivened over continuing IRC matters.

ORIGINS OF SAET

SAET was established in 2015 under South Australian legislation to deal with matters arising under the Return to Work Act 2014 (SA).  Initially, SAET operated in parallel with other forums (including the IRC), exercising jurisdiction under predominantly State legislation, although the IRC was also empowered to exercise federal jurisdiction under certain enactments including the Fair Work Act 2009 (Cth). 

In July 2017, several of the those forums were dissolved, and their respective jurisdictions – with the exception of federal jurisdiction – transferred to SAET pursuant to Statutes Amendment (South Australian Employment Tribunal) 2016 (SA), s 69(13) (2016 Amendment). (Despite SAET now being vested by the Commonwealth with federal jurisdiction for new matters, no corresponding provision was enacted to transfer existing federal proceedings in the IRC across to SAET.)

WHAT HAPPENS TO FEDERAL PROCEEDINGS FROM THE IRC?

Reconstituting the IRC – Kronen

In the earliest of the three decisions, Kronen v Commercial Motor Industries Pty Ltd (trading as CMI Toyota) [2018] FCAFC 136 (Kronen), the Full Court upheld first instance findings that proceedings brought under the Workplace Relations Act 1996 (Cth) on foot as at 1 July 2017 had not been transferred to SAET by the 2016 Amendment, but overturned a finding that the plaintiff’s cause of action ceased to exist upon the dissolution of the IRC. 

Relevantly, the Court ruled that:

• in the absence of clear intention to do so, existing proceedings and causes of action are not affected by the amendment, expiry or repeal of a relevant enactment: Acts Interpretation Act 1915 (SA), s 16(2);
• South Australian statutes are to be construed in such a way that the Parliament’s legislative power is not exceeded, with the result that the 2016 Amendment is not intended to transfer federal proceedings to SAET: Acts Interpretation Act, s 22A; and
• crucially, the IRC has not ceased to exist and can be reconstituted in order to close out remaining proceedings: Acts Interpretation Act, s 16(2A).

Informal application for relief in SAET – Ardlie

Three weeks later in Qantas Airways Limited v Ardlie [2018] FCAFC 154 (Ardlie), the Full Court reiterated its earlier findings in Kronen, but nonetheless upheld SAET’s exercise of jurisdiction over the parties’ dispute.  

In Ardlie, the IRC had made findings, but not orders, prior to 1 July 2017 in proceedings brought under the Fair Work Act 2009.  The parties provided consent orders to SAET purporting to give effect to those findings.  Orders made by SAET were then appealed against, on the basis that SAET lacked jurisdiction.

The Full Court, in addition to holding that the IRC could be reconstituted to make final orders, ruled that the transferring provisions of the 2016 Amendment were not conclusive of SAET’s jurisdiction in relation to affected federal proceedings from the IRC.  Specifically, the Full Court held that:

• the rules of SAET permit parties to make informal applications for relief: South Australian Employment Tribunal Rules 2017, r 28;
• this includes applications for relief under the Fair Work Act 2009: Fair Work Act 2009, ss 545, 551; Judiciary Act 1903 (Cth), s 79(1);
• the parties’ email to SAET enclosing consent orders amounted to such an application; and
• orders made by SAET pursuant to that application were, therefore, within jurisdiction.

Proper appeal forum – Altintas

The final case, Altintas v O’Dea Lawyers [2018] FCAFC 165, concerned SAET’s jurisdiction to hear an appeal from a decision of the IRC and, as a related matter, the jurisdiction of the Federal Court to hear a question reserved to it by SAET in such an appeal.  

Consistently with its earlier findings in Kronen, the Full Court ruled that the 2016 Amendment did not seize SAET with jurisdiction over the proceedings, with the result that an appeal from the IRC’s decision at first instance would only lie in either the IRC reconstituted for such a purpose, or in the Federal Court. 

On the basis that any appeal from SAET’s decision in the appeal from the IRC could not, therefore, be heard in the Federal Court (on the basis that SAET itself lacked jurisdiction), it was not open to SAET to reserve a question to the Federal Court for determination.

CONCLUSION

It remains to be seen whether enough cases remain on the IRC’s books to justify any legislative intervention, or whether there are any proposals to re-staff the IRC bench for these remaining matters.  Stay tuned for further updates!