TRAINING AND SKILLS DEVELOPMENT BILL

Committee Stage

In committee.

(Continued from 7 May 2008. Page 3252.)

Clause 63.

Mr GRIFFITHS: I think it is fair to say that in relation to compliance notices, which clause 63 concerns, the consultation that the opposition has undertaken is that it is not generally supported. There is a concern that employers must fulfil their obligations under the training act, and we understand that. However, the organisations consulted do not necessarily support penalties and expiation fees—I note that the minister, through amendment, is intending to remove some penalties and expiations—which impose fees on the employer for breach of contract. It is inequitable that penalties are imposed on employers, but not on the apprentice or the trainee, as put to us by a business case.

This bill introduces penalties for not complying within a specified time period and the only option available to the employer, should they wish to dispute the compliance notice for reasons as described in, I believe, clause 63(4)(a) and (b) is to apply to the Industrial Relations Commission of South Australia for a review notice to be issued.

Likewise under this bill, if the commission suspects on reasonable grounds that a party to the contract has contravened a provision of the training contract, it may refer the matter to the Industrial Relations Commission for a review of the notice. It is not clear how compliance notices will be reviewed. I ask the minister to comment on that, and I ask whether employers will be permitted representation and if there is an appeal process.

The Hon. P. CAICA: It is true that stakeholders have expressed some concern over how, more so, the provision is going to be applied and who has oversight for those decisions that are taken. But it is a new provision, it forms part of the strengthened suite of compliance tools, which, certainly in the government's view, support early intervention strategies and a greater field of presence. I do not wish to bang on for too long, but it is about completion rates, it is about early intervention, it is about all those things and ensuring that we have the tools in place to increase the level of completion rates.

I have been told, and I know from the discussions and consultations that we have had, that it is supported in principle by both the employer and the employee associations and it will be supported, of course, by the development of a policy framework establishing processes and procedures, together with criteria, to ensure consistency and fairness in the application of evidentiary requirements as well. I have given an assurance to Business SA and SA Unions that they and other key stakeholders will be engaged in the development of these processes and protocols.

Clause passed.

Clause 64 passed.

Clause 65.

The Hon. P. CAICA: I move:

Page 38, lines 7 to 9 (inclusive) [clause 65(2)]—Delete subclause (2)

I would like to refer to yesterday's discussion on clause 51. On reading the transcript overnight and, certainly, when I was speaking yesterday, I understood what I was saying, but I think that others may not necessarily have understood what I was saying. I wish to clarify certain aspects.

Yesterday, the shadow spokesperson raised a question relating to termination under that particular provision. I would like to clarify that by elaborating on yesterday's explanation by stating that the purpose of clause 51 is to stop unlawful terminations of a training contract and to allow the training and skills commissioner to terminate a training contract where the parties mutually agree to that termination.

It also gives the Training and Skills Commission the ability to consider an application by one party to terminate a training contract; however, this would be done only under exceptional circumstances. As I stated yesterday, the process will have an educative focus and not a sledgehammer to crack a walnut approach.

Clause 65 provides the South Australian Industrial Relations Commission with the ability to include the termination of a training contract as one option for consideration when making an order of an unresolved dispute relating to that training contract. I thank you for allowing me to clarify that particular matter.

Amendment carried.

Mr GRIFFITHS: The Liberal Party has not actually supported the involvement of the Industrial Relations Commission. Certainly, in the submissions that we have received from a variety of people there have been concerns about the involvement of the Industrial Relations Commission. The minister has certainly provided an explanation of the reasons that is occurring in the interest of simplicity and to ensure that there is a structured organisation that has control over it, but there is a variety of questions as to how it may work.

Some of this might relate to some of my confusion. As much as I made an effort to ensure that I was well briefed on it, my position was that there would be total Industrial Relations Commission involvement. Business SA, in its discussions with me, suggested an alternative model where an independent tribunal was involved and where there was an appointment of the IRC commissioner as chair of the tribunal, with a panel of people from employer and employee representatives—four or five people from each group—to sit in judgment but be removed from the Industrial Relations Commission. Can the minister give an explanation, for the benefit of anyone who reads this in the future, as to what the true intent will be?

The Hon. P. CAICA: The member is quite correct in his overview that the training tribunal will be headed by a representative of the South Australian Industrial Relations Commission, that the tribunal will be made up of an employee and an employer representative, and that they will deal with matters of dispute. If we have a look at the level of dispute that occurred under the auspices of the GDMC, we were talking about 35,000 training contracts, and in total very few disputes that arose.

The genesis of this matter and this clause was to look at a couple of factors. One is the timeliness by which matters can be dealt with, and, just as importantly, the ability to be able to close and finalise those particular matters. To that extent, we needed to put it in a jurisdiction that was able to impose lawfully whatever penalties or orders may be required at that particular time.

There has been some consternation about the South Australian Industrial Relations Commission. I draw the committee's attention to the fact that, whilst historically if a matter went to the GDMC the relationship between the employer and the trainee and the employer and the apprentice was such that there was very little opportunity for conciliation and re-forming a meaningful relationship.

We should look at the most recent history of the South Australian Industrial Relations Commission in its dealings with matters of conciliation. The idea and the thrust behind this legislation is to have early intervention measures so that conciliation will in all likelihood occur to a great extent before it goes to the commission. The most significant role of the commission in the lead-up to any matter that is heard will be attempting to settle by agreement between the parties.

I highlight that, in 2006-07, 83 per cent of unfair dismissal applications before the South Australian Industrial Relations Commission were settled by agreement; 14 per cent of the rest were settled at the arbitration stage before determination; and 3 per cent were ultimately determined by the commission. The figures were very similar for the year 2005-06.

I wish to make the point that we are engaging people through the SAIRC who are experts and who have expertise in conciliation. More than anything else we want matters to be resolved between employers and employees so that the original intent of the contract, that is, the training and vocation of young people, can continue to the extent that they complete their award or qualification.

Mr GRIFFITHS: My question relates to clause 65(3)(h), which states:

It may order an employer to pay compensation for any breach of the training contract.

My concern is that, on my reading of the bill, there does not appear to be a definition for 'paid compensation'. This implies that damages are able to be awarded to an apprentice or a trainee, but neither the Industrial Relations Commission nor a trainee disputes tribunal, even though that option is not going to be taken up, must not be able to order an employer to pay compensation to an apprentice or trainee. We cannot see that there is any similar provision for employers. Therefore, can the minister give us some explanation as to what is intended by that paragraph?

The Hon. P. CAICA: Paid compensation, as highlighted in paragraph (h), allows for the SAIRC, in cases involving suspension, to make an order requiring the employer to pay compensation for any non-monetary benefit to which the apprentice or trainee would, but for the suspension, have been entitled to receive. In other cases, compensation for any loss other than the loss of remuneration suffered by the apprentice or trainee as a result of the employer's breach of the training contract—for instance, loss of training time because an employer would not allow the apprentice or trainee to attend their classes—is the thrust behind this particular clause.

Mr GRIFFITHS: Therefore, it is non-direct financial remuneration, is it? I am a little confused. Can you provide a practical example of what that might extend to? I need some clarification, please.

The Hon. P. CAICA: The best example I can give—and you and I are both familiar with the trials and tribulations occasionally involving young apprentices—is that compensation may well be, for example, where the trainee or apprentice is required to undertake some training at night, outside normal hours; that is the only time it can be done, and that is the form of compensation to which we refer. That is probably the best example that I can give.

Mr PISONI: Minister, is it the intention of the clause that the IRC can actually award damages to the trainee for any loss of future employment they may have gained through the skills which they would have acquired had they completed their training but which they will no longer be able to acquire because a dispute is unresolved?

The Hon. P. CAICA: I thank the honourable member for Unley for his question, and I can say no.

Mr PISONI: Clause 65(2) states:

If the Commission suspects on reasonable grounds that a party to a training contract has contravened a provision of the contract or this act, it may refer the matter to the Industrial Relations Commission.

Does that mean it is the intention of—

The CHAIR: Order! Member for Unley, that subclause has been deleted.

Clause as amended passed.

Clause 66 passed.

Clause 67.

Mr PISONI: I think that this clause will go down as being the 'union clause' in this bill. Paragraph (a) provides:

Representation of a party by a legal practitioner or registered agent will not be permitted.

People would say that on the face of it that sounds fair and reasonable. We do not want these situations to be expensive. We do not want these resolutions to take a long time and be held up with a lot of legal argument. Paragraph (b) states:

If a party to the proceedings is a body corporate—the Industrial Relations Commission may, if the party seeks to be represented by an officer or employee who is not a legal practitioner or registered agent, permit such a representation.

What that is saying is that if you are a sole trader, if you are a partner or if you operate a trust, you as the employer are the only person who is allowed to represent yourself in that situation. There is no facility for you to appoint somebody else who may be a better communicator than you are. We have a huge skills shortage here in South Australia and we are seeing an increase in 457 visas to get more and more skilled tradespeople to come to South Australia. What happens when they get here? They decide it is a great place to live and they want to become permanent residents and Australian citizens. I welcome that; that is a great way of expanding our population and expanding our skills base, but they might have come from a non-English speaking country.

They may have enough grasp of the English language to understand the different colour codes for plumbing or to read plans for putting up house trusses if they are a carpenter, but they will not be in a position to represent themselves in the Industrial Relations Commission if there is a dispute to be resolved. We want to encourage them to take on apprentices, we want it to be easy to take apprentices on, and we do not want to put impediments or barriers in the way of taking on apprentices. They are daunted by this appearance to the Industrial Relations Commission. Then clause 67(1)(c) is the double-whammy because it provides that:

if a party to the proceedings satisfies the Industrial Relations Commission that he or she will be disadvantaged in the proceedings if he or she is not represented by another person—the Industrial Relations Commission may permit the party to be represented by a person who is not a legal practitioner or registered agent—

but only if that person is doing it for free. In other words, you get a union representative who might be legally trained to come in and advocate for the trainee but you cannot have a representative from Business SA or any other group to come in and represent the employer.

We have this huge David and Goliath battle between the immigrant carpenter or plumber, who is just getting used to the English language, and the might of the South Australian union movement, which is up against this small business person who is, to all intents and purposes, wanting to do the right thing, wanting to contribute to their new country. It does not necessarily have to be an immigrant. It could be someone who simply had difficulty dealing with the formalities academic part of schoolwork but who is a very good tradesman who has very good skills to pass on to their apprentice. That person may not have the ability to articulate their case and does not have the ability to put their best foot forward in a situation of confrontation like this and may require some representation.

Is it the intention of the minister to exclude sole traders, partnerships and those who operate under trusts from being able to have someone who can represent them and articulate their case without paying for it? This says that they can only have that if that person is not really qualified to do that, and they are not paid to do it. They have to find a friend, a relative or maybe even a customer or client. I would just like to know the minister's intention in relation to that. Also, is it the intention of paragraph (c) to encourage more people to join unions so that they can have unions advocate for them in this instance?

The Hon. P. CAICA: The member for Unley raised a lot of points. What we are doing here is transitioning the circumstances before the GDMC, and parties were not allowed to be represented by legal entities in those proceedings. The reality is that, by the time the dispute gets there, it is a dispute between the members or party to that particular contract. We do not want a legal argument about the situation. What we want is the best possible environment in which the matter can be resolved. With the greatest respect to the member for Mitchell, we do not want it to be a lawyer's breakfast. We want the matter resolved and the best way of resolving disputes is between the two individuals who are upfront in the centre of that particular dispute.

In relation to the body corporate, a body corporate cannot physically represent itself and the process we are undertaking is not unknown. It is very similar to the minor civil court and the Magistrates Court that encourage some informality. We want it to be a safe, supportive environment for both parties, whether that be an employer or an employee.

Progress reported; committee to sit again.

[Sitting extended beyond 17:00 on motion of Hon. P. Caica]