STATUTES AMENDMENT AND REPEAL (TAFE SA CONSEQUENTIAL PROVISIONS) BILL

Final Stages

Consideration in committee of the House of Assembly's message.

Amendment No. 1:

The Hon. R.P. WORTLEY: I move:

That the Legislative Council do not insist on its amendment.

The government strongly opposes the amendment. All of the amendments being insisted upon by the opposition remove the term 'AEU' (meaning the South Australian branch of the Australian Education Union) from the Education Act 1972. If these amendments are passed it would mean that all references to the AEU and the Institute of Teachers will be deleted from the Education Act without any formal consultation.

The intent of the bill and the original unamended clause was to make minor updates to terms used in the Education Act so that references to the AEU are consistent throughout the act. That is why it was opened up, not to further protect the Australian Education Union, as the opposition in the other place stated. The bill will tidy up the statutes and make necessary minimal changes to legislation so that TAFE SA can operate effectively under the TAFE SA Bill 2012.

The bill was not intended to make changes to the substance of the act, nor was it intended to make any changes to bodies established under the act. By removing references to the AEU or the Institute of Teachers, as they are referred to in the act, the opposition and the members supporting these amendments are undermining the role of the union that represents a significant number of staff in both TAFE SA and government schools.

The amendments make significant changes to the Education Act and exclude the AEU, at great cost to the departments involved, when the bill was intended to deal with consequential amendments only. For this reason, the government opposed the amendments to delete references to the AEU.

The removal of the AEU's role in the Education Act will also have a significant impact on the constitution of a number of boards and committees, particularly the Teachers Appeals Board, established under the act, including: the review panel for reclassification of school teachers (section 29); the Teachers Appeal Board (section 45); committee to recommend promotional level appointments (section 53); and review committees for the closure or amalgamation of government schools. The government also opposes the amendments that impact on those bodies, which I will discuss in more detail when we reach their amendments.

Let no member of this chamber be under any delusion, what we have here is a classic example of union bashing. What has been done, in effect, if this amendment continues to go through, is to take away representation, on bodies that have been negotiated over many decades, at the stroke of a pen and within 10 minutes. There will be no consultation with anyone, and I think it should be against the principles of anyone in this chamber to delete and remove, at the stroke of a pen and one vote in the house, provisions that have been negotiated between the education department and teachers.

The union represents nearly 85 per cent of teachers in public schools and it also represents about 85 per cent of principals, so, it has a right, and a right which normally, within Australian society, is accepted and acknowledged, that when a union has such high representation and high membership it should be represented on those boards. The people they put on these boards are trained. They are trained in whatever is required for that particular board, and that is why teachers have faith in the people that the AEU put on these boards to represent their interest.

I ask the chamber to desist from this amendment. If this chamber wants to take away the rights of teachers and the unions, it should do it in a proper way, with proper consultation, not just sneakily through a backdoor mechanism when the act is opened up just for minor consequential amendments. I seek the indulgence of the house and desist from requiring this amendment to go through.

The Hon. R.I. LUCAS: The minister has just asked the council to vote against what his government's wishes are; but anyway, that is up to him. In speaking to the first amendment, and in essence insisting on the Legislative Council's position, I want to address the package of amendments that the Liberal Party proposes to move. The Hon. Mr Darley has a particular amendment which I am sure he will speak to when the time is appropriate. I intend to address my comments in relation to amendment No. 1 to the package of amendments that are required.

The first point I would make is that what the minister has just said is a nonsense. No-one is actually preventing the AEU from doing anything. The AEU, if it gets the support of teachers and its members, can continue to have its representatives on all these panels and boards and committees. All that is being done is to stop the lockout, or the compulsion, which says no matter how good or how competent a teacher might be in terms of the willingness to perform on one of these boards or committees, if he or she chooses not to be a member of the AEU, they in some way are treated as an inferior being. They are not allowed to represent their colleagues and workmates. They are not allowed to sit on a committee, a council or a board.

That is the proposition that the minister refuses to address. He repeats the slogans given to him by the AEU and his staff to say that this is union bashing. As I said, nothing will prevent a competent AEU person being elected by his or her colleagues to one of these boards, committees, etc., if they have enough support. The minister says the number is 85 per cent. No evidence has been produced that they represent 85 per cent of the number of teachers. That is just a claim from the minister. I would like to see the evidence produced that that is the number here. I would acknowledge that they represent a majority of teachers, but there is no evidence being produced to say that it is 85 per cent.

If they have the support of 50 per cent plus one, or 85 per cent of the teachers for a particular election, then they will be there. The AEU will still be on the committee, the council, the board, or whatever it might happen to be. They will continue to be represented, continue to put their point of view. Nothing in the amendments actually prevents the AEU from being elected if supported by their colleagues. What it does prevent, as I said, and I repeat it again, is the compulsion that you have to be a member of the AEU. It does prevent the situation where an extraordinarily competent teacher who chooses, for conscience reasons or otherwise, not to be a member of the union is excluded from being elected to a position on a committee, a council or a board.

That is the position that the member for Unley has put on behalf of the Liberal Party and the Liberal Party parliamentary room has supported that. The change in the package of amendments before us is that there was an unintended consequence of the amendments originally drafted for the member for Unley and for the Liberal Party, and that is to be corrected or sought to be corrected if the Legislative Council agrees to this package of amendments that is before us this evening.

The position, as the member for Unley has put, is that the Liberal Party had no intention to change the minister's role in selecting appointments to the various panels and, therefore, the amendments to the package before the house today rectifies that particular anomaly. The amendments will make it clear that the process of eligibility, election and selection of teachers for these panels and boards will be open to all members of teaching staff and is not restricted to those who are members of the AEU.

The minister highlighted this issue that there was an unintended consequence of the Liberal Party's amendments. He spoke at some length about that issue in the House of Assembly. The member for Unley has listened to the position of the minister and has asked parliamentary counsel to correct that unintended consequence. The amendments before us this evening will correct that unintended consequence and that criticism, if these amendments pass, will no longer be valid.

The Hon. T.A. FRANKS: I rise to put the Greens' position on record. We did not support these amendments to the bill in the first instance during the debate and, certainly, we do not insist upon this council continuing to have what I believe are union bashing amendments inserted into this piece of legislation.

I believe they have unforeseen consequences and I would point out that it is very misleading to say that this, in fact, is enabling all staff members to be part of this committee. Let us have a look at one particular committee that this affects, the appeal board, which is made up of three members: one being a member of the Industrial Court nominated by the President of the Industrial Court (the presiding member of the appeal board); one being a member selected by the chief executive of the relevant department, that being DECD or DFEEST, from a group of staff on call to hear appeal matters nominated by the relevant minister; and one being a member selected by the appellant from a group of staff on call to hear appeal matters nominated by the AEU.

What, in fact, this amendment does is not restore the balance but takes away one of the staff positions. So, those who are up before the appeal board have less of a say, have less of a voice, in appeal matters. I do not think that that was the intention of the original amendments and I certainly would hope that we would be wanting to give those who work within these institutions the most protections possible; that is, both from their union and also from other staff members. No staff member is precluded from this process in terms of putting themselves forward for this particular appeal board; however, the AEU is also included in the process and unions have a right to be included in the process.

I would remind members that, during the debate on this bill, when we looked at the corporatisation of TAFE, we restricted and moved away from the history that we have in educational institutions in this state—and, in fact, it is a proud history of educational institutions—for institutional democracy. Our governance of this TAFE SA will now actually have a board that does not have representation in the same way that it has in the past from staff, students and those who are within a TAFE community, if you like. So we have already downgraded the role and the voice that staff have within this institution. By supporting these amendments to eradicate the references to the union, we further downgrade that institutional democracy.

I would strongly say that the Greens are somewhat horrified that this has the support of this committee. I think that it has not been well thought through. I think it has not been well consulted. It has been moved in the final moments of the debate on this bill and it certainly comes before us without adequate information to inform decisions, and that appeals board membership is just one where we can see that the arguments put forward that staff would have exactly the same rights to representation were, indeed, a fallacy. With that, the Greens look forward to some common sense from this committee.

The Hon. K.L. VINCENT: I will just quickly put on the record that following further conversations with constituents, including the AEU—and I am very grateful for those conversations—I am no longer able to support this package of amendments. I do think that they have some merit. In my original contribution on this bill, I said that I am concerned about the largely rushed nature in which they have gone forward and that, if they were to be reintroduced in some other form or in a less rushed manner, I would be very happy to reconsider them. However, at this time I am not able to give them my support.

The Hon. R.P. WORTLEY: I appreciate the sentiments and the position taken by the Hon. Ms Kelly Vincent. She has obviously put a bit of thought into the consequences of what is happening now. I just want members here to consider a number of issues. First of all, there are quite a number of acts and pieces of legislation. Actually, there are many pieces of legislation which offer representation on various boards. Most unions are on boards, and they are there by the very nature that they represent the vast majority of the people in their trade or industry.

There are also a lot of businesses represented. Just in my own portfolio, SafeWork SA, I have IRAC and I have the SafeWork SA Advisory Committee. They have a number of people on their boards—unions and employers. Not everyone belongs to these employer associations. Are we going to now take away Business SA's representation on boards because they do not represent everyone out there in business? They are recognised as the spokespeople for business in this state, yet, if you want to take what you are putting today to another level, they have no right to be on that board. They have to go. They have to go because not everyone in business is a member of Business SA.

We can say the same about the Motor Trade Association. We can say the same about the Australian Hotels Association. None of them have everyone as members, yet they are recognised in these acts because they represent a major proportion of the people in those industries. They also have expertise in those industries. They have paid officials, and they are trained. That is why they are recognised. They are recognised right throughout many acts and pieces of legislation. So what has been done here today without any consultation with anyone is going to have consequences. If this chamber is to be fair dinkum and consistent, this will have consequences right throughout the state.

I know that the trade unions are certainly starting to beat the war drums. They are saying that every other union represented on a board—and there are many; there could be hundreds of boards which have representation from both unions and business—will be very concerned about what is happening here, because what we are doing is setting a precedent. The way it has been done has been sneaky. There has been no consultation whatsoever. This will be viewed very poorly.

It is all very well to be attacking the unions here today. What we also have to understand is that there are businesses out there that have the same representation on boards and which, if we take the argument by the Hon. Mr Lucas, have no right to be on those boards. Can you imagine the sort of process that Business SA would have to go through to get support from all the businesses around the place to be represented on these boards? It just does not make sense.

It is the same with the plumbers and gasfitters or the electrical union, which have thousands of members. There are thousands of electricians. I could go through more: the Australian Medical Association, the Farmers Federation—they are all on boards. They have all got there because of the nature of the business and because they represent a significant number.

The Hon. J.S.L. Dawkins interjecting:

The Hon. R.P. WORTLEY: You ought to be ashamed of yourself, John.

The Hon. J.S.L. Dawkins interjecting:

The Hon. R.P. WORTLEY: You ought to be ashamed of yourself. You are trying to justify it. We should not be so eager to rush in and wipe out representation on these review panels and boards. If that seems to be the inclination of some of you, there should be a bit of consultation about this. You would never let the government get away with doing what you are doing, and with no consultation. There seems to be a double standard where Independents and the opposition can be high and mighty and can come up with these positions of accountability and transparency yet, when it suits them, they can go and kick a union in the guts without any consultation whatsoever. What I would like members to do is think of the consequences of what you are doing today and who it may affect in the future. As I said, I think the trade union movement and business should be very wary of the precedent being set here today. I urge all members of this chamber not to support the amendment.

The committee divided on the motion:

Majority of one for the noes.

Motion thus negatived.

Amendment No. 2:

The Hon. R.P. WORTLEY: I move:

That the Legislative Council do not insist on its amendment.

The government opposes the amendment moved by Mr Darley, which is consequential to the deletion of the references to the Australian Education Union. This amendment removes a reference to the AEU in section 14C of the Education Act 1972, which deals with a review committee appointed by the minister to review the closure or amalgamation of government schools. As such, it has absolutely no relevance to TAFE SA or to TAFE SA staff. By removing references to the AEU, parliament is undermining the role of the unions that represent a significant number of men and women in both TAFE SA and government schools.

There is a strong argument for the AEU involvement in the process. As the representative body of employees, it is entirely legitimate that the union be involved. This has been in place, and there is no evidence to suggest that it is not working. Again, the original bill was intended only to make updates to language and terms used in the Education Act. There was no intention to change the bill in any substantial way. The government was not intending to change the operations of TAFE in any substantial way, much less the Department of Education and Child Development.

The only thing this amendment, and this whole serious of amendments, does is attack the union, a union legitimately representing the interests of its members. Unions have a very proud history in this state; they have delivered outcomes that are good for working people. As this amendment is consequential to the previous amendment deleting reference to the AEU, the government is opposed for the same reason.

I would like to add once again that, in relation to the consequences of this unprecedented action, we now have to question, if all of these amendments are passed, the legitimate role of all the unions and employer associations that go right through nearly every act we have and whether they are consistent with the philosophy they are talking about today. I hope this committee opposes these amendments.

The Hon. J.A. DARLEY: I move:

That the Legislative Council no longer insist on its amendment but makes the following amendment in lieu thereof:

New clause, page 5, after line 5—After clause 8 insert:

8A—Amendment of section 14C—Review committee

Section 14C(1)(d)—delete paragraph (d) and substitute:

(d) an officer of the teaching service (not being a teacher at a school that is subject to the review) nominated in accordance with the regulations; and

Members will recall that the previous amendment I moved had the effect of replacing the requirement for a person nominated by the AEU with an officer of the teaching service, in accordance with the regulations, where a review is to be conducted in relation to the closure or amalgamation of the school.

The effect of that amendment would have been to require the officer of the teaching service to be nominated by all other teachers when, in fact, what was intended was to have a teacher, whether or not they are a union member, nominated in accordance with the regulations. The new amendment clarifies this. It is consistent with the opposition's position and, importantly, still achieves the same purpose insofar as it replaces the exclusive right that has been given to the Australian Education Union with one that applies to all teachers.

It is important to emphasise that the amendment does not preclude union members from being involved in this process. It simply opens it up to all teachers, whether or not they are union members, to be nominated in accordance with a scheme to be implemented by way of regulation.

The Hon. R.I. LUCAS: I support the position being adopted by the Hon. Mr Darley. I think the final quote made by the minister is correct, and that is that the first amendment we have just voted on is, in essence, the test vote for this whole package of amendments. So, we can have the same debate on each and every clause if we wish to do so, but the decision that was taken in the first amendment is, in essence, a test vote for all of the others. It would not make much sense to be supporting some of these and not supporting others, in my view.

Nevertheless, we are going through the process again. I am not going to repeat the argument, other than to say that, because of the complicated nature of this, we are supporting the position of the Hon. Mr Darley, which will mean that, in the first instance, we will not insist on the Legislative Council amendment. If that is the position adopted by the majority in the committee, we will agree with the amendment that Mr Darley then moves. So, we will have to have two votes for this provision.

The Hon. T.A. FRANKS: The Greens will be opposing this amendment moved by the Hon. John Darley with regard to school amalgamations and closures. There is, in fact, quite an extensive process and I point out that, for example, local government is part of this review committee. Do we say that the local government representative shall simply be a member of the local community or shall we insist that they are a duly elected representative of the local government in that area?

However, if the member was serious about workers, who are looking at their workplaces being closed or amalgamated, having a real voice in this, then this motion would ensure that a member of the teaching service could be appointed in addition to the union not instead of the union.

The committee divided on the motion:

Majority of 1 for the ayes.

Motion thus carried.

Amendment No. 3:

The Hon. R.P. WORTLEY: I move:

That the Legislative Council do not insist on its amendment.

The Hon. R.I. Lucas interjecting:

The Hon. R.P. WORTLEY: You'll have a vote for every one of them. The section that is affected by this amendment is section 29 of the Education Act 1972, which deals with the constitution of the Classification Review Panel. This clause only applies to schoolteachers and, yet again, has no relevance to TAFE SA or TAFE SA staff.

I am glad to see this alternative amendment as it shows that the opposition is no longer insisting on an amendment that was unworkable and resulted from the almost haphazard, wholesale deletion of references to the AEU from the Education Act. The new amendment tabled by the opposition addresses the concerns about the balance of the review panels and provides for the employer to have a management perspective represented.

However, the amendment still makes significant changes to the constitution of the review panel, and the role of the Australian Education Union is still deleted without any formal consultation. The opposition has not put forward any arguments or any evidence that the current system does not work. There is, however, a strong argument for AEU involvement in the process. As the representative body of the employees, it is entirely legitimate that it be involved.

As reported previously to the house, the purpose of this legislation is to set up TAFE SA as a statutory corporation so that it can flourish and excel in the new contestable funding environment under Skills for All. I am pleased to say that the TAFE SA Bill has passed through this parliament. This is the main issue here: the establishment of TAFE SA as a statutory corporation, TAFE SA's functions, TAFE SA's role and how it should be set up for the next few years as we deliver the Skills for All reforms.

There have been very few issues raised in the parliament about the legislation to change the governance arrangements. All of these amendments do nothing to add value to TAFE SA as a statutory corporation and they do not relate to the main aim of the legislation. They are making fundamental changes to the Education Act that have a far greater impact on the officers in the education system than on TAFE SA.

I would also like to just make it clear that the Independents are supporting this. I do not know whether or not they think there is a vote in this for them out in the electorate because once the teachers union send out to their members in their journals the names of all those people who have taken part in quite a shameful act in this parliament, there will be no votes in it for them. The teachers will be absolutely outraged. And do not forget—

Members interjecting:

The Hon. R.P. WORTLEY: You're not even a contender in the next election. Not only the teachers union but every union in this state, which cover 200,000 members, will no doubt in their journals be advising their members of what they have done and the threat they have to their own boards, and quite legitimately too. You cannot sit there and do what you are doing now and set the precedent and say, 'But that won't happen anywhere else,' because it should not happen anywhere. It should not happen today. There has been no consultation and I think everyone, and particularly the Independents, should be ashamed of themselves for supporting it.

The Hon. R.I. LUCAS: All I can say is that the minister is a slow learner but if he wants to divide on every one of these amendments, that is his decision. I move:

That the Legislative Council no longer insist on its amendment but makes the following amendment in lieu thereof:

Clause 9, page 5, lines 7 to 11 [clause 9(1) and (2)]—Delete subclauses (1) and (2) and substitute:

(1) Section 29(2)(b)—Delete paragraph (b) and substitute:

(b) 1 will be an officer of the teaching service selected by the Minister from a panel of officers elected by officers of the teaching service in accordance with the regulations; and

(2) Section 29(3) and (4)—Delete subsections (3) and (4)

Again, I do not intend to repeat the argument. We have had the debate twice. The first amendment was the test case. The second one maybe gave the minister a good feeling because he was able to divide for the second time. If he wants to behave in a puerile fashion, and divide on seven occasions, that is a judgement call for him. I must say, though, in my experience in this chamber after most members have had a vote, or maybe two votes as a test case, they generally accept that that is the case for the consequential amendments and do not divide the committee on every occasion; but, if the minister wants to play that game, that is the minister's game and he can play it. I do not intend to delay the chamber any longer.

The committee divided on the motion:

Majority of 2 for the ayes.

Motion thus carried.

Amendment No. 4:

The Hon. R.P. WORTLEY: I move:

That the Legislative Council do not insist on its amendment.

This is the first of three amendments, amendments Nos 5 and 6 will follow. The government opposes this amendment. The Teachers Appeal Board hears appeal matters from TAFE SA lecturers, lecturers' assistants and educational managers, as well as school teachers. These matters include decisions regarding termination, retrenchment, transfer, retirement or disciplinary actions, such as reprimand, imposition of fines, reductions of classifications and suspension of duties.

This amendment restores the balance built into the nomination process which currently gives the minister, as the employer's representative, the power to select nominees to provide a management perspective separate from a group of nominees elected by staff who provide a staff perspective. The amendment proposes that there is a group of staff elected by staff in accordance with regulations, and that the regulations that provide for this election process must be fair, inclusive and impartial for all staff.

There is a significant administrative burden, duplication and cost of an election to form the groups of staff for the purposes of the Teachers Appeal Board. The difference in this case is that the additional election process will need to be undertaken by both TAFE SA and the Department for Education and Child Development (DECD), or outsourced to a body such as the Electoral Commission. All the costs and resources required in each step of this election process are currently undertaken by the AEU as the organisation representing the interests of education staff both in TAFE SA and in schools.

These costs will need to be taken on by the government, both in the DECD and in TAFE SA, if this amendment is passed. This will create not only a new process to replace ones that currently work well but also unnecessary duplication across government. There are 1,665 TAFE officers and around 20,000 school teachers located across South Australia who will need access to an election process.

I have been provided with a rough estimate of around $4,000 to $5,000 as the cost for conducting the election for TAFE based on a simple first-past-the post postal election system of around 1,600 staff. This would be in addition to the cost of running the estimated cost of $40,000 for an election for school teachers in the Department for Education and Child Development because they would need a separate process.

The actual cost may even be higher depending on the complexity of the election process. This amendment is about changing an existing process where there is no evidence to suggest that it is not working well and replacing it with a different process without any consultation and involvement with the staff. For these reasons, the government strongly opposes this amendment that changes the constitution of the Teachers Appeal Board.

The Hon. R.I. LUCAS: I move:

That the Legislative Council no longer insist on its amendment but makes the following amendment in lieu thereof:

Clause 10, page 5, lines 13 and 14 [clause 10(1)]—Delete subclause (1) and substitute:

(1) Section 45(2)(c)—delete 'on the nomination of the Institute of Teachers made' and substitute:

on nominations made in accordance with the regulations

In doing so, I say that this is a consequential amendment on three, or four, previous votes of the council.

The committee divided on the motion:

Majority of 1 for the ayes.

Motion thus carried.

Amendment No. 5.

The Hon. R.P. WORTLEY: I move:

That the Legislative Council do not insist on its amendment.

As with the previous amendment, the cost of running this election will be quite high. There is an old saying, 'If it's not broken, why fix it?' This is just another attempt at union bashing. The unions themselves have negotiated these positions over many decades, and the thought of just wiping them off in a brief session of the Legislative Council is really unprecedented. I ask members here not to support this amendment.

The Hon. R.I. LUCAS: I move:

That the Legislative Council no longer insist on its amendment but makes the following amendment in lieu thereof:

Clause 10, page 5, lines 16 to 20 [clause 10(2), inserted paragraphs (d) and (e)]—

Delete paragraphs (d) and (e) and substitute:

(d) the members of a panel of prescribed employees appointed by the Governor on the nomination of the Minister; and

(e) the members of a panel of prescribed employees appointed by the Governor on nominations made in accordance with the regulations after elections have been held in accordance with the regulations.

This is a consequential amendment on the previous debates.

The committee divided on the motion:

Majority of 1 for the ayes.

Motion thus carried.

Amendment No. 6:

The Hon. R.P. WORTLEY: We are wearing them down, Mr Chairman. I move:

That the Legislative Council do not insist on its amendment.

The reason is as before: the costs of running these elections and the fact that teachers have negotiated these positions and representations over many decades. It also sets a precedent because you will have to question now the role of all unions on boards and training industry commissions and boards, and also the role of business. I think it is something that has not really been considered properly. It might be a big joke; obviously it is a joke to everyone who is supporting these amendments but the reality is that this will send a lot of concerns throughout both unions and business on how easy it is to wipe off representations which take decades to negotiate. It is just a classic case of union bashing.

The Hon. R.I. LUCAS: The minister has worn me down. I am going to support him on this one. I do not think he has read his briefing notes because he spoke off the cuff and he does not realise that it does not actually relate to this particular provision. Both of us are supporting the same provision, so it is a bit embarrassing. We are going to support the minister on this particular one but it has nothing to do with what he just said.

Motion carried.

Members interjecting:

The Hon. R.P. WORTLEY: It might be funny to those in the opposition, so easily wiping off what unions have fought for for so many years, and it is a clear indication of what unions could expect if there was ever a Liberal government in this state.

Amendment No. 7:

The Hon. R.P. WORTLEY: Here we go. I move:

That the Legislative Council do not insist on its amendment.

This amendment removes the reference to the Australian Education Union, referred to in the legislation as the Institute of Teachers in section 53 of the Education Act 1972 which deals with the committee established to hear appeals in respect of appointments to promotional level positions. By removing references to the AEU (or the Institute of Teachers, as referred to in the act), parliament is undermining the role of the unions that represent a significant number of staff in both TAFE SA and government schools. This amendment is consequential to the previous amendments deleting reference to the AEU and is opposed for the same reasons. I seek the support of the committee to oppose this amendment.

The Hon. R.I. LUCAS: The Liberal Party, and I assume the majority of members, will be insisting on this amendment. It is part of a package which has been voted on five or six occasions already. I do not propose to extend the debate.

The committee divided on the motion:

Majority of 1 for the noes.

Motion thus negatived.