Bills

Budget Measures Bill 2014

Committee Stage

Members interjecting:

The CHAIR: Order! Go through the Chair, please.

The Hon. S.G. Wade: Is she allowed to attack him like that?

The CHAIR: I do not think it is a matter of one attacking the other. They have become involved in a debate which does not need to be undertaken. Minister.

The Hon. G.E. GAGO: Thank you for your direction, sir.

In committee.

Clause 1.

The Hon. G.E. GAGO: So that everyone is aware of how I intend to proceed, I have received some answers to questions asked by the Hon. Tammy Franks during her second reading contribution, and I thought to use this time on clause 1 to read the answers to those questions onto the record. Then I intend to adjourn the debate for further consideration.

Regarding the question asked by the Hon. Tammy Franks as to why seek to subvert the High Court decision by retrospectively altering employees' longstanding entitlements to long service leave, I am advised that the High Court decision on 29 January 2012 was about the appointment basis of teachers. It did not deal with long service leave or other conditions of employment.

The High Court remitted the matter to the Industrial Relations Court for further consideration. There has been no subsequent hearing in the court. The effect of the High Court ruling is currently the subject matter of litigation before the Supreme Court, and it is inappropriate to discuss the details of matters that are subject to this litigation as to do so could possibly prejudice the state's position.

A question was asked regarding why differentiate between permanent and non-permanent teachers, as they are both classified as officers of teaching. I am advised that permanent schoolteachers, in practice, do not have access to a two-year rule. Any comparison between temporary schoolteachers and permanent schoolteachers in South Australia in practical terms is inappropriate.

This is because the nature of the employment of permanent schoolteachers is such that it does not come to an end in the ways contemplated by section 22 of the Education Act. In practice, no permanent teacher has received the benefit of the two-year rule, which would only apply if the government retrenched teachers. This has not happened in the life of the current act. The more appropriate comparison is with temporary public servants, and they do not have the benefit of a provision such as section 22.

In terms of a more detailed explanation, permanent teachers do not in practice receive access to the two-year rule. Section 22(2) of the act provides access to the two-year rule if service is interrupted otherwise than by resignation or dismissal. If a permanent teacher ends their employment by resignation, their long service leave accrued entitlement is then immediately paid out. If subsequent employment is gained, the long service leave commences anew. If a temporary teacher does not resign, their employment ends by virtue of the agreed end date of the contract, that is, otherwise than by resignation or dismissal.

For the two-year rule to apply to permanent teachers, they would need to be retrenched or made redundant, that is otherwise than by resignation or dismissal. That has not happened since the inception of the act, since December 1962. Retrenchment did appear in the Great Depression, and this is referred to in the second reading speech of 1972. The practical application of the act means that temporary teachers are currently in a more advantageous position than permanent teachers. A two-year rule would increase that advantage.

Question 3: why equate these members of the teaching force with other public sector employees? I am advised that the amendment aims to bring the long service leave entitlements of temporary teachers into line with other Public Service employees, such as nurses and public servants. Preschool teachers have the same long service leave entitlements as public servants. They do not have access to a two-year rule.

SA teachers in schools are under the Education Act and preschool teachers are under the Children's Services Act. School teachers would have access to an allowable interruption of up to two years while preschool teachers have access to the public sector standard of an allowable interruption of three months. A temporary relieving teacher may work in a school one day and then in a preschool the next. They would receive the same pay under the same enterprise agreement but would be subject to different long service leave provisions.

Interstate teachers receive the equivalent or less of the public sector standard. They do not have access to an allowable break in service of two years. For example, temporary teachers in New South Wales, the largest employer of teachers, receive an allowable break in service of two months plus vacation. No private school teacher receives an allowable break in service of two years. A temporary relieving teacher may work in a public school one day and in a private school the next but would be subject to different long service leave provisions.

Private school teachers receive an allowable break of two months with no recognition of vacations. Temporary teachers work in a similar manner to casual nurses and other casual employees—that is, they undertake relief work as required—yet temporary teachers would receive an allowable interruption in service of up to two years while temporary nurses receive access up to three months.

Enactment of the proposed legislation would leave temporary teachers in a better position than the public sector standard of three months. This is because the department will continue to apply its policy of three months plus vacation periods, which is more advantageous than the public sector standard. The policy is in recognition of the unique nature of a working school year. School teachers work side by side with School Services Officers and Aboriginal education workers who have access to the public sector standard of three months. All are under the same enterprise agreement.

A further question was: what of those current employees whose long service leave entitlements would be reduced and possibly removed by this retrospective legislation? I am advised that the two-year rule has not been applied under successive governments. No teacher will receive a reduction in the long service leave and retention leave entitlements as stated on their payslip. No approved period of leave would be reduced. Temporary teachers have received the benefit of the three-month rule and, from 2003, the improved benefit of the three months plus vacation rule. In practical terms, the legislation confirms best practice.

The fifth question was: what information does the government have about the numbers of those particular teachers and other demographic data? I am advised that DECD annual report 2013 at page 159 states that under the Education Act, male employees are 5,638 (25 per cent) and female employees 17,651 (75 per cent); and under the Children's Services Act, male employees are 2 per cent and female employees 1,890 (98 per cent). The percentage of females under the Education Act is the same as that for public servants and much less than that for Children's Services Act.

As the Public Sector Act and the Children's Services Act are subject to a three-month rule, it can be concluded that the female temporary teachers under the Education Act currently receive the better long service provision of the three-month plus vacation rule. In fact, temporary female teachers under the Education Act also currently receive a better arrangement than female non-teachers, for example, school services officers, under the Education Act. Female teachers under the Education Act receive a better long service leave rule than female teachers under the Children's Services Act.

Progress reported; committee to sit again.