South Australian Employment Tribunal Bill

Second Reading

Adjourned debate on second reading.

(Continued from 28 October 2014.)

The Hon. T.A. FRANKS (12:12): I rise to indicate that the Greens will be supporting this bill. We did have some concerns about the lack of detail and some of the finer points of detail to be fleshed out but we accept in good spirit that this is a positive way forward and obviously sits as a companion to the Return to Work Bill that we have just discussed. We certainly did not having any representations opposing this employment tribunal.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (12:13): If there are no further contributions then I rise to close the debate. I would like to thank honourable members who have contributed and look forward to the speedy passage of the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.I. LUCAS: To use a metaphor, a lot of water has flowed under the bridge since I last spoke at the second reading. We have had a long and extensive debate in the companion bill, the Return to Work Bill, where a number of the issues that are canvassed by this bill were comprehensively covered.

I did want to summarise our position here for the record in terms of the employment tribunal bill, even though I have made some of these comments in the Return to Work Bill; that is, that the Liberal Party believes that any fundamental reform of the workers compensation system has to include, or should have included, reform in this particular area. As I outlined earlier this morning, it has been confirmed to us that in the early discussions from the government with stakeholders on a confidential basis, the discussions were that the Workers Compensation Tribunal would not continue under the guise of the employment tribunal but would be incorporated as a part of the SACAT model.

Clearly, without having been privy to all of those discussions, whilst it was being supported by significant players within the government (if I can use that phrase), it was opposed by even more significant players in the government; that is, Premier Weatherill was a very strong opponent of it, given his own personal background. The legal fraternity were strong opponents. I did have a discussion with Morry Bailes, President of the Law Society, this morning and whilst he said he would not describe their opposition as vehement, or words along those lines, he said they nevertheless, as their original submission to us had indicated, had a firm policy position in relation to a continuation of an employment tribunal.

He was honest enough to say there were some within the Law Society who had much stronger views than others, and I guess that is entirely possible given there are some people who practice in the jurisdiction and there are others within the Law Society who do not practice in the jurisdiction and it is quite possible that those who do practice in the jurisdiction have much stronger views than those who do not. Nevertheless, the policy position, as outlined in their paper to all of us, made it quite clear.

I am assuming, not that we ever received a submission from a number of the unions, but we are assuming that the other significant opponents of a transfer into SACAT and supporters of the status quo were the unions and in particular the left-leaning unions within South Australia. So, those who were wanting to support the employment tribunal essentially amounted to the legal fraternity, those practising within the jurisdiction, many of the unions, but in particular the left-leaning unions, and Premier Weatherill, as I said earlier, whose influence cannot be underestimated in any debate within the Labor caucus.

On the other side, I think virtually every employer group that we spoke to supported a transfer to SACAT, even those who said, 'Look, we're not going to support this becoming a point of contention between the opposition and the government so that it would prevent the passage of the WorkCover reform legislation.' As I indicated last night, Business SA was one of those groups who had adopted that particular position. Nevertheless, with a blank canvas, all of the employer groups that we spoke to either supported strongly, or to lesser degrees, the position of SACAT being the appropriate agency.

As I said, as recently as a couple of weeks ago, the member for Dunstan and myself met with around about 16 or 18 of those where we confirmed the position around the table. We went around the table and each of the representatives—to be fair, with the exception of one, who did indicate that, as a new CEO, he was not aware of what the position of their employer organisation was on the issue. The employer organisations have a very strong view, and certainly some of the legal fraternity who represent the employer organisations also have a very strong view, that one of the problems at the moment is the continuation of the Workers Compensation Tribunal. As I said, there are at least some very significant players within the government who have a view that at some stage a move to SACAT would make sense.

One of the significant problems was whether or not it could be achieved within the time frame we were talking about, which was July 2015. As I indicated, I had discussions with Judge Parker (I will not go over them again) where, essentially, we were convinced that that was not possible, and we therefore moved the compromise amendments for July 2018.

The reason all the employer groups in South Australia are strongly opposed to the continuation of the status quo here is that they see this as a factor which is adding to the cost structure of workers compensation in this state. They also have the view that because the Workers Compensation Tribunal, by and large, is just continuing as the employment tribunal—it is virtually the same thing with another name—this will continue to be a factor which will serve to drive up costs through the decisions it takes in that jurisdiction.

The employer groups are strongly of the view that the Labor government, having been in power for 12 years or more, has ensured that fellow travellers—people with a like mind and some with even stronger connections to the Labor Party and Labor government—have been appointed to the Workers Compensation Tribunal. Mr Chairman, with your union background I am sure that you will be very familiar with the names I read through from the Workers Compensation Tribunal, and, for some of them, their connection with the Labor movement. To start with there is His Honour President Judge W.D. Jennings, then His Honour Deputy President Judge J.P. McCusker, His Honour Deputy President Judge B.P. Gilchrist, His Honour Deputy President Judge P.D. Hannon, Her Honour Deputy President Judge L.J. Farrell, and Deputy President S.M. Lieschke.

Mr Chairman, as you and many others would know, Deputy President S.M. Lieschke is a former legal partner of Jay Weatherill, practising in the jurisdiction. Her Honour Deputy President Judge L.J. Farrell is the sister of the godfather of the Labor right. The Hon. Tung Ngo is here, and he bowed his head as I mentioned the name Farrell.

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

The Hon. R.I. LUCAS: He bowed again, and that is appropriate. As a loyal member of the right faction it is appropriate that the Hon. Tung Ngo would bow his head whenever the name Farrell is mentioned. This is the sister of the godfather, this is Deputy President Judge L.J. (Leonie) Farrell. Of course, His Honour Deputy President Judge P.D. Hannon comes from a very prominent Labor-leaning background in terms of the legal firm he represented beforehand.

It is the prerogative of governments to appoint who they wish but in this jurisdiction and the related Industrial Relations Court and Industrial Relation Commission appointments, in some of those areas, there has been an endeavour, in legislation in the past, to try to ensure they are appointments of people from a union background and an employer background. That has been subverted, Mr Chairman. Indeed, as a former industrial relations minister yourself for a brief period you were subjected to the need to consider whether or not you were going to make an appointment in this particular jurisdiction, so you would be well familiar, both as a minister and as an industrial relations advocate for the unions beforehand, of the jurisdiction.

The union movement, the Labor left and the Labor government are very comfortable with the people who have been appointed to the Workers Compensation Tribunal, they are very comfortable with the people who are continuing in the employment tribunal. That is why the business community is so up in arms about the continuation of the Workers Compensation Tribunal under the guise of the employment tribunal. They are saying to us that if you want to have genuine reform you have to be prepared to ensure that you have a balanced group on what is going to be a key body that will make a number of decisions, which will either drive up costs or keep an appropriate lid on costs in terms of the jurisdiction, and interpret the law.

Let me put it this way: the legislation in the past in some of these areas has sought, for an obvious reason, to have people from an employer background and an employee background relatively equally balanced, and the reason that was done was to try to ensure a perception of fairness within this whole system. That is why previous parliaments and previous governments and oppositions have supported that general principle. That is a principle which I think is a reasonable principle in my view, and certainly the overwhelming number of employer associations in South Australia to whom we have spoken do not believe that the current line-up of the Workers Compensation Tribunal and the proposed line-up of the employment tribunal are going to reflect that particular perspective.

I hope it is wrong, but those who are practising in this jurisdiction are saying to me that the rumours are rife that the Weatherill Labor government is looking to appoint the Premier's former chief of staff, Simon Blewett, to a position in this jurisdiction. I hope those rumours are wrong. No-one has been able to present any evidence, obviously, because until it happens, or if it happens, it is rumour and innuendo amongst those who practise in this jurisdiction.

I understand that two names are being discussed and one is Simon Blewett. For obvious reasons, there would be a head nod, not necessarily from the Hon. Tung Ngo but from those within the Labor left faction and from Premier Weatherill in that area. The other argument is coming from the employer groups on the basis of the arguments I put before, that a person who has been very active in one of the business associations ought to be there as someone who has come from an employer background into this broader jurisdiction of the court, the commission and the Workers Compensation Tribunal.

The CHAIR: Why, Mr Lucas, if you are naming Simon Blewett through rumour and putting his name on Hansard, when you go into the employer you will not mention his name?

The Hon. R.I. LUCAS: Mr Chairman, I had not realised this was question time.

The CHAIR: I just think it is inappropriate that you mention someone's name in this forum in relation to a job on the employment tribunal.

The Hon. R.I. LUCAS: Mr Chairman, if you would like to participate in the debate, can I invite you to resign your position as President, take a lower salary, go on to the back bench and you can indicate whoever you wish as a potential appointment. In the absence of you doing that, I thank you for your kind invitation, but I respectfully decline. If you want to participate, there are options available to you.

The position, in summary, is that business associations are very concerned at the current operations of the tribunal and most concerned at the potential for the future operations of the tribunal. As I said, the dilemma a number of the business associations had in relation to their attitude to the employment tribunal was that the government had said to them, 'Look, if you adopt the position that the Liberal Party is talking about—that is, SACAT—there is a delicate balance in all of this, and that delicate balance is the unions and the lawyers and Premier Weatherill and other key players want to see the Workers Compensation Tribunal or the employment tribunal continuing, then you will jeopardise the workers compensation scheme reform package going through.'

We think that was a load of nonsense because Premier Weatherill and the government could not afford for this package to flounder on something as relatively insignificant, in terms of the public debate, as the issue of whether or not SACAT would take over responsibility in 3¾ years' time, but that position did influence a number of the business groups. Business SA was one of those and there were others, I suspect, as well who did have that influence and they represented those views to crossbenchers and to members of the Liberal Party as well in relation to this.

It did not ultimately divert us from what we believe was right in relation to this. Although we compromised on the date, having listened to Judge Parker, we nevertheless did maintain the position that it was appropriate to transfer the jurisdictional responsibility at some stage in 3¾ years' time. For those reasons business groups and the Liberal Party are concerned about the current operation of the Workers Compensation Tribunal and, in essence, the proposed operation of the Employment Tribunal, which we are debating here, for the reasons that we have outlined.

We accept that through the changed position of the Hon. Mr Darley he does not accept the argument that the Liberal Party and business groups by and large have put and he has accepted, as he put on the record last night, principally the advice of the Law Society and the Australian Lawyers Alliance which, as I have indicated, is the position being strongly supported by the left unions and Premier Weatherill in the Labor government. For those reasons we will not be delaying, through a detailed critique of each of the clauses, the committee stage. We have outlined our general position through my contribution at clause 1. We accept that the battle has been won and lost in relation to the SACAT employment tribunal issue and we will not unduly delay the consideration of the committee stage of the bill.

Clause passed.

Clauses 2 to 42 passed.

Clause 43.

The Hon. I.K. HUNTER: I move:

Amendment No 1 [SusEnvCons–1]—

Page 24, line 11—Delete 'special circumstances' and substitute 'good reasons'

Amendment No 2 [SusEnvCons–1]—

Page 24, line 15—Delete 'special circumstances' and substitute 'good reasons'

Amendment No 3 [SusEnvCons–1]—

Page 24, line 17—Delete 'circumstances' and substitute 'reasons'

These amendments revisit the discussion we had in a previous bill. This amendment provides that if a compulsory conciliation conference extends over the mandated six-week period, good reasons must be established to justify an extension of time rather than special circumstances. It addresses the concerns that the threshold to justify an extension of time is too high. This explanation relates to all the amendments standing in my name.

Amendments carried; clause as amended passed.

Clause 44 to 91 passed.

Clause 92.

The Hon. I.K. HUNTER: I move:

Amendment No 4 [SusEnvCons–1]—

Page 42, line 4—After 'Tribunal' insert 'after consultation with the Minister'

This amendment requires the development of the rules of the tribunal to occur in consultation with the minister.

Amendment carried; clause as amended passed.

Clause 93 passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (12:34): I move:

That this bill be now read a third time.

Bill read a third time and passed.