Legislative Council Fifty-Third Parliament, Second Session (53-2) 53 2 Parliament of South Australia Legislative Council published Bills South Australian Employment Tribunal (Miscellaneous) Amendment Bill South Australian Employment Tribunal (Miscellaneous) Amendment Bill South Australian Employment Tribunal (Miscellaneous) Amendment Bill Second Reading Second Reading The Hon. P. MALINAUSKAS Legislative Council Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (15:44): I move: That this bill be now read a second time. I seek leave to have the second reading and explanation of clauses inserted in Hansard without my reading it. Leave granted. Today I am introducing the South Australian Employment Tribunal (Miscellaneous) Amendment Bill 2017 (the Bill). The Bill is required primarily to correct omissions from the Statutes Amendment (South Australian Employment Tribunal) Act 2016 (the Amendment Act) and to support the jurisdictional expansion of the South Australian Employment Tribunal (SAET). The Amendment Act was given Royal Assent on 8 December 2016 and remains uncommenced. The Amendment Act is currently proposed by the Government to commence on 1 July 2017. It is intended that the Bill, if passed by Parliament, will commence immediately after the commencement of the Amendment Act. SAET was established by the South Australian Employment Tribunal Act 2014 (the SAET Act). SAET commenced operations on 1 July 2015 with jurisdiction over workers compensation disputes under the Return to Work Act 2014. SAET was established on the premise that the collective industrial relations skills and experience of SAET's members and administration would in the future be utilised for resolving other employment-related disputes. The aim is that SAET will, as much as possible, be a one-stop-shop for resolving disputes between employers and employees. On its commencement, the Amendment Act will amend the SAET Act and a number of other Acts to confer additional employment-related jurisdiction on SAET in addition to its existing jurisdiction under the Return to Work Act 2014, namely: jurisdiction over dust disease matters under the Dust Diseases Act 2005; the jurisdictions of the Industrial Relations Court of South Australia and of the Industrial Relations Commission of South Australia under the Construction Industry Long Service Leave Act 1987, Fair Work Act 1994, Fire and Emergency Services Act 2005, Industrial Referral Agreements Act 1986, Long Service Leave Act 1987, Public Sector Act 2009, Training and Skills Development Act 2008 and the Work Health and Safety Act 2012; the jurisdiction of the Equal Opportunity Tribunal under the Equal Opportunity Act 1984; the jurisdictions of the Teachers Appeal Board and teachers' classification review panels under the Education Act 1972 and Technical and Further Education Act 1975; part of the jurisdiction of the Police Review Tribunal under the Police Act 1998; the jurisdiction of the Public Sector Grievance Review Commission under the Public Sector Act 2009; criminal jurisdiction in respect of summary and minor indictable offences that are currently 'industrial offences' under the Summary Procedure Act 1921; and common law civil jurisdiction in respect of contractual disputes between employer and employee and common law claims for damages under Part 5 of the Return to Work Act 2014. Since the passage of the Amendment Act, a need to amend section 45 of SAET Act has arisen. In brief, the current effect of section 45 is that SAET cannot proceed to hear any matter unless a pre-hearing conference has first been held before a Presidential member. The proposed amendment of section 45 will be beneficial to parties and to SAET. SAET proposes that, on the commencement of the Amendment Act, a SAET Commissioner or Presidential member undertaking a conciliation, mediation or arbitration (ADR) process with parties that proves to be unsuccessful would be able with the parties' consent to move immediately into a contested hearing of the matter to arrive at a binding determination of the dispute. That is, it is not anticipated that the proceedings would be adjourned for the parties to return at a later time for the contested hearing of the matter. At this time, it is proposed that this process would mainly occur in the case of reviews under the Public Sector Act 2009 and employment disputes currently heard in the Industrial Relations Commission under the Fair Work Act 1994. As it currently stands, section 45 would not allow an unsuccessful ADR process to proceed immediately into a contested hearing, and a pre-hearing conference would first have to be held before a Presidential member. It is likely to be nearly always the case that the pre-hearing conference would not be able to be held immediately and the parties will need to return to SAET at a later time to resume the proceedings. The Bill proposes to amend section 45 so that the requirement for a mandatory pre-hearing conference before a Presidential member of SAET will only apply in the case of proceedings under the Return to Work Act 2014 and in any other prescribed class of proceedings. The latter would have the advantage of allowing the making of Regulations to require pre-hearing conferences under other legislative schemes as appropriate. The amendment of section 45 will produce benefits to SAET and the community in those cases where it is appropriate to move immediately from an unsuccessful ADR process to a hearing. The Bill makes a small number of other amendments to the Education Act 1972, the Equal Opportunity Act 1984, the Technical and Further Education Act 1975 and the Amendment Act which were overlooked during the original drafting of the Amendment Act. The amendment of s54(2) of the Education Act 1972 will ensure that the President of SAET can choose to list Supplementary Panel Members for all review proceedings under that Act. This is achieved by changing the word 'Division' to 'Act' in section 54(2). New section 54 will be inserted into the Education Acton commencement of section 89 of the Amendment Act. Section 54 concerns the use of Supplementary Panel Members, should the President of SAET so determine, when SAET is to hear proceedings under the Education Act. Similar to what is currently the case, Supplementary Panel Members are appointed from panels of Education Department employees and of teachers nominated by the Australian Education Union to assist SAET in proceedings where their particular expertise may be useful. Section 54(2) has been inadvertently drafted too narrowly and does not reflect the status quo. As drafted, section 54(2) would only apply to have the President elect that Supplementary Panel Members sit in review proceedings 'under this Division', i.e. proceedings under Division 8 of Part 3 of the Education Act, which is only concerned with appeals in respect of promotional level positions. Currently, under section 45(3) of the Education Act, the Teachers Appeal Board must sit with panel members for all proceedings under the Act. Proceedings that are not included in the current drafting of section 54(2) include retrenchment, transfer and retirement decisions under sections 16 and 17, disciplinary decisions under section 26, and other review rights that might be provided for under the Education Regulations 2012 from time to time. Currently, an appeal right is available to teachers under regulation 36 against decisions of Departmental officers acting in the course of their duties. If section 54(2) is not amended as proposed by this Bill, the President of SAET will not be able to elect to have Supplementary Panel Members sit with a SAET member to hear these other types of proceedings. This was not intended to be the result of the drafting of the Amendment Act. A further provision in the Bill would repeal section 105 of the Equal Opportunity Act 1984. This currently allows the Presiding Officer of the Equal Opportunity Tribunal (EOT) to make rules regulating the practice and procedure of the Tribunal. Section 105 will be redundant when SAET assumes the EOT's jurisdiction as the EOT will then be dissolved. The amendment of section 18A(2) of the Technical and Further Education Act 1975 corrects an error, in that the reference to 'this section' was intended to be a reference to 'this Division'. New section 18A will be inserted into the Technical and Further Education Acton commencement of section 139 of the Amendment Act. As is currently the case under section 17A of the Technical and Further Education Actin respect of the powers of the Teachers Appeal Board, section 18A was intended to have the effect that on the hearing of a review concerning the termination, retrenchment, transfer or retirement of a TAFE officer, SAET may revoke the relevant decision and reinstate the officer. To have the effect intended, section 18A(2) must be amended to replace the words 'this section' with 'this Division' so that the relevant phrase reads '… proceedings for the review of a determination or decision that has taken effect under this Division …'. Division here means Division 2 of Part 3 of the TAFE Act which contains, in sections 15A, 16 and 17, the relevant provisions to terminate, retrench, transfer or retire an officer. If section 18A(2) is not amended as intended by this Bill, SAET will not have the power to reinstate a TAFE officer should it revoke a decision on review. This was not intended to be the result of the drafting of the Amendment Act. The amendment of section 100(7)(b) of the Amendment Act reflects the intention that SAET be able to adopt any findings or determinations of the EOT in proceedings commenced prior to the commencement of the Amendment Act and that are transferred to SAET on commencement of the Amendment Act as part-heard proceedings. To achieve this intention, the second instance of the word 'Tribunal' ought to instead be 'SAET', as 'Tribunal' is defined by section 100(1) to mean the EOT. This amendment is required to resolve a typographical error. The amendment of section 142(2) of the Amendment Act is required to reflect the intention that the appointment of a person as a member of the Teachers Appeal Board (not 'the Tribunal', which is a reference to SAET) is terminated on the commencement of that subsection. The original intent of section 142(2) was that, on the commencement of that provision, the Teachers Appeal Board would be dissolved and also that the appointments of a person as a member of the Teachers Appeal Board would then come to an end. To achieve the latter, the word 'Tribunal' must be amended to 'Appeal Board' as 'Tribunal' is defined in section 142(1) to mean 'the South Australian Employment Tribunal'. This amendment is also required to resolve a typographical error. Serious consequences could result if these other amendments proposed in the Bill are not made, and would represent a change from the status quo. This includes that Supplementary Panel Members will not be available to sit for the full range of review proceedings under the Education Act 1972; that the power in section 18A(2) of the Technical and Further Education Act 1975 to reinstate an officer will not be able to be exercised as broadly as intended; and that the appointments of members of SAET may be at risk. I commend the Bill to Members. Explanation of Clauses Explanation of Clauses Part 1—Preliminary 1—Short title 2—Commencement 3—Amendment provisions These clauses are formal. Part 2—Amendment of South Australian Employment Tribunal Act 2014 4—Amendment of section 45—Pre-hearing conferences This clause amends section 45 to provide that the requirement to conduct pre-hearing conferences applies to proceedings under the Return to Work Act 2014 and other proceedings prescribed by regulation. Schedule 1—Related amendments Part 1—Amendment of Education Act 1972 1—Amendment of section 54—Appointment and selection of supplementary panel members for reviews This clause amends section 54 of the principal Act to substitute a reference to 'Division' with a reference to 'Act'. Part 2—Amendment of Equal Opportunity Act 1984 2—Repeal of section 105 This clause deletes section 105 of the principal Act. Part 3—Amendment of Technical and Further Education Act 1975 3—Amendment of section 18A—Review by SAET This clause substitutes a reference to 'section' with a reference to 'Division'. Part 4—Amendment of Statutes Amendment (South Australian Employment Tribunal) Act 2016 4—Amendment of section 100—Transitional provision This clause substitutes a reference to the Tribunal with a reference to SAET. 5—Amendment of section 142—Transitional provision This clause substitutes a reference to 'Tribunal' with a reference to 'Appeal Board'. Debate adjourned on motion of Hon. T.J. Stephens.