South Australian Employment Tribunal (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 18 September 2018.)

The Hon. K.J. MAHER (Leader of the Opposition) (15:53): I rise today to indicate general support for parts of this bill. The opposition understands the consequences of the High Court decision in Burns v Corbett and what that means in terms of federal diversity. We saw that in relation to the operation of SACAT, and we assisted, as an opposition, the speedy passage of a bill to resolve the problem, effectively, of having one of the participants in proceedings from interstate where it is of an administrative nature. We remedied that with SACAT, I think, if my memory serves me correctly, by, where that was the case, having it deemed to be heard by a magistrate.

Part of the bill before us deals with a similar thing, the Burns v Corbett High Court decision and what it means for the decisions of the South Australian Employment Tribunal and having, essentially, a fix for that. Where matters of federal diversity come into play, it is to have the tribunal sitting as the court, so that rather than administrative it is a judicial process. We agree and will be assisting with the passage of the bill in relation to that, which is important to make sure that that is fixed.

Another part of the bill is in relation to the insertion of a maximum amount of compensation of $20,000 that can be awarded by an industrial magistrate. We know that this formed part of a scheme previously before it was transferred for the industrial magistrate jurisdiction to hear. However, the bill allows the $20,000 limit to be exceeded by awarded compensation by basically referring it to a judge of the South Australian Employment Court, rather than being heard by an industrial magistrate. We think that would be unnecessarily cumbersome and have the effect, in essence, of clogging up the upper echelons of this jurisdiction.

We have not seen what evil it seeks to remedy, or what has been the outcry with the $20,000 limit not being there anymore. We will not be supporting that part of the bill, but we will certainly facilitate and support the part of the bill that deals with the issues of federal diversity.

The Hon. I. PNEVMATIKOS (15:57): I rise today to also speak about the South Australian Employment Tribunal (Miscellaneous) Amendment Bill 2018. The South Australian Employment Tribunal was designed to be an agile body, capable of broadening its responsibilities to meet future demands, and is primarily responsible for resolving various workplace-related disputes and issues relating to work-related injuries and employment and industrial disputes, as well as equal opportunity and dust diseases matters. It also acts to regulate industrial awards, agreements and registers, and hears work, health and safety-related prosecutions.

The first intention of this bill is to pre-emptively address a potential constitutional concern. This arose from a recent High Court decision in the matter of Burns v Corbett 2018. The court in that decision held that, under the Australian Constitution and the Commonwealth Judiciary Act 1903, only a Chapter III court could deal with a dispute that involved federal diversity, and the SAET, as with a number of tribunals in the state, were not regarded as Chapter III courts.

This dispute also applied to the jurisdiction of the SACAT, and similar amendments were introduced to overcome the jurisdictional issues that are now placed before us. More specifically, courts of the state are prevented from exercising federal judicial power in relation to matters, including disputes involving the commonwealth, disputes involving other states and disputes involving residents of different states.

The bill seeks to clarify the jurisdiction of criminal offences from the Work Health and Safety Act to ensure the South Australian Employment Tribunal has jurisdiction in relation to federal diversity matters. We support, in general terms, this component of the bill.

The second component of the bill is to reinstate the cap of $20,000 that existed under the Magistrate's Court for the maximum limit for an award for compensation. Anything above the cap would be referred to a judge, with the component of compensation to be reheard. The South Australian Employment Tribunal began hearing criminal proceedings on 1 July 2017. It has heard nine criminal proceedings. Of the nine, in only two proceedings were there awards of more than $20,000 against individual defendants.

One of those cases, Campbell v Jarrad MacGillivray Pty Ltd and Callan MacGillivray Pty Ltd, was in relation to a 17-year-old apprentice who was performing carpentry duties on site. At the time of the incident, the young worker was working near timber framework intended on comprising part of the eastern wall of a house. Temporary propping was not secured to the slab or the ground, leading to the worker being struck and killed by the falling section of the unsecured wall frame.

The worker was transported to hospital suffering head and brain injuries that unfortunately led to his death. He was a teen. In this case, there were two defendants, and $10,000 was awarded against each defendant to the two parents and three siblings of the deceased, amounting to $100,000.

The second case, Boland v BHP Billiton Olympic Dam, was in relation to a worker who had held his position of development jumbo drilling miner for over a decade. He was drilling a development face at the worksite and was killed when crushed by rocks that fell from the development face. It was determined that the defendant in this case failed to ensure, provide and maintain safe work procedures, which resulted in the worker's death. In this case, $20,000 was awarded to each of the spouse and three children of the deceased, amounting to an award of $80,000 in compensation.

Neither case is an abuse of the current structure. They were horrific tragedies and were compensated accordingly and appropriately. They do not make for good examples to highlight a need to implement a cap; in fact, the contrary. Furthermore, I ask that members of the council note that our state's industrial magistrates are also judicial officers. There is already a process in place to dispute decisions through a full bench appeal, namely, three deputy presidents and judges of the South Australian Employment Tribunal.

This component of the bill is an unnecessary amendment. It will only cause complexities and extend proceedings and waiting times for those who are seeking justice. This is why I am opposing this component of the bill. There should be no cap. The judges of the South Australian Employment Tribunal are more than competent to exercise the discretion wisely and intermittently, as they have to date.

The Hon. R.I. LUCAS (Treasurer) (16:02): I thank honourable members for their contributions to the debate, to the two members who have indicated support for one aspect of the legislation but opposition to another. I understand, from my advice, that other members in this chamber are supportive of the general position of the government in relation to the need for the legislation, based on advice that they have received, so I look forward to, I hope, favourable consideration during the committee stage and the third reading of the bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. T.A. FRANKS: Very briefly, the Greens indicate that, while we support the bill overall, we will be supporting the opposition's amendments.

The CHAIR: The Hon. Mr Maher, I understand from your second reading that you are opposing clause 4; there are no amendments coming.

The Hon. K.J. MAHER: No.

The Hon. C. BONAROS: I indicate that SA-Best will be opposing clause 4 of the bill.

The Hon. R.I. LUCAS: Mr Chairman, can I move that we report progress? Certainly, the advice I received was that a number of members had indicated support for the bill as it was. It is news to me that there is opposition to this particular aspect of the legislation. We were not aware of the position. The Labor Party is perfectly entitled to not advise that they are moving amendments to oppose various provisions.

The Hon. K.J. Maher: We have no amendment.

The Hon. R.I. LUCAS: No, but you understand the process.

Progress reported; committee to sit again.