Statutes Amendment (South Australian Employment Tribunal) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 22 February 2024.)

The Hon. H.M. GIROLAMO (16:10): From the outset, I indicate that the opposition is in full support of this bill. We thank the Attorney for a briefing on this bill. It has been some 10 years since the South Australian Employment Tribunal (SAET) was established. It provides dispute resolution in a timely and efficient manner, with over 6,000 applications filed in the last financial year. Despite SAET's large and at times very complex case load, resolution time frames are significantly faster than in many other jurisdictions.

Ten years is a sufficient amount of time to be able to have the opportunity to assess the processes and the functions and to ensure that it is reviewed and to look for improvements. Improvements are always welcomed by the opposition when it comes to government departments and areas such as SAET as well. This bill very much is the opportunity to be able to tidy up some areas and to provide more clarity.

We on this side recognise the need for the tribunal to be an efficient and effective mechanism for resolving and determining such disputes in South Australia. Many participants in SAET matters look to SAET as a model of best practice of an industrial tribunal. As expected, its high-quality consultation processes and the commissioners were particularly praised during our consultation for this bill.

The opposition also received correspondence from the Law Society, and they confirm that SAET does already efficiently dispose of the litigation before it, but it hoped that the amendments before us in the chamber will assist and improve on the processes as well, so it is very much welcomed by the Law Society. The Law Society also understands that the tribunal is one of the more efficient jurisdictions dealing with civil matters in South Australia. These amendments only improve on that, and that is why we are very supportive of them.

In regard to the specific amendments, part 2 of the bill amends the Equal Opportunity Act 1984. This amendment provides that employment-related discrimination and victimisation complaints will be heard in SAET rather than SACAT. This is something the opposition is supportive of. Part 3 of the bill amends the Fair Work Act 1994. This amendment addresses which powers are exercised by which part of SAET to address issues raised over which powers under the act are now exercised by SAET constituted as the South Australian Employment Court and which are exercised by SAET constituted as an industrial relations commission, therefore creating more clarity and ensuring that it is very clear within the legislation.

Part 4 and part 6 of the bill amend the Magistrates Court Act 1991 and the Work Health and Safety Act 2012. These amendments increase the monetary threshold under which a criminal offence can be dealt with by a deputy president magistrate in SAET to $1.5 million (changed from $300,000), something that we are also in support of.

Finally, part 5 of the bill amends the South Australian Employment Tribunal Act 2014. These amendments clarify the assignment of matters between SAET sitting as a court or as an industrial relations commission. In summary, the opposition is supportive of the passage of this bill and thank the Attorney for bringing it to the chamber.

The Hon. T.A. FRANKS (16:14): I rise on behalf of the Greens to speak in support of the Statutes Amendment (South Australian Employment Tribunal) Bill. SAET is the independent umpire for workplace disputes. Timely court proceedings are critically important where maintaining workplace relationships and contracts is in question.

With each case, SAET aims to reach a fair and just outcome as quickly as possible, either through agreement at a conference, conciliation or mediation, or by a decision at a hearing, acting with little formality and technicality to minimise costs to parties involved. It is essential that the tribunal remains an efficient and effective mechanism for resolving and determining such workplace disputes in our state.

Between 5,500 and 6,000 applications are lodged with the tribunal each year, surpassing the total number of originating civil proceedings lodged in the Supreme Court and District Court combined. SAET is dealing with one of the largest case loads in the state while also maintaining resolution time frames faster than other civil jurisdictions.

The purpose of this amendment bill is to fix some of the technical and procedural issues which arise from the South Australian Employment Tribunal Act 2014 and other related legislation. Specifically, SAET itself has identified issues regarding conciliation time frames, prohibition on mandatory injunctions against the Crown as an employer, monetary thresholds under the Work Health and Safety Act and monetary orders made by the tribunal.

While it is clear that SAET is quite efficient—in their most recent annual report, SAET reported that, aside from a 19 per cent increase in applications received in the Return to Work Act jurisdiction, they had achieved a clearance rate of 99 per cent—the governing legislation needs to reflect the reality of tribunal hearings. Conciliation time frames concluding in six weeks are not realistic due to external influences such as doctors' reports, and it is no use to set a time frame which, nine times out of 10, will be unable to be met. Amending the time frame to 10 weeks will help manage resourcing and set better targets and outcomes for all parties.

The bill also amends section 51 of the SAET Act to allow for legal professional privilege to cover communications between non legally qualified representatives and members in proceedings. Given the heavy involvement of employees and industrial associations, including business associations representing their members in industrial proceedings, this amendment is appropriate to meet broader privilege requirements for third parties under the Australian Solicitors' Conduct Rules.

SAET's vision is to be a leading employment tribunal which promotes the best principles of decision-making and resolves disputes fairly, efficiently and transparently. One of SAET's strategic objectives is to be a 'modern, innovative tribunal with straightforward processes and contemporary systems' and this legislation will be an appropriate step in ensuring that they continue to perform as well as they have.

I note that the Law Society, in their submission to this bill, have flagged concerns; I imagine they will be raised in clause 1 of the committee stage by either the Greens or other members of this place. With that, I commend the bill.

The Hon. S.L. GAME (16:17): This bill aims to strengthen the South Australian Employment Tribunal's role and effectiveness in resolving workplace disputes in South Australia. The bill proposes changes to various acts impacting different aspects of employment law and dispute resolution in South Australia. It addresses specific issues within the existing legal framework, such as providing clarity and consistency in various areas. I support the bill on the basis it will streamline processes and improve access to justice, making it easier and faster to resolve disputes.

The Hon. M. EL DANNAWI (16:18): I rise today to speak briefly in support of the Statutes Amendment (South Australian Employment Tribunal) Bill. In 2022, the Labor government made an election commitment to undertake a review of the practices and jurisdiction of the South Australian Employment Tribunal. In delivering this commitment, the Attorney-General's Department held public consultation with legal groups, unions and the business community. This bill is the end result of this consultation and brings changes that reflect the practical experience of workers, employers, representatives and members of the tribunal itself.

While the review found that, overall, the tribunal is effectively carrying out its function as South Australia's one-stop shop for industrial disputes, stakeholders identified a number of technical and procedural issues. Addressing these issues would improve the efficiency of the tribunal and the experience of litigants, and that is exactly what this bill is designed to do.

Workers and employers in this state deserve an employment tribunal that is functioning as well as it can be. The tribunal already provides high-quality dispute resolution in an efficient manner, with a time frame that is much faster than other jurisdictions. Though not a major reform, this bill will make a difference for those people frequently involved in our industrial relations and workers compensation system, but there are a number of substantive changes that will make a real difference in industrial relations matters. Among many changes are the following.

The bill clarifies that employment-related discrimination and victimisation complaints are to be heard at SAET rather than SACAT. It provides for the recognition of confidentiality of communication between non legally qualified representatives and members in proceedings before SAET. This means that when a union official represents the members, internal documents will be treated confidentially in the same way as for lawyers.

The bill explicitly clarifies which powers are exercised by SAET as the employment court and which are exercised by SAET as the industrial relations commission. Following on from this, the bill allows commissioners to sit as members of the full bench when the tribunal is acting as an industrial relations commission. This recognises the valuable contribution and practical experience of the commissioners appointed to the tribunal and allows their expertise to be appropriately and effectively drawn upon in industrial relations matters.

The bill ensures that the Crown will be subject to the same principles and remedies as any other employer in the industrial relations system when it comes to industrial laws and entitlements. The bill removes loopholes that have been used by the previous government to avoid complying with enterprise agreements negotiated with the public sector's unions.

The bill also extends a mandatory time frame for compulsory conciliation conferences in workers compensation disputes. The time frame will be extended from six weeks to 10 weeks. This is a necessary change, considering the delays that are involved in obtaining specialist medical advice and reports. As the Attorney-General said in his second reading explanation, the tribunal itself has advised that in reality the time frame for conciliation is most often closer to 12 weeks than it is to six.

The bill allows for SAET to expand the scope of issues in dispute where the tribunal is satisfied it is in the interests of justice that a question be determined as part of the proceedings. This flexibility is essential when addressing workers compensation claims, where a single injury may result in any number of related claims that arise over time and which can all potentially be traced to the initial injury. This change is in the best interests of the function of SAET and of workers.

It is no secret that the process of litigation can be painful for the injured party. This change will mean that parties can move forward once a decision has been reached without the looming threat of further disputes that ought to have been dealt with in the initial claim.

These are only some of the technical changes that will be progressed with this bill. Complex systems require regular maintenance, and it is important that we remain in conversation with those who are engaging with the tribunal in order to maintain a system that promotes consistency, flexibility, efficiency and, most importantly, fairness, with this bill resulting from exactly that sort of productive discussion. I commend the bill to the chamber.

Debate adjourned on motion of Hon. I.K. Hunter.