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House of Assembly - Fifty-First Parliament, Second Session (51-2)
2008-05-08 Daily Xml
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TRAINING AND SKILLS DEVELOPMENT BILL

Committee Stage

In committee (resumed on motion).

Clause 67.

Mr PISONI: I need a little more clarification. Are you able to advise the committee on the situation that I described? Will a sole trader or a partner, or someone operating a business through a trust, be able to seek to be represented by somebody else for a fee? If the answer is no, why are private and public companies able to have paid staff representing them, but not independent contractors who do not operate under that structure for their own reasons? They may very well have their own reasons for deciding not to incorporate. Why does this legislation deliberately discriminate against them and weaken their ability to be heard in a fair manner?

The Hon. P. CAICA: It is somewhat of a slur on the SAIRC to suggest that people will in any way be disadvantaged or, indeed, as the honourable member mentioned, discriminated against. The point that I wish to make is that the provision built into this clause is that any single person has—if they satisfy the Industrial Relations Commission that he or she will be disadvantaged in the proceedings if he or she is not represented—the ability to be represented by a person.

Again, the point I would make to a very great extent is that that person cannot be—in the thrust of the legislation—a legal practitioner or a registered agent, and that person needs to act gratuitously. I know that there is a bit of concern, because Business SA, as you would be fully aware, provides a service for employers before the Industrial Relations Commission, and it charges a fee for providing the service—if that is not a contradiction in terms: fee and service.

If Business SA thinks it is being advantaged or disadvantaged beyond what it is, the unions might be able to provide support gratuitously—and the word is 'support'—because they are not there as advocates. They are there to provide support—and Business SA might like to reconsider its service arrangements to its members.

For the benefit of the member for Unley, I make the point that this is about resolving disputes, and the best way to do that is between the two individuals who are in dispute. That is always, I have found, the best way to resolve a dispute. The same applies to the Industrial Relations Commission.

I also reinforce the point that we need to keep in mind that, of over 35,000 training contracts, very few get to the dispute stage of the process. Through our proposed legislation, the SAIRC will be quick and inexpensive and it will bring about a swift resolution to the dispute that exists.

Mr PISONI: For further clarification, minister, if somebody is a member of an organisation, and that organisation does not charge specifically for the service of giving support to that person—whether it be an employer or an employee, or a trainee or a trainer—in this instance, are you saying that it is all right for someone to pay membership fees and then have a representative from that organisation support them in dispute resolution, providing there is not a fee for that particular service? Is that what you are saying?

The Hon. P. CAICA: No, I am not saying that. It is at the discretion of the SAIRC.

The CHAIR: Member for Unley, you have had three questions on this clause.

Mr PISONI: I would just like to know what the intention is. When you say it is at the discretion of the IRC, I think that people would want to know what the intention is. Is the intention that you can use a membership to represent you?

The CHAIR: Member for Unley, this is drawing something out that really has been explained.

Mr GRIFFITHS: Can I take up the point, then?

The CHAIR: You can.

Mr GRIFFITHS: It has been an issue that has been discussed with me, and I commend the member for Unley on his representation on this matter. The minister has just outlined that it is a matter for the Industrial Relations Commission. Therefore, do we have to wait until the first case appears before a formal position is gathered; and, until then, there is uncertainty as to what the resolution will be?

The Hon. P. CAICA: I thank the member for Goyder for his question. I reinforce the point that the Industrial Relations Commission has the discretion to provide support should that support be required, if, through the proceedings, the commission is satisfied that that individual will be disadvantaged without representation. It is attempting to be as fair as it can possibly be to ensure that, as the member for Unley asserted, people will not be discriminated against or disadvantaged either regarding their ability to articulate themselves or in any other way. The Industrial Relations Commission has discretion as to the level of support that may be provided to the individual in question, and I am extremely comfortable with that approach.

Mr GRIFFITHS: I understand the interpretation expressed by the minister, but it is the use of the word 'discretion' by a body that is not beholden to the rules of the parliament that concerns me. Given the answer that the minister has already provided, I am wondering whether the minister is prepared—and I know that he spoke in some detail—to indicate what his position would be if he were able to influence the way in which the IRC should consider this specific point.

The Hon. P. CAICA: Yes, I can do that because I can repeat the relevant provision in the bill. The Industrial Relations Commission may permit a party to be represented by a person who is not a legal practitioner or registered agent but only if that person is acting gratuitously; so, the parameters are pretty clear as to what the SAIRC will do, and the position I have just stated cannot be read independently of the first part of the clause if the individual concerned is able to satisfy the Industrial Relations Commission that he or she will be disadvantaged by not being represented.

Mr GRIFFITHS: The dilemma rests with the word 'may'; it is not 'must' or 'shall'. It would have been our preference to see some firm decision being made on this instead of merely an opinion being required. I know that the Industrial Relations Commission is a very reputable body, and I am certainly not casting aspersions on any decision it may make, but those who have spoken to us are concerned about what the Industrial Relations Commission may, in its judgment, determine. It may find against representation in a particular hearing, whereas the person concerned may sincerely believe that representation is necessary. It is potentially the case that the opportunity for representation has been removed because the legislation does not allow it.

The Hon. P. CAICA: In response to that, I point out that nothing has been taken away. The reality is that, under the proceedings of the GDMC, it is as it was. In no way am I being disrespectful to members of the legal fraternity, but the thrust of this measure is about ensuring that we have the best possible mechanisms, forum and processes by which disputes can be resolved in a timely fashion for the benefit of both parties and the training contract into which they have entered.

The other point I want to make in respect of the word 'may' is that the IRC ultimately is a judicial body and we cannot direct what it does. It needs that discretion to be able to function to its own satisfaction under that component of the clause.

Mr PEDERICK: Does this mean that, if you are a member of an employer group or union, you cannot have representation from either group?

The Hon. P. CAICA: No, it does not mean that. I do not wish to labour the point, but the clause provides that they may permit representation, whether you are an employer or an employee provided (1) that you have satisfied the SAIRC that you would be disadvantaged without it; and (2) that you need to be represented by a person (who is not a legal practitioner or registered agent) and only if that person is acting gratuitously.

Clause passed.

Clause 68.

The Hon. P. CAICA: I move:

Page 40, line 30 [clause 68 (2)]—Delete 'complete' and substitute:

absolute

Amendment carried; clause as amended passed.

Clause 69.

Mr GRIFFITHS: I want to take up a point in relation to subclause (2) and its relationship to other acts. Under the Fair Work Act 1994 or an act repealed by that act, the requirement for employers to employ apprentices or trainees in preference to junior employees remains in force. In my introductory comments outlining the opposition's stance on this bill yesterday, I talked about this fact and some concerns that have been expressed to us.

I appreciate the fact that it is absolutely important in the majority of cases that there be an opportunity for young people (male or female) who go into these apprenticeships or traineeships to have that option provided to them. I also respect that it is important for employers to have that opportunity to determine the person's suitability in the first instance, especially when it comes to gauging what the person's work ethic might be, and that they have the opportunity to employ them as a junior employee as opposed to automatically taking them on as an apprentice or trainee.

My understanding in discussing this matter with other bodies is that the minister had indicated that he was going to make an explanatory statement on this. I am wondering whether the minister can now define his position on this matter.

The Hon. P. CAICA: This matter is linked to industrial awards and, in fact, is contained within a couple of awards. First, there needs to be a position available. We assume here that the position is available for an apprentice within an organisation and if, for example, within the organisation an employee wants to become an apprentice or a trainee and that position is available, that person will get preference over the junior employee within that industrial award.

Clause passed.

Clause 70.

The Hon. P. CAICA: I move:

Page 41, lines 16 and 17—Delete the penalty provision and expiation fee

Amendment carried; clause as amended passed.

Clauses 71 and 72 passed.

Clause 73.

The Hon. P. CAICA: I move:

Page 43, line 12—After 'Commission' insert:

or the Training Advocate (as the case requires)

Amendment carried; clause as amended passed.

Clauses 74 to 79 passed.

Schedule 1.

The Hon. P. CAICA: I move:

Page 45—

Line 8—After 'associations' insert:

, including the South Australian Employers' Chamber of Commerce and Industry Inc (Business SA)

Line 12—After 'Council' insert:

(SA Unions)

Mr GRIFFITHS: I indicate that the opposition is pleased to support these amendments. I know this has been the subject of negotiation between various groups in their representations to the minister, and I think it is a good step forward.

Amendments carried; schedule as amended passed.

Schedule 2.

The Hon. P. CAICA: I move:

Page 48—

Line 34—Delete 'occupation or a non-trade occupation' and substitute:

or a declared vocation

Line 37—Delete 'occupation or a non-trade occupation' and substitute:

or a declared vocation

Amendment carried; schedule as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. P. CAICA (Colton—Minister for Employment, Training and Further Education, Minister for Science and Information Economy, Minister for Youth, Minister for Gambling) (17:21): I move:

That this bill be now read a third time.

I thank the member for Goyder, as the lead spokesperson for the opposition, for his contribution and the opposition for its support for the passage of this important bill. I also thank my departmental officers, in particular Elayne Neill, for the exceptional work she has undertaken throughout this process, and parliamentary counsel for its role in drafting this legislation; in particular, I acknowledge the outstanding work of Shirley Fisher. I also thank my staff, in particular, Paul Ryan and Roger Zubrinich, who have played a very important part in the consultation and preparation of this bill and, indeed Dylan Slape, my parliamentary officer.

The consultation process has been exhaustive and extremely important because of the significance of this bill. Again I thank the shadow and his Liberal opposition for the supporting this bill. I wish this bill a very safe and speedy passage through the other place. I do so because it provides an extremely important foundation for this state and sets the future wellbeing of our state economy, given its link to the acquisition of skills, and the training and employment issues that will be driven by this bill. Again I thank everyone for their contribution.

Bill read a third time and passed.


At 17:24 the house adjourned until Tuesday 3 June 2008 at 11:00.


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