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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-07-14 Daily Xml
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PUBLIC SECTOR BILL

Final Stages

Consideration in committee of the Legislative Council’s amendments.

Amendment No. 1:

The Hon. J.W. WEATHERILL: I move:

That the House of Assembly agree to the Legislative Council's amendment No. 1 with the following amendment:

New clause 6A—Delete paragraphs (b) and (c).

Can I say by way of general remarks about the bill in its amended form that total agreement has been reached now between the government and the opposition, and I will set that out as we go through the various clauses.

This bill was conceived at a time when we regarded the role of the public sector as important, and we needed a bill which would enable the public sector to meet the challenges that were likely to confront it. Of course, at the time I do not think that we could have conceived of the significance of those challenges: the global financial crisis; a deepening and growing awareness of the challenges of climate change; and a deepening and growing awareness of issues such as the water crisis facing our state.

If anyone has doubted the central role of the public sector in meeting the challenges for our community, surely those doubts must now be dispelled. The rationale for this legislation is more important now than it was at the time when the legislation was conceived.

This bill is about giving us a high performing public sector, and it is based on a principle that is fundamental to the Labor Party; that is, that we value a strong public sector. We also believe that the most crucial way of ensuring that we have a strong public sector is to make sure that the standards and the principles that are set out in this legislation, which go to the question of a high performing and accountable public sector, are front and centre.

Much of the debate is swung around questions of discipline and performance in relation to this legislation, but can I say this: the overwhelming majority of public servants in this state do an extraordinary job for our community and we pay our respects to them. We believe that this is the legislation which they demand and which they want.

One of the things that has been made absolutely clear from the public servants to whom I have spoken during the course of the deliberations on this bill is that they do not want to work in an organisation that has anything less than an excellent reputation. They want to work in an organisation that is respected by the broader community. Almost to a person, people join the Public Service because they want to make a difference. They see it as a vocation. So, this legislation sets out those goals and aspirations and includes them in the legislation for the first time, and links all the things that we seek to do with respect to lifting the performance of the public sector to those principles.

I am very proud of this piece of legislation. I think it gives us the capacity to move forward as a public sector in this state, playing the leadership role it undoubtedly needs to play to meet the challenges for South Australia in the future.

Referring more specifically to this clause, throughout the debate in respect of these whistleblower amendments the government has maintained that substantive clauses relating to whistleblower protection should be contained in one piece of legislation and, consistent with that position, we are prepared to accept the amendment requiring agencies to designate a responsible officer. We do not accept the amendments setting out the responsibilities of those officers, which more properly belong in the whistleblower protection legislation.

Mr GRIFFITHS: I wish initially to speak broadly, while acknowledging the fact that negotiations on this bill have been quite extensive and also acknowledging the agreement that has been reached between the opposition and the government in relation to amendment No. 1. I commend the minister and his staff on their willingness to sit down and talk about this bill. It has been some time in the making: I understand that a first draft was put out for consultation in November 2007, with consultation open until January 2008. There were some delays in the presentation of the bill to the house but, certainly, since that time the discussions that have occurred between all parties have been focused on ensuring that opportunities exist to give the public sector, which is a collection of wonderfully talented and dedicated people, the sort of legislation that they need and deserve.

The minister has referred to the issues facing the world, our nation and our state. It does demand that we have a public sector of some 79,000 full-time equivalents and over 90,000 people in total who work for the public sector to be provided with opportunities to show and demonstrate their problem-solving capacity. We all recognise that this state faces many challenges. While in the past criticism has been levelled at the Public Service for being far too risk averse, we now know that opportunities exist, and those opportunities need to be sought and taken up. This bill, which is the modernisation of a 1995 act, provides many of those opportunities.

I recognise that, within part 3, clause 5, 'Public sector principles', focuses on the positives, and I commend the minister for that. It has taken a lot of work to reach this stage, but I am very confident that, with respect to the 20 amendments, the negotiations that have occurred between all parties (whether it be members of the House of Assembly or the Legislative Council, where amendments were moved—and this is an amendment that was moved by the Hon. Ann Bressington from the other place) now allow an act to be in place that will support the needs of the government and of South Australians and, importantly, will provide the opportunity for those wonderful public servants to do their job properly, and that is what we all want to see. I indicate that, in the negotiations that occurred specifically on amendment No. 1, agreement was reached that paragraphs (b) and (c) no longer be pursued and that only new clause 6A(a) will remain.

Motion carried.

Amendments Nos 2 and 3:

The Hon. J.W. WEATHERILL: I move:

That the Legislative Council's amendments Nos 2 and 3 be disagreed to.

The government has consistently taken the view that this legislation should not provide a preference or an advantaged position for any one union and so does not accept amendment No. 2. The government does not accept amendment No. 3 which requires agencies to report the number of whistleblower disclosures in their annual report. For all other matters, the content of annual reports is set out in the regulations that the government commits to, including the requirement to state the number of whistleblower disclosures.

Mr GRIFFITHS: Amendment No. 2 was moved by the opposition in this chamber and in the other place. It relates to the need to consult in respect of all that has to occur with public sector employees before a decision is made or action is taken that will affect a significant number of public sector employees. That was because there was a concern that the necessary level of dialogue that would have to occur between departmental structures and the employees of the department may have been lacking in some ways.

However, I do recognise that, within the principles under employer of choice, there is a very strong focus on consultation with public sector employees and public sector representative organisations on matters that affect public sector employment. In recognition of that principle, even though there was a thorough debate (until yesterday, as it turns out) that the retention of this amendment would not indeed harm the bill, all the parties have recognised that within the principles there is sufficient coverage in place and, therefore, there is a willingness on the part of the opposition to accept the removal of that amendment.

Amendment No. 3 was moved in the other place by the Hon. Ann Bressington and it does relate to whistleblower protection, as do several of the member's amendments. The fact that a commitment was given by the government to include the requirement as part of the regulations is accepted by the opposition. It is not, from our point of view, an ideal circumstance. It would have been our preference for it to remain in the bill, but we understand that its inclusion in the regulations does provide sufficient cover for the issues identified by the Hon. Ms Bressington, and so the opposition supports the removal of amendments Nos 2 and 3.

Motion carried.

Amendments Nos 4 to 8:

The Hon. J.W. WEATHERILL: I move:

That the Legislative Council's amendments Nos 4 to 8 be agreed to.

Amendments Nos 4 to 6 give the Commissioner for Public Sector Employment the power to act on the commissioner's own initiative in certain matters and, while the government has stated its concern that these provisions may create some difficulties in the dynamic between the commissioner and agencies, it is not a concern of such significance that it should delay the passage of the major reforms contained in the bill.

Amendment No. 7 effectively deletes a provision drawn from the current act that has not been used as far as we are aware, so we are happy to accept the amendment. Amendment No. 8 was the government's amendment in the other place and is a powerful statement of the rights of public sector workers to participate in matters of public interest and, as far as we are aware, it is the first of its kind in Australia. It balances that right with sensible qualifications on that right.

Mr GRIFFITHS: First, I indicate that I am prepared to accept amendments Nos 4 to 8 in total, and I will speak briefly on each of them. I am very pleased that the government has resolved to accept amendments Nos 4 and 5 which relate to the opportunity for the commissioner, on his or her own initiative, to undertake an investigation.

This was actually an important issue for the opposition. We felt that the opportunity should always be there for a commissioner for public sector employment to be involved in a review of matters that come to his or her attention. I understand that there was some level of initial apprehension towards this and, certainly, when these amendments were moved in the House of Assembly during the earlier debate, they were not supported. I am pleased that, in the discussions that have occurred in the other place and in the discussions that have occurred since then, there is a consensus that providing the Commissioner for Public Sector Employment with this opportunity is, indeed, positive. So, I am pleased about that recognition from the minister.

Amendment No. 6 was moved by the Hon. Ann Bressington in the other house. Again, this amendment concerns issues related to whistleblower protection, and I am pleased that the minister has supported that. Amendment No. 7 was moved by the Hon. Robert Brokenshire in the other place for the deletion of all by the minister. So, again, I am pleased that the minister has accepted that.

I recognise quite strongly that amendment No. 8 was a proposal put to the opposition in the discussions that occurred in debate between the houses. I am grateful that the minister has chosen to support this amendment and moot it as an amendment from the government in the upper house. It was important to the opposition and certainly to the groups with which we consulted that there had to be an opportunity for public sector employees—given that they are so vast in number, so skilled in many of the areas and have a particular interest in so many areas—to have an opportunity to express an opinion about issues.

An example was quoted to us of a public sector employee who may have a relative, a close friend or an associate who suffers from some level of disability. If that person felt that their attendance at a rally (presumably being organised on the steps of Parliament House) to bring to the attention of South Australians the need for support to be provided to the disability sector was a sign of good faith in the issues of their relative, friend or acquaintance, they should be provided with the opportunity to be part of that without any concern being expressed about the tenure of their employment or any disciplinary action being taken. So, it is seen as a positive. The minister has already confirmed that it is somewhat groundbreaking as it relates to Australia, but certainly the opposition believes that it is a move forward, and it commends the government on being prepared to bring this amendment before the Legislative Council and now before this chamber.

Motion carried.

Amendments Nos 9 and 10:

The Hon. J.W. WEATHERILL: I move:

That the Legislative Council's amendments Nos 9 and 10 be disagreed to.

Amendment No. 9 cannot stand with amendment No. 8, as it covers most of the conduct falling within amendment No. 8, but applies different rules to that conduct. It abandons the sensible qualifications on conduct that amendment No. 8 carefully sets out. Amendment No. 10 is one of the whistleblower amendments providing substantive protection for whistleblowers, which ought properly be a part of whistleblower legislation, if it is to exist; therefore, the government does not accept it.

Mr GRIFFITHS: I accept amendments Nos 9 and 10 being withdrawn. First, I will refer to amendment No. 9, which was an amendment prepared by the opposition as part of the discussion that occurred within the House of Assembly previously. A discussion took place at the time of amendment No. 9 being presented to the opposition for review, with a position that potentially amendment No. 9 would not be pursued. In fact, it was pursued in the upper house, but we recognise in the debate that has occurred since then between all the groups that, while it is a very important issue, the qualifications around which amendment No. 9 might in fact come into play were somewhat removed because of other circumstances. So, in recognition of the good intent from amendment No. 8, the opposition confirms its support for the withdrawal of amendment No. 9.

In regard to amendment No. 10, which was moved by the Hon. Ann Bressington in the other place, there was certainly a desire to retain it, but I know that, in my discussions with the chief of staff of the minister that, while a commitment has not been given to the sorts of issues specifically being addressed in other legislation, the comment from the chief of staff was that legislation is intended to be proposed within the Legislative Council which could include some debate about this sort of issue. So, on the basis that the Hon. Ann Bressington is given an opportunity to pursue this matter as part of other legislation, the opposition indicates its willingness for amendment No. 10 also to be withdrawn.

Motion carried.

Amendment No. 11:

The Hon. J.W. WEATHERILL: I move:

That the Legislative Council’s amendment No. 11 be agreed to.

The government has wondered about the utility of this amendment, which effectively treats the code of conduct as a regulation. However, it has no strong view on it and so is prepared to accept it.

Mr GRIFFITHS: This amendment was moved by the Hon. Robert Brokenshire in the other place. The opposition supported it at that time, which is why it became one of the 20 amendments this place is now considering, and is pleased that the government has indicated its willingness to accept it.

Motion carried.

Amendment No. 12:

The Hon. J.W. WEATHERILL: I move:

That the Legislative Council’s amendment No. 12 be disagreed to.

Similar to its position on amendment No. 3, the government does not accept the amendment to the bill but commits to making a relevant regulation.

Mr GRIFFITHS: This amendment was moved in the other place by the Hon. Ann Bressington and relates to the concerns she has about whistleblower protection being provided to public sector employees. The fact that it is to be considered by regulation supports the opposition's position to allow for the withdrawal.

Motion carried.

Amendment Nos 13 and 14:

The Hon. J.W. WEATHERILL: I move:

That the Legislative Council’s amendments Nos 13 and 14 be agreed to.

These amendments reflect agreement between the government and the opposition in the other place.

Mr GRIFFITHS: Amendment No. 13 was an amendment moved by the opposition in the other place, and it is grateful for the government's support on that. Amendment No. 14 was a government amendment proposed in the other place, and the opposition is pleased to see it included in the bill.

Motion carried.

Amendment No. 15:

The Hon. J.W. WEATHERILL: I move:

That the Legislative Council’s amendment No. 15 be disagreed to, and that the following alternative amendment be made in lieu thereof:

Clause 53—after subclause (2) insert:

(3) A public sector agency may not terminate the employment of an employee under subsection (1) on any ground unless the agency—

(a) has informed the Commissioner of the grounds on which it is proposed to terminate the employment of the employee and the processes leading up to the proposal to terminate; and

(b) has considered any advice given by the Commissioner within 14 days about the adequacy of the processes.

I think it is clear that the major difference between the government and the opposition on the bill has, up to now, been in respect of the right of chief executives to terminate employment. This principle has been non-negotiable for the government. It brings us into line with other mainland jurisdictions and in line with what occurs in the broader public sector here in South Australia. It also avoids the absurd situation where agencies that have both broader public sector workers and public servants can terminate their operational staff but not their administrative staff.

It will be one element working with other elements of the bill to facilitate better management of employees and so better services for the community, and I am pleased that the government and the opposition, through a positive approach taken by their new deputy leader, have now agreed to enshrine this principle. I understand the opposition will no longer press for the commissioner to be a person with the power to dismiss. Rather, we have agreed that, consistent with the commissioner's more general advising role, he or she will provide agencies with advice regarding the adequacy of the processes leading to the decision to dismiss.

Mr GRIFFITHS: There is no doubt that this was a key issue in the debate on the legislation, and I acknowledge the fact that the amendments previously moved in the House of Assembly—and, indeed, in the Legislative Council—by the opposition included wording which provided a very much unintended consequence in that they referred to the commissioner as being a person who had the ability to make that decision. That was not my intent, and I am pleased that the minister and I had a discussion about this after I made a brief contribution in the house via a grievance debate—which I probably should not have done, given that it was a bill before the house at that time. However, I saw an opportunity there.

To his credit, the minister immediately approached me and pointed out some differences between the position put in the amendments and my statements. Since then there has been much debate, and I put on the record the willingness of the Public Service Association, its chief industrial officer, its executive director and its president, to sit down and discuss the matter so as to allow the bill to move forward. There is no doubt that, as part of the consultation undertaken by the opposition, considerable concern was expressed about the opportunity, via the introduction of the original bill, for what could be considered inappropriate action taken to terminate the employment of a public sector employee. The amendment proposed now by the minister does put in place a review opportunity.

For me, the important issue has always been the fact that the process needs to be correct. I am a process-driven person who recognises that if you work through that process the best outcome is, in the main, always achieved. This opportunity now provides that, whenever a CE believes there is a need (as per the provisions included in clause 53 for termination to occur), a review is undertaken by informing the commissioner of the grounds upon which it is proposed to terminate the employment of the employee and the processes that have lead to the proposal to terminate. The commissioner then has the opportunity, within 14 days, to consider the advice given and to provide comment back to the departmental CE.

To me, that is an important process because it removes the possibility of a rash decision being made. It allows for a decision to be made in calmer times, to ensure that the decision being made in relation to the future of a public sector employee is, indeed, the best one, by a consideration to be given by the Commissioner of Public Sector Employment.

Yes, there have been somewhat vast differences of opinion in relation to clause 53, but I think that the amendment that we now have before us represents a significant step forward. It is the result of some very detailed negotiation between the minister and his staff, the opposition and, indeed, the PSA. I commend all parties on the maturity that they have brought to the debate on this particular amendment, because I believe it represents an opportunity for public sector employees to have confidence that the process will be right and to ensure that opportunities exist for them to have some surety. I commend the amendment.

Motion carried.

Amendments Nos 16 to 20:

The Hon. J.W. WEATHERILL: I move:

That the Legislative Council's amendments Nos 16 to 20 be agreed to.

Amendment 16 was supported by the government in the other place; amendment 17 was moved by the government in the other place. Amendment 18 requires that a transfer decision requiring relocation of a place of residence be reviewable by the Industrial Relations Commission rather than by the Public Sector Grievance Review Commission. This is not a matter of great concern, so it is now accepted. Amendment 19 was supported by the government in the other place, and amendment 20 restores the existing panel approach of the Public Sector Grievance Review Commission.

While there is a risk of adding time and expense to what could be relatively simple matters by the need to convene a panel, there is likely to be some benefit in some matters from being able to access particular public sector expertise or knowledge, which would generally offset the potential extra time and expense; so, the government accepts this amendment.

Given that this is the last clause, I would also like to make some remarks about the process that led to this bill. It has been an extraordinary task. It has occurred, as the honourable member has noted, through an extensive process of consultation over a number of years. There have been extraordinarily detailed discussions with the relevant unions, in particular, the Public Service Association, and very detailed discussions with the Deputy Leader of the Opposition.

In particular, I single out some officers for particular thanks for their commitment: Trudi McDonald, Jane Francis, Nick Atanasoff, Greg Parker and Craig Stevens from the Crown Solicitor's Office, and Christine Swift and Jo Ryan from parliamentary counsel. I also particularly acknowledge my chief of staff, Simon Blewett, for the role that he has played in having the burden of carrying out the negotiations with the PSA over an extended period and also with the Deputy Leader of the Opposition. Frankly, his expertise (he being an employment lawyer), the skill he has exercised in imparting the information, assisting people to understand the effects of the government's amendments and giving me some very sensible advice on how to chart a way through the process of reaching agreement around this bill has been extraordinary, and I thank him for that.

This bill is an extraordinary achievement and it is something of which everyone who has been associated with it should be proud, including the unions. I think the PSA is entitled to show this bill around now as enshrining a set of principles which elevate public servants in this state, and I think that is something of which they should be proud, as should every individual member of the public sector in this state. Thank you to all those who have been involved in making this legislation what it is.

Mr GRIFFITHS: I will make some brief comments in relation to the amendments before making my final summation. Amendment No. 16 was moved by the opposition in the other place and, from my point of view, involved the tidying of up some words. I am grateful the government has supported it. Amendment No. 17, as mentioned by the minister, was a government amendment in the upper house relating to the fact that, when a suspension takes place, that suspension is with remuneration. My recollection is that, previously, it said 'may be', so that is a step forward.

Amendment No. 18 was an amendment from the Hon. Rob Brokenshire. It was an important one because it inserts 'a decision to transfer an employee, or to assign an employee to a different place, that reasonably requires the employee to change his or her place of residence'. The Hon. Rob Brokenshire, who represents Family First, put this in as a very strong family focus opportunity, and certainly the opposition readily supported it. It is important that the government has also supported this amendment.

I know from my review of the shared services reforms that have taken place that, for many people, it has meant a potential dislocation if they are to retain their position; that is, they are being required to move their physical location. People grow roots in a society and in a community. They have intimate relationships with friends and family within that area. It was important that, in circumstances where a position is moved to another location which may require a person, individual or family to move, that this amendment was moved, and that is why the opposition readily supported it and recognises the government has also now chosen to do so.

Amendment No. 19 was an opposition amendment in the other place. We are pleased that the government has decided to support this. I must admit, amendment No. 20 was one of the last ones on which we formed a final opinion. For us it was also somewhat of a defining issue. The belief was based around the fact that the creation of a panel to review matters does improve things. Whilst it is recognised that a single commissioner brings many skills to the role, it was thought that the creation of a panel consisting of people drawn from a group of nominees who represent all sides of the debate and who have the relevant expertise would improve the review of disputes and grievances and would ensure that, in most cases, the decision was made within a very prudent time line.

The concern was that, with a single commissioner potentially requiring that additional information be provided before a final decision could be made, that may delay the process. The retention of the panel as it is, with the skills that the three people bring from varying areas, should ensure that a decision is able to be made during the first discussion on any issue which comes before it. The opposition always saw this as an important area. It was part of a lengthy debate that occurred between all the parties up until mid yesterday afternoon, but I was very pleased that the government decided to support amendment No. 20.

The opposition recognises the enormous contribution that the public sector not only has played but must play in the future of South Australia. We are responsible for the work ethic, the commitment, dedication and skill and the belief the public sector has in itself and in our state. There is a very strong desire to ensure the public sector is a career of choice for people. I was rather amazed, as part of the discussions that took place during estimates, to find that within the 90,000-odd people who work within the public sector and the 79,000 full-time equivalents there has, over the past three years, been a loss to the public sector that has been replaced by between 10,000 and 12,000 new people per year. I found that a significant turnover rate, for which there could be many reasons. Certainly younger people now, upon entering the workforce, tend to move around a fair bit.

We know that the state faces issues with a public sector involving an ageing demographic profile and, over the next five years, there is a strong risk of the loss of a lot of senior people who choose to go off into the wonderland and enjoy their opportunity to retire and travel and be with friends far more often than when they are in the workplace. This will create a lot of challenges. The opposition has always confirmed its support for the general principles of the bill and, by modernising the legislation, we will focus on providing a workplace opportunity that will ensure, as far as humanly possible, that the public sector becomes a career of choice, which is what we need it to be. We need the best people possible to be working within the public sector, providing services, coordinating infrastructure development and doing everything they can to make South Australia a great state.

I recognise the commitment given by the PSA and thank it for its constant support in consideration of this bill. There is a strong recognition of that assistance, and there is no doubt that, when Mr Simon Blewett—the person with whom I have had detailed discussions—comes to the table his knowledge and experience are invaluable in considering the issues and nuances of the provisions in this legislation. The minister's willingness to meet with me several weeks ago was greatly appreciated, and the fact that the minister has acknowledged that this bill and the debate that has occurred represent an opportunity whereby a bipartisan approach can been taken to ensure that the best possible legislation is enacted. All parties involved in this measure, be it the House of Assembly or the Legislative Council, and all the contributions made to the debate have moved it forward in a positive manner, and let us hope that we now provide an opportunity for the South Australian public sector to do the job before it, which is an enormous challenge, to make our state a great one.

Motion carried.

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