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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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STATUTES AMENDMENT AND REPEAL (TAFE SA CONSEQUENTIAL PROVISIONS) BILL

Final Stages

Consideration in committee of the Legislative Council's amendments.

(Continued from 10 July 2012.)

The Hon. T.R. KENYON: With this bill there are a number of amendments that have come from the upper house, which we wish to oppose. Therefore, I move:

That the Legislative Council's amendments be disagreed to.

Briefly—I will not hold the house long—we oppose these amendments for a number of reasons; we oppose them philosophically. The opposition is seeking just to strike out the AEU from any involvement in the process. There is a strong argument for AEU involvement in the process. As the representative body of the employees, it is entirely legitimate that it be involved. Secondly, I do not believe they give the effect that the member for Unley and members in the other place intended them to give, and I will go through some of those amendments quickly.

The first amendment relates to the Teachers Appeal Board. The government opposes this, and I will give some background. The Teachers Appeal Board hears appeal matters from TAFE SA lecturers, lecturers' assistants and educational managers, as well as schoolteachers. These matters include decisions regarding termination, retrenchment, transfer, retirement or disciplinary actions, such as reprimands, imposition of fines, reductions of classification and suspension of duties.

Under the current provisions of the Education Act 1972, the appeal board is made up of three members in hearing any appeal matter: one is a member of the Industrial Court (nominated by the President of the Industrial Court), and they are the presiding member of the appeal board; the second member is selected by the chief executive of the relevant department (either the Department for Education and Child Development or the Department of Further Education, Employment, Science and Technology), and they are selected from a panel of staff nominated by the minister; and, the third member of the appeal board is a member selected by the appellant from a panel of staff nominated by the AEU.

It is important to note that the Teachers Appeal Board is not a representative board. The members are nominated by the minister, through recommendation by the chief executive of the relevant department, and provide a management perspective to the appeal board, while members nominated by the AEU provide A staff perspective.

To condense it a little, if this amendment is agreed to it will mean that all references to the AEU and the Institute of Teachers will be removed from the Education Act. My view is that the original intention, when we made consequential changes, was to make updates to language and terms used in the Education Act so that reference to the AEU is consistent throughout the bill. I was not intending to change the bill in any substantial way. The government was not intending to change the operations of TAFE in any substantial way, much less the department for education.

Removing the reference to the AEU will have a significant impact on the constitution of a number of boards, particularly the Teachers Appeal Board but also the review panel for reclassification of schoolteachers under section 29, the Teachers Appeal Board under section 45 (which we have talked about), the committee to recommend promotional level appointments under section 53, and the review committee for the closure or amalgamation of government schools under section 14C.

If we go to amendment No. 2, which we are talking about now, we oppose that because, again, we come back to this deletion of the Australian Education Union. We have had a whole bill come through about the structure of TAFE, what TAFE's role is, the way TAFE works and how it should be set up for the next few years as we deliver the Skills for All reforms that we are making.

All the opposition could do was have a big whack at the union. Its only contribution in any meaningful way, by way of amendment, was to have a whack at the Australian Education Union—a union minding its own business and trying to represent its members. It was a consequential amendment to the bill and the only change they have sought to make about the operations of TAFE is to whack the union.

At least the Greens had some sort of thought about what TAFE should look like and what TAFE should be doing, but we have not seen that. All we saw was the opposition, at the first opportunity, have a whack at the union and that is all. I think it gives union members a taste of what is to come which is that, if they were ever to get into government, at every opportunity they will have a whack at the union. It does not matter which union it is—

Mr Pisoni: They don't vote for us.

The Hon. T.R. KENYON: The member for Unley says, 'They don't vote for us,' and maybe he is right. Maybe some do, maybe some do not, but that is no basis for making a decision. Unions have a very proud history in this state. They have delivered wage outcomes that are good for working people, they have delivered security, they have delivered lower working hours, long service leave, superannuation, holiday pay, sick leave—all of these things were delivered by union action over 100 years.

An honourable member: Safe work.

The Hon. T.R. KENYON: Safe work, of course—WorkCover and related things like that—safer workplaces. All of these things were delivered by unions but, at the first opportunity, the member for Unley comes in here and the Liberal Party comes in here in another place—but this place at the same time—and has a whack. All they want to do is just belt the union—that is it. They made no contribution by way of amendment to the way TAFE is set up and no contribution to the purposes of TAFE by way of amendment. All they can do, by way of amendment, is belt the union.

I mentioned before that the effect of the amendments proposed initially by the member for Unley, and later by members of the Liberal Party in another place but the same place, is important because I do not think they do what the member for Unley intended them to do. My reading of what he intended was simply, as I said, to remove the union from all consideration about who represents employees on that panel.

The effect of his amendments has been to essentially remove the ability of the minister—and, in effect, it is the chief executive of the department—to nominate a management representative, as it were, or their own representative on the board rather than an employee representative. I do not think that is what the member for Unley intended and I think it is certainly not a practical way of going about that sort of thing.

There should be an independent chair. As well as that, a union representative or at least an employee representative is a reasonable thing. The union is probably best placed to provide that representative, but it is also important that there is a representative of management who can argue with or perhaps at least appreciate an alternate view that might be important in those proceedings.

The amendments that have come down basically replace these two groups—the chief executive's nominated group and the AEU's nominated group—with a single group, selected and elected by staff in accordance with the regulations. These regulations would need to be urgently developed and consulted on prior to being made and it is unclear if that is the best way to go about it.

In fact, I do not think it is unclear: I think it is very clear that this is not an appropriate way to set up the board—particularly the Teachers Appeal Board but also other boards there. There should be a representative of management, effectively, but of the department on these committees and boards. So, with those comments, I commend the motion to reject these amendments to the house.

Mr PISONI: It is interesting that the minister is running the same lie as the AEU is running and telling its members through a vast email chain. It is very effective, I have to say. The Leader of the Opposition's office received about 500 emails from AEU members all saying how outrageous it is that the Liberals are stopping the AEU from representing their interests. The facts are that that is not what the amendments do. The amendments do not stop the AEU from representing members' interests. What the amendments do is to enable any member of a teaching staff to put up their hand to be considered for the merit selection panels, the teacher's appeal panels, the classification review panels and the school amalgamation review panels.

Currently the act is written to exclude non-union members. Teachers who work just as hard as union members work and teachers who have just as much interest in educational outcomes as union members have, just like any other member of the Australian Education Union, through an act of parliament are positively discriminated against from putting up their hand or voting for someone to represent their interests unless they join the union.

This is 2011. This is not Australia of the 1950s and 1960s where compulsory unionism was part of the culture here in South Australia. If you look at the difference between now and 10 years ago, 10 years ago 43 per cent of the workforce was unionised in Australia. That figure is now 13 per cent. It is 13 per cent in the private sector and 18 per cent overall. Unions have become less relevant. It is this very legislation that has made them lazy and less relevant, and now they want to be protected by legislation because they have not done the work to engage their membership, to engage people in their profession to be active and to be members of the union.

Let us not forget that 0.88 per cent of a teacher's salary is what they are charged to be a member of the union. In other words, if they want to be considered to be selected for a merit selection panel under the existing act they have to fork out between $800 and $1,200 in union fees, otherwise they are not considered. They cannot vote for someone to represent their interests and they cannot put up their hand to represent their interests, and we all know how union elections operate.

The Hon. M.J. Atkinson: How do they operate?

Mr PISONI: They operate by factions making deals. That is what happens. There are no elections for these positions, member for Croydon.

The Hon. M.J. Atkinson: How do elections work in the Liberal Party?

Mr PISONI: We are very democratic. Any member of the Liberal party can have a vote—any voting member. It is extraordinary that the minister would stand up here in 2012 and say that these amendments are wrong because they remove the exclusive rights that the union movement has over everyone else in the teaching profession. It is an outrage!

It was not me who opened up the Education Act. It was not the Liberal Party that opened up the Education Act as part of the TAFE reforms. It was the government that opened up the Education Act, and why did it open it up? It opened it up so that it could change the terminology of the teachers institute to the Australian Education Union. That is why it opened it up. It opened it up to further protect the Australian Education Union.

I took that opportunity, as a member of the Liberal Party, to correct that wrong that has been there for 40 years in the Education Act, that is, locking out a particular group of teachers who, for whatever reason, do not wish to be union members from participating in a democratic process, that is, putting themselves forward as representatives in key selection panels, appeal panels and review panels within the Education Department.

It is absolutely extraordinary that this minister and this government would focus on the interests of the Australian Education Union—not unions as a whole but one particular union, because do not forget that this locks out any other union as well from participating in representing members of the teaching profession. This gives the AEU an exclusive right through legislation.

The AEU is simply a business. It is a business that offers advocacy services. Name any other businesses that have protection through legislation to knock out the opposition. That is what we have in the Education Act. We have a private business, the education union, written into legislation, and everybody else is excluded from participating in key areas in the education system here in South Australia unless those other participants capitulate and pay 0.88 per cent of their salary to the Australian Education Union and become union members. Even then, unless they are in with the 'in' crowd, they will not be selected to sit on these panels.

The Hon. M.J. Wright interjecting:

Mr PISONI: Don't take my word about the way the Australian Education Union operates. Kevin Foley said they are a dinosaur, holding back education here in South Australia. That is what Kevin Foley said in his Sunday Mail article back in March. Read it, member for Lee. I will be looking forward to your columns when you retire. It is just a pity that for 10 years he let the Australian Education Union run the Labor Party education policies. I thought he was a stronger person than that.

We are very disappointed that the government has not seen that it is important, through its own plans, to improve local management of schools and it should include all members of staff in decisions and have opportunities for all members of staff, unconditional of union membership. That is all these amendments do. They are simply encouraging a wider group of employees within the education department to participate in the democratic process, to participate in review and appeal panels.

We want to see more participation, more democracy, more involvement and more ownership of our schools and our education system by our teaching service here in South Australia. It is for that reason, and that reason only, that I put forward these amendments, first in the lower house and then the Hon. Mr Lucas on the Liberal Party's behalf in the upper house.

These Liberal amendments have had overwhelming support from fair-minded members of the upper house, understanding the importance of democracy and the importance of inclusion, and saying no to discriminating against people who choose not to be members of a union. That is all this legislation is about. These amendments that we are debating here from the upper house are simply about opening up the process beyond the exclusivity of the union movement.

I challenge the minister to give me one or two other examples where a union has exclusive rights to select members over and above non-union members in a government institution—or a private institution, for that matter. I think you would find it would be illegal in the private sector to exclude non-union members from participating in the same sorts of programs that union members could participate in that were not controlled by the union. Maybe the government's defence is that the education department is controlled by the union. If that is their defence, after 10 years, that is shocking.

Mrs Geraghty: That's not fair.

Mr PISONI: The member for Torrens says that is not fair. Let's examine that a bit further, shall we? The Personnel Advisory Committee Handbook was developed after the 2010 enterprise bargaining agreement. The government panicked because they had not dealt with it for two years and capitulated to the union in almost every single area, including how schools should be run and how principals should manage their schools.

If we look at the handbook—and for Hansard—the education department logo is shared with the Australian Education Union logo on the front cover. For the benefit of members opposite, it is a joint document with the Australian Education Union and the education department. It runs through what a Personnel Advisory Committee is. I will try to keep this simple and as quick as possible. Basically, it states:

Each school will establish a Personnel Advisory Committee comprising of the following membership:

the Principal

Here is the person who manages the school, who runs the school. The principal is the person who this government says it wants to give autonomy to. So, put that in your pocket and pull it out a bit later. It continues:

a representative elected by AEU members at the school

AEU members only are placed on that advisory committee. It continues:

an equal opportunity representative elected by all staff at the school

So, what the government is saying is that it is all right to have an equal opportunity representative elected from all members of staff but we cannot have people elected to selection panels, the Teachers Appeal Board or review panels elected from all members of staff, they have to be Australian Education Union members.

Then, when the principal wants to do something even as simple as move a teacher from one classroom to another, he must establish a meeting of the Personnel Advisory Committee and take advice from that committee. He is paid and given the responsibility to run that school and yet without the approval of an Australian Education Union member and a staff representative he cannot act. If there is a disagreement between a principal and the Personnel Advisory Committee then there is another process the principal has to go through, simply to move a teacher from one classroom to another because the principal believes that is a better educational outcome for the students at his school.

How do we know how these Personnel Advisory Committees work? Do not worry about that, the government has training in place for the Personnel Advisory Committees. Who conducts the training? The Australian Education Union conducts the training for the Personnel Advisory Committees. Where is the training for the Personnel Advisory Committees? It is at the Australian Education Union house on Greenhill Road. Not only that, the education department pays rent for the rooms where the training is conducted. It is an extraordinary situation.

Then, when the principal comes up with a situation where he has some issues with an employee (a teacher) who might need some performance management, there is a 48-step process (over three pages) that the principal must follow through. One of those stages is that the teacher, about who the principal is writing a report to the CE for that teacher to be considered for their performance, has to agree with the comments written by the principal. Guess who signed off on that 48-step process, member for Mount Gambier? I will give you one guess. The AEU. They were involved the development of that process the principal has to work to.

So, you can see what has happened. The member for Little Para is laughing. I can understand that. It is like a comedy. It is like Monty Python, it really is. The Personnel Advisory Committee is just one part of the 38-page document. We also have to remember that appendix C of the Personnel Advisory Committee Handbook tells us that there is a release time for sub-branch secretaries:

It is appropriate for the duties of AEU sub-branch secretaries to be recognised and where necessary programmed into the school's programme.

What that is saying is that taxpayers and parents—because in South Australia parents pay the highest school fees in the nation—are paying for the Australian Education Union to conduct its business in school hours. That is part of the agreement that is put together and instructed in the 2011 edition of the Personnel Advisory Committee Handbook.

So you can understand why we got support from the vast majority of the crossbenchers—every member of the crossbenches other than the Greens, I must say—for the democratisation of the Education Act here in South Australia. They could see that it is crook in Crystal Brook when it comes to the Education Act here in South Australia.

They were pleased to see that someone was taking up the fight and opening up processes for all teachers to participate in in South Australia, not just those in the club of the Education Union. It is for that reason, and that reason alone. There is no ideology here, minister, in my motivation for these amendments to this bill. It is all about the federal government's agenda, the state Liberal governments' agenda, and what this government claims to be an agenda: local school management and schools being more inclusive of their communities. At the moment, the way the Education Act stands, if you are not a union member you are excluded.

The Hon. T.R. KENYON: I think I have largely said everything; but, again, no concerns about the structure of the bill, no concerns about how TAFE might operate, no concerns about the purpose of TAFE or anything like that: it is just, 'There's the union. Hit it.' That is it, basically. I am unsure where it comes from with the member for Unley; he has a particular set against all unions in general, perhaps. Obviously, I cannot speak for him, but—

Mr Pisoni: I was a member of Actors Equity back around 1980.

Members interjecting:

The Hon. T.R. KENYON: I apologise, sir, but it is quite funny to think of the member for Unley as an actor—not that he would not be good at it, it is just that I cannot picture it. You would not expect to see him in a soap opera or something like that, maybe not on Ramsay Street or—

Mr Pisoni interjecting:

The Hon. T.R. KENYON: I have to admit I can see that. Sorry, I digress. The member certainly gives the impression that his main purpose in this place is to belt unions at every opportunity; if he sees a union head pop up, smack it. That is his attitude, and I have to say to all employees out there that, if they are a member of the union and the Liberal Party, particularly the member for Unley, has any say in the matter, they will belt you. They are not interested in your concerns or in your representative body.

Let us not beat around the bush here. The Teachers Appeal Board deals directly with the employment outcomes of employees, so their future, in some small way—or in a large way in some cases—rests with the outcome of the appeal board. A union (in this case the AEU) is unambiguously on the side of the employee and can be guaranteed to represent the interests of the employee in the considerations of the appeal board.

That is not a bad thing, rather than have an election, perhaps, of someone who has a mild interest or an interest in being elected but does not have the background or that vociferous adherence to the interests of the employee—as a union does, as the AEU does, as every other union in this country does. It is no bad thing that the employee representative—in this case the AEU—is on this appeal board. That is one argument.

The second argument is that they just do not work; these amendments do not work as the member for Unley intended. What they do is create of pool of employees, elected by all employees, and there is no room for a nominee of the CEO or the management to be on that committee. That is not a good outcome because as there should be an advocate of the employee, equally there should be an advocate of the employer. These amendments make sure that there is no advocate for the employer. I do not think that is the outcome that the member for Unley intended and it is certainly not an outcome that I agree with. I urge members to oppose these amendments.

The committee divided on the motion:

AYES (20)
Atkinson, M.J. Bedford, F.E. Breuer, L.R.
Caica, P. Close, S.E. Conlon, P.F.
Fox, C.C. Geraghty, R.K. Hill, J.D.
Kenyon, T.R. (teller) Key, S.W. Koutsantonis, A.
O'Brien, M.F. Odenwalder, L.K. Portolesi, G.
Sibbons, A.J. Snelling, J.J. Thompson, M.G.
Vlahos, L.A. Wright, M.J.
NOES (12)
Chapman, V.A. Evans, I.F. Gardner, J.A.W.
Goldsworthy, M.R. Griffiths, S.P. Marshall, S.S.
McFetridge, D. Pegler, D.W. Pisoni, D.G. (teller)
Sanderson, R. Treloar, P.A. Venning, I.H.
PAIRS (10)
Weatherill, J.W. Redmond, I.M.
Bettison. Z.L. Hamilton-Smith, M.L.J.
Bignell, L.W. Pengilly, M.
Rau, J.R. Williams, M.R.
Rankine, J.M. Pederick, A.S.

Majority of 8 for the ayes.

Motion thus carried.

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