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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-11-14 Daily Xml
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PUBLIC SECTOR ACT

Mrs GERAGHTY (Torrens) (15:01): My question is to the Minister for the Public Sector: will the minister inform the house what steps the government is taking to avert the potential misuse of section 56 of the Public Sector Act?

Ms Chapman interjecting:

The Hon. M.F. O'BRIEN (Napier—Minister for Finance, Minister for the Public Sector) (15:01): I can't see the connection, member for Bragg. I thank the member for Torrens for this question. The Public Service Association recently raised with me concerns around the misuse of powers under the Public Sector Act, section 56, which allows for ordering of independent medical examinations. It was always intended that section 56 should only be used in those circumstances where the employee is performing their duties unsatisfactorily and it appears that such unsatisfactory performance may be caused by mental or physical incapacity.

A direction under section 56 should only be made on reasonable grounds and based on individual facts and circumstances. Unfortunately, it is sometimes necessary to invoke this power when people suffering mental incapacity unfortunately lack insight and refuse to accept that they are suffering any medical condition. The PSA put to me a view that various agencies in some cases were inappropriately using section 56. In addition, I was made aware of a complaint by an employee being upheld in the Public Sector Grievance Commission.

I would also like to acknowledge the Hon. Robert Brokenshire in another place for his representations on this matter and for bringing constituents to see me and share their experiences. After obtaining this information, I spoke with the Commissioner for Public Sector Employment and asked that he review the matters raised and consider the issuing of a guideline to address the concerns. I am pleased to inform the house that the guidelines have now been developed and circulated to public sector agencies.

The guidelines clarify the circumstances under which a public sector employee can be required to submit to an independent medical examination, particularly a psychiatric examination, under section 56 of the act. The guidelines ensure that agencies undertake the use of standard performance management processes prior to reaching this stage. Unfortunately, the evidence that I had indicated that they were, in fact, using it as a tool for managing poor performance.

The guidelines also highlight that decision-makers should rely on fact and evidence and that section 56, as I said, is not a substitute for poor management performance. The guidelines acknowledge that requesting someone to undergo a psychiatric examination can have unintended consequences and can be distressing for the employee, their family and colleagues.

I met two of those individuals and both were extremely upset at the consequences for both them personally and, in one case, for the teenaged son who felt that his father was mentally unwell, when that had to be established. So, we have arrived at a situation, through representations from the PSA and now the issuing of guidelines by the commissioner, where we have a situation of some clarity in dealing with this matter.

Last Wednesday, I gave an opening address at a forum titled Mental Health in the Workplace at which these new guidelines regarding section 56 were discussed. I was quite pleased that some 420 attendees registered. For those members who are interested, the guidelines can be viewed on the Office of Public Employment and Review website.

The SPEAKER: Before I call on grievances, I just want to congratulate the member for Norwood for only getting one warning today—you are learning.

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