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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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TAFE SA (PRESCRIBED EMPLOYEES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 6 February 2013.)

Mr PISONI (Unley) (17:13): I am the lead speaker for the opposition on this bill, which is, of course, a second attempt by the government to complete the transfer of TAFE SA from the Department of Further Education, Employment, Science and Technology to an independent statutory authority.

I indicate that the opposition will not be supporting this bill, and we will not be supporting this bill because there is a bill sitting on the table which will do this job—the original bill—and which will enable the minister to achieve what she wishes to achieve in this bill. That bill was amended in the upper house, and it was amended by a majority of elected members of the upper house and it was amended in such a way that would make the Education Act more democratic.

The opposition previously supported the TAFE SA Bill 2012 and the Statutes Amendment and Repeal (TAFE SA Consequential Provisions) Bill 2012, the first of which has passed through both houses and the second one obviously passing only through the other place, with Liberal and Independent amendments that the government has objected to.

The opposition is at a loss to understand why the government has refused to accept this legislation as amended by the Legislative Council, nor do we understand why the government cancelled four deadlock conferences over a period of many months before the new minister finally kept an appointment for the fifth conference, only to reject her own government's legislation.

I note that in her first reading speech the minister states that the bill replaces the previous Statutes Amendment and Repeal (TAFE SA Consequential Provisions) Bill and that the government was unable to pass it through the parliament. That is not the true state of the facts of that bill. It would be more accurate to say that the government was actually unwilling to pass it through the parliament or that it refused to accept the amendments that were passed in the upper house.

Let us be clear: these were minor amendments to the Education Act 1972 by the opposition and the Hon. John Darley in the other place which sought only to remove the Australian Education Union's exclusive right to appoint employee representatives to education boards and committees such as the Teachers Registration Board, the Teachers Appeal Board, etc.

It is important to note that these amendments did not in any way restrict union access to these appointments: they merely removed the exclusive monopoly, opening up the positions to all members of the teaching profession, whether or not they were union members. The amendments that were supported and passed in the upper house had the effect of removing the exclusive right that the Australian Education Union had to appoint delegates from its own members to these important bodies such as the Teachers Registration Board and the Teachers Appeal Board.

No-one has ever sought to prevent the union or union members from having access to these positions. The intention was simply to do what anyone in the wider community would see as being fair and reasonable in an open and democratic society and to free up these positions to all employees. The amendments that were successful in the upper house and that were rejected by this government were there to enable all teaching staff the same opportunity. There was no requirement, no prerequisite, for them to be members of the Australian Education Union in order to be considered for a position on the Teachers Registration Board, the Teachers Appeal Board, etc.

It would be difficult to think of any other area in the workforce or in society where such a union monopoly remains. This monopoly is a legacy of a time past when Australians lived in a much more regulated society, when union membership was about 75 per cent of the workforce. Today, of course, union membership is about 17 per cent of the general workforce—about 13 per cent of the private sector workforce—yet we still have in legislation here in South Australia clauses that positively discriminate against members of a faculty or members doing the same job simply because they are not in a union—but not just any union, not in the Australian Education Union.

Let us be clear that the opening up of positions and the ending of the Australian Education Union's monopoly is what the state Labor government refuses to accept. It is an extraordinary situation that we have a government that has refused to accept amendments to the Education Act that open up and democratise the Education Act and enable all teachers, regardless of their status, regardless of their union membership, to nominate and vote on who they believe would best represent them on such important bodies as the Teachers Registration Board and the Teachers Appeal Board.

The AEU is obviously demanding that the Labor government do this, that the Labor government not support these amendments, and the Labor government has capitulated. The Labor government has wasted our time here and the taxpayers' money to introduce a replacement bill for one that is clearly acceptable to everybody except the vested interests of the Australian Education Union and those who support the union monopoly in the education workforce, which is the ALP and the Greens.

A cautionary note for those who see green as an appealing political colour is that they refer to amendments to the previous bill in the other place that sought to open up opportunities for non-union teachers and principals as 'union bashing amendments'—an extraordinary claim. 'You are either with us or you are against us' according to those that are opposed to the amendments that were passed in the upper house—not a very free-thinking modern attitude I would suggest.

It is disappointing that the Australian Education Union chose to misrepresent to its members the facts in regard to the previous statutes amendment legislation that was supported in the Legislative Council. It falsely alleged a campaign 'Keep the act intact'. If you look at the material on their website at the time, it is interesting to see the claims. I should read the whole lot so it is in context:

While debate took place on TAFE reform in the Legislative Council on June 14—

this was last year. This is how long the government has taken to deal with this matter—

Liberal MLC Rob Lucas launched a surprise attack on the AEU by moving amendments to the Education Act...that delete all reference to the AEU.

The amendments were supported by Shadow Minister for Education, David Pisoni, who tried the same move a few weeks earlier in the Lower House.

The amendments were passed with the support of the Independents and Family First. Both the Greens and the ALP members voted against the amendments, with Industrial Relations Minister Russell Wortley fighting hard for the union's rights in his speech against.

Of course he would do that. He is in the parliament because of the unions. His wife is about to get preselection for Torrens because of the connection that the family has with the union movement.

The AEU was astonished to see that SASSLA (SA State School Leaders Association) President Jeff Waite was referenced in Hansard as supporting these anti-union amendments.

Goodness me, another organisation that represents the interests of educators is described as demons by the Australian Education Union in this letter. It also goes on to ask, 'What does this mean for AEU members if the proposed amendments go ahead?' This is what the AEU was telling its members:

No AEU representative on any merit selection panel. There are thousands of leadership panels that run every year and the AEU rep has a critical role to play in ensuring fairness and equity for applicants. AEU Sub Branches would no longer have any say in this process.

What a load of nonsense! Every single teacher has an opportunity to nominate and vote for their representative, including AEU members. They have the same vote: one vote, one value. We all stand in favour of one vote, one value, but not the Australian Education Union. One union vote, one value; one non-union vote, no value is what the AEU would prefer. It goes on to say:

Teachers Appeals Board

No AEU representative on the TAB thus denying AEU members who take matters to the TAB union representation. The AEU reps are democratically elected and currently consist of Principals and teachers.

Again, a totally false claim and an absolute lie. There is nothing stopping Australian Education Union representatives participating in the process.

Classification Review panels

No AEU representative on this panel which means that any Principal member seeking a reclassification will be denied union representation in this process.

Another lie by the Australian Education Union. That is simply not the case. Any teacher—any member of teaching staff—can run for this position, including Australian Education Union members. Any member of the teaching profession can vote for somebody to represent them with this position—they can vote for a union member or they can vote for a non-union member, or they could simply vote for the person they think will do the job best. On school amalgamations review panels:

No AEU representation on the 10 person panel for these reviews. An astonishing decision by the Liberals which removes the union from any further process re: proposed amalgamations.

Again, another lie by the Australian Education Union. It does not remove the AEU from the process at all, but simply enables non-union members to participate in the same process that union members had exclusively as their own for many, many years.

What is interesting is that we received a number of form-style emails from union members to the Leader of the Opposition's office and, because I was very active in my children's schools as a governing council member, governing council chairman and an active member of governing councils over a 12-year period, I knew a number of the teachers who had signed those emails. I rang one of them in particular and said, 'I got your email, thank you very much for participating in the process. Can you explain to me what your concerns are?'

He said, 'Well, the union said that you're going to stop union members from participating in teachers' appeal board, classification review panels, school amalgamations review panels,' to which I was able to explain, 'That is simply not right—what we are doing is we are enabling non-union members to participate in the same process that union members have had exclusively since they were written into the act.' He said, 'That's okay, I don't have any problem with that.'

Once he understood what the amendments actually did, he did not have any problem with that. This was somebody who was motivated to write to a member of parliament that they were motivated by a pack of lies by the Australian Education Union and that is very disappointing.

It is important that we are honest when we debate education, the way the education system is run in this state. When we debate outcomes for children, we want to be honest with that debate. Unfortunately, the Australian Education Union were more interested in their self-preservation and monopoly position than what they were in having an honest debate about the merits of whether all members of the teaching profession have an equal right in voting for and being represented on those various panels.

You can understand why the Australian Education Union may have got that wrong. Just recently we saw the announcement of the Gonski funding by the federal government and on the Sunday that the Prime Minister announced the funding, David Smith, the Vice-President of the education union said, 'On these figures, we are definitely not getting a fair deal compared to other states,' he was quoted in the Sunday Mail. He goes on to say:

It's disappointing that SA—where the State Government supported the Gonski funding proposals—seems to have been taken advantage of.

Of course, the next day, Correna Haythorpe, the President of the Australian Education Union, said that it was a win for South Australian schools. Well what is it? You can understand why it is that they were so confused about their understanding of what the successful amendments in the Education Act meant as part of the consequential amendment bill. Let's be clear that the opening up of positions and the ending of the education union's monopoly is what the state Labor government refuses to accept.

Liberal amendments to the act, supported by a majority of members in the Legislative Council, were never designed to remove the Australian Education Union representative from panels and decision-making processes, and will not unless there is a democratic decision to do so. We continually hear from the president of the education union and their representatives that 70 per cent of teachers are their members.

They are certainly not behaving like an organisation that has a membership that covers 70 per cent of the organisation because, if they did, they would know that they would have nothing to worry about in supporting these amendments. They could actually be on the front foot agreeing that the democratisation of education is a good thing, and that all teachers are equal, and that all teachers should have the same opportunities regardless of their affiliation with outside organisations.

On the contrary, the bill would have broadened the representation eligibility for all teachers including members of the Australian Education Union. They would have an equal opportunity to participate as is their democratic right—union member, non-union member—the same participation rights, the same nomination rights, the same voting rights. Unfortunately, the then minister, Tom Kenyon, also sought to perpetuate this myth in committee in consideration of amendments made in the other place. The government is apparently philosophically opposed to non-union education workers having a seat on the decision-making table. For some reason, the Labor government believes that a pre-requisite for someone being qualified to be a member of the Teachers Registration Board, the Teachers Appeal Board, or the merit selection panel, must be a union member. That is the only stipulated qualification.

If you go to the act and look at the requirements, the only stipulation is that they are a union member and they are appointed by the union. They are perhaps unaware that just because you have to be a member of a union to be a member of the Labor Party as an MP or a MLC, in the real world it is a choice as to whether you join a union or not. We encourage choice, we are a party of choice. The community demands choice and that is why there are so many products available on the shelf to choose from in the supermarket—people like choice.

We are not in the business of compelling people to participate in an organisation, and for whatever reason, we are not going to question the reasons why they do not want to be a union member—whether they do not want to spend $1,000 a year in membership, or maybe they have philosophical reasons for doing so, but that is up to them. They do not need to justify why they do or do not want to be a member of a union; that is entirely up to them.

That is what we believe. People are free to choose and, funnily enough, as I said earlier, most choose not to be members of a union. Thirteen per cent of workers in the private sector choose to be union members, and 87 per cent choose not to be. However, we will not debate here the tactics used by the previous minister's own union, the shoppies' union, to bluff teenagers working their first jobs at Woolies or McDonald's into union membership, and to parting with a fee and adding to the shoppies' union power base on the floor of the Labor Party Conference in this state.

It is an extraordinary situation. My son went through it when he was working part-time at Woolies. He described the very intimidatory process by the union, with Woolies keeping half an hour free for a union induction, and students forced to sit through an induction by the shoppies' union on their induction night at Big W. It is the same routine, and you see it on their eloquently produced videos, the demonstration of one stick breaks really easily but put a whole lot of sticks together and you cannot break it.

I am sure Mao would be very pleased to see the tactics used on young children. How can they? How can children under the age of 18 have a contract put in front of them and be expected to sign it without consulting their parents? What sort of an organisation does that? They are not even of legal age and they are making them sign a contract. Unbelievable! If indeed the Australian Education Union has broad support amongst education professionals, as they claim they have, why on earth would they have fear of competition for these positions by non-union members?

The Hon. Russell Wortley in the other place, who was then the minister and is no longer the minister, undoubtedly using figures provided by the union, claimed 85 per cent membership of both teachers and principals. So, what is the problem? If it is 70 per cent, as the union says, or 85 per cent, as the knowledgeable Hon. Russell Wortley says in the other place, what have they got to worry about?

If this is about union power, unions retaining their power within schools and the education system, what have they got to worry about? Why not go to a full democratic process and be seen to be democratic? What is their problem? Either their support base is not as broad as their claims or a sense of entitlement and unchallenged power in the workplace has created a mindset out of step with changing community standards and the modern post-union shop work environment.

There appears to be an archaic 1970s compulsory union membership world to which the Weatherill Labor government is happy to consign our state's public education institutions. Well, let's do the time warp again, shall we? Let's go back to the seventies, when we saw unions heavily protected by legislation and dominating the industrial landscape because there was no choice. We are happy for the Australian Education Union to have access to all decision-making positions in education boards and panels and, if supported by teachers in a vote, the right to potentially occupy all positions allocated as employer representatives.

That is the democratic process. We are not going to discriminate against people because of the organisation they belong to. We might be concerned, of course, if it is an inappropriate organisation, but there is nothing wrong with the Australian Education Union; they claim to look after their members. However, we refuse to endorse a monopoly on these positions and we refuse to endorse the continuation of the Australian Education Union's monopoly on these positions.

The government previously rejected amendments to the Statutory Amendment and Repeal (TAFE SA Consequential Provisions) Bill 2012 on philosophical grounds. The Liberal opposition invites the government to reintroduce their previous legislation, accept it in the other place, amend it in the other place, and support basic democratic rights in a workplace. It is accepted everywhere else but, it appears, in the Weatherill Labor government and within the Australian Education Union.

If we look at the purpose of the first bill, the statutes amendment and repeal bill and now the bill that we are debating today, which replaces that bill, the TAFE SA (Prescribed Employees) Amendment Bill, let's look at what it actually does and why it is necessary. In 2002, as part of the Skills for All strategy the government introduced legislation, the TAFE SA Bill 2012, to separate TAFE SA from DFEEST and to set it up as a statutory authority governed by a board of directors. We supported this legislation.

Supporting legislation, the Statutes Amendment and Repeal (TAFE SA Consequential Provisions) Bill 2012, necessitated the opening up of acts such as the Education Act in order for TAFE to be able to manage their staff, basically. This opportunity was used by the opposition and the Hon. John Darley MLC to move amendments in the upper house which effectively removed the Australian Education Union's right to appoint employee representatives to education boards and committees such as those I mentioned earlier: the Teachers Registration Board, the appeals board, etc.

It is important to note that these amendments did not in any way restrict union access to these appointments; it merely removed their exclusive monopoly, opening up the positions to all members of the teaching profession, whether members of a union or not—fair and reasonable in anybody's mind.

The consequential amendments bill passed the Legislative Council in July 2012. Remember that this was July 2012 and it will be 1 May tomorrow, so it was quite a while ago. It has since been the subject of five deadlock conferences. The TAFE SA (Prescribed Employees) Amendment Bill is a replacement for the Statutes Amendment TAFE SA Consequential Bill 2012 and without one of these bills (today's bill or the bill the government has access to) passing the parliament, TAFE SA employees remain without official access to the Teachers Appeal Board with regard to disciplinary and other industrial matters. This was the advice that was given to me and the Hon. Jing Lee and staff members at a minister's briefing on 11 April.

Access to the Teachers Appeal Board by TAFE employees for disciplinary and other industrial matters was not the government's preferred option when this legislation was originally drafted and the department of further education's CEO Ray Garrand made it clear in his comments during the Budget and Finance Committee on 15 April that the Industrial Relations Commission was the favoured alternative. However, in order to placate the Australian Education Union—and, again, this is what we were told in a previous briefing—and to ensure smooth negotiations for the passage of the TAFE SA bill in 2012 to a statutory authority, a compromise was struck with the union. My understanding is that the then minister (minister Kenyon) caved in to the union demands to enable the Teachers Appeal Board to continue to be the board that deals with disciplinary and other industrial matters for lecturers in particular in the TAFE system.

We know that the union's motivation for that is so that it can continue to claim that lecturers must be members of the Australian Education Union if they are going to be members of a union at all, so it is their stake on union membership and their claim on who they have automatic entitlement to represent for those who choose union representation. Basically, it is another fight within the union movement. We know those sorts of things happen all the time.

As a matter of fact, I think it is the TWU at the moment that has lost about 200 members—gasfitters, I think it is—into the CEPU in a factional fight that is happening with unions at the moment. This sort of thing happens all the time. You can understand if you follow union politics why it is that the Australian Education Union finds it so important that lecturers continue to have access to the Teachers Appeal Board because it is all about holding onto their membership base and their right to represent those people over and above, say, the PSA or another public sector union.

Access for TAFE SA employees to the Teachers Appeal Board remains the preferred option of the TAFE CE, David Royle. He told the Budget and Finance Committee this, although they were neutral on their views during the consultation process and we covered the reasons for that earlier. We consulted widely with stakeholders on a previous bill to which there was no stakeholder opposition.

Of note is that those same stakeholder groups, particularly in the private sector training provisions as well as those affected by changes to the Education Act, such as principals and non-unionised educators, were supportive of the amendments limiting the Australian Education Union monopoly on employee, board and committee positions. They believed that it was long overdue and that it would be of benefit to educational outcomes and the management of the education system here in South Australia.

As I expressed earlier when I stood to speak on this bill, we are not supporting the government's bill before us today. Our advice to the government is to go back to the original bill. We understand that it can be reintroduced and passed in the lower house and that will then enable the government to achieve what it wishes to achieve and that is to deal with its employees through the Teachers Appeal Board and manage the employees of TAFE as it intended. We are not getting in the way of TAFE acting as a statutory organisation—we supported that. We believe that it is important for TAFE, in this small competitive environment, to be in control of their own leaders.

A majority decision was made in the upper house. Remember, this is a bicameral system of parliament and there are, in fact, members of parliament elected in this house through a single member electorate and there are members elected in the other place through proportional representation. The make-up of the other place and the representatives of people who voted for those members have sent a clear message to the government that it is time to democratise the Education Act in South Australia and support these amendments. They are there for the minister to grab any time she wishes and to reintroduce them into the parliament and they will have our full support and the minister can continue to do her work as the minister for further education.

The Hon. G. PORTOLESI (Hartley—Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy) (17:46): I would like to thank the member for Unley for his contribution. I appreciate and, in fact, would like the record to once again demonstrate the opposition's support for the TAFE reforms—I think that is good. I report that those reforms are progressing and progressing well.

The issues that we are debating now were never part of the original propositions in relation to TAFE reforms. It was simply an opportunity that the opposition and members in the other place took as a result of those TAFE reforms, and that has been very disappointing. However, I am determined to resolve this issue once and for all because we think it is important for the sake of good administration.

It is clear from the opposition's contribution that this is a bit of an ideological obsession on its part. For me, this is about ensuring and acknowledging the fact that the system that we have is not broken. The system that the opposition is seeking to repeal is not broken; it functions well. If you speak to the parties they will tell you that the system works well. This is not an ideological obsession for me as it is for the opposition; it is simply about good government and good administration. I am very happy to work with the opposition again in addressing these concerns. However, I suspect that we will not get very far because at the heart of their opposition is a very fundamental ideological objection. However, I thank the member for his contribution.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr PISONI: Can the minister explain to the house how TAFE has been operating without the passage of the original bill, the consequential amendment bill, and what process it had in place to deal with staff issues in particular? When I say 'staff issues' I mean issues of appeal, issues of disciplinary action and so forth.

The Hon. G. PORTOLESI: I am happy to get back to the member with a response to that question.

Mr PISONI: I would like to take you to the provision of the board fees for the TAFE board members. Mr Royle told the Budget and Finance Committee earlier this month on 15 April that the basic remuneration was set at $24,000 per annum for a board member and $37,000 per annum for the chair of the board.

Then Mr Garrand expanded on the answer to that question and told the committee that there was a retention payment of $48,000 for the chair on top of the $37,000 and a retention payment of $23,000 for each board member on top of the $24,000, taking the chair's total remuneration to $85,000 and the total for members of the TAFE board to $47,000.

Mr Garrand was asked whose decision it was to make a retention payment to board members and he answered that that was a cabinet decision. 'It's the cabinet's decision for retention allowances?' confirmed the chair, and Mr Garrand said, 'As a department, we had nothing to do with the appointment of the board or the setting of board fees. They are decisions for cabinet.'

Can the minister advise on what grounds a retention payment was established or paid to board members and the board chair, and for how long that retention payment applies? What is the process for implementing retention payments or even establishing and determining the value of a retention payment?

The Hon. G. PORTOLESI: I am very happy to come back to the member with a response in relation to that matter.

Progress reported; committee to sit again.


[Sitting extended beyond 18:00 on motion of Hon. G. Portolesi]


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