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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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South Australian Employment Tribunal (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 11 April 2017.)

Mr WHETSTONE (Chaffey) (12:04): I will continue my remarks. I was talking about the minister's announcement yesterday of $110 million of state money going into water re-use north of Adelaide.

The Hon. J.R. Rau interjecting:

The DEPUTY SPEAKER: Just a moment, member for Chaffey, the Attorney has something to say.

The Hon. J.R. RAU: I did let this go a bit yesterday, but it may well be that in terms of a grievance conversation, or indeed a supply conversation, which we will be able to have immediately after this, all the comments that are being made by the honourable member are completely relevant and completely appropriate. However, this bill is about a very narrow question about the jurisdiction of the Employment Tribunal. It is not an invitation to have a broad-ranging conversation about the issue of employment statewide—and I am not saying that that is not an important issue; I do think it is an important issue, but I just make the point to the member that there will be—

Mr Bell: An impromptu speech.

The DEPUTY SPEAKER: I am just trying to listen to what he is getting to say.

The Hon. J.R. RAU: —a debate later today and tomorrow about the Supply Bill, at which time all members will have an opportunity pretty much to say anything they want about pretty much anything.

The DEPUTY SPEAKER: So, your point is relevance, really.

The Hon. J.R. RAU: Relevance, indeed.

Mr Bell: A bogus point of order; kick him out.

The DEPUTY SPEAKER: No, we will not kick him out, but I will listen to the member for Chaffey in the light of all of that.

Mr WHETSTONE: Thank you, Deputy Speaker. I will continue my remarks. What I want to continue speaking about is jobs. The government has said that the project at Bolivar, north of Adelaide, will create 3,700 jobs and attract $1.1 billion in private investment. What I was getting to was that the skilled jobs that will be needed for the new technology that revolves around this project—

The DEPUTY SPEAKER: We do need to try to draw you back a little bit, member for Chaffey. You are drawing back to the topic, thank you.

Mr WHETSTONE: Essentially, what I want to get back to is that, on 1 July 2015, the Return to Work Act 2014 replaced the Workers Rehabilitation and Compensation Act 1986, and the SAET was established for the 'resolution of workers compensation matters, including:'

disputes about workers compensation claims

undue delays in decisions on workers compensation claims…

As an employer, I have been on the tail end of these compensation claims and I know how much arduous work—paperwork, time and effort—goes into a family-run business and of the distraction from the main game of trying to help South Australia's economy and creating jobs. However, being part of a good news story is often hampered by compensation claims, particularly the tardiness in processing claims and getting the employee rehabilitated and back into the workforce and back into production. The SAET was also established for:

disputes about an employer providing suitable employment for a worker who has been incapacitated for work as a consequence of a work injury.

Yes, that is very notable; however, when an employee has a charter, whether they want to get back into the workforce or prolong getting back into the workforce, there needs to be much more scrutiny put on the employee and not the employer, who is often doing everything in their power to make sure they have a productive employee back in their workforce, fully rehabilitated, so that they can create efficiencies within that business. According to the SAET Annual Report 2015-16:

…3,829 disputes were resolved with an average time from lodgement to resolution at conciliation being nine weeks and 25 weeks at hearing and determination.

Again, nothing happens very quickly in relation to determination and getting people back into the workplace.

Since opening on 20 July 2015, the SAET has had 4,904 applications successfully processed, resolved at conciliation; in 2015-16, 71 per cent were resolved at conciliation and 7 per cent through hearings and determination. I commend the bill to the house.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (12:10): I thank those who have contributed, albeit expansively, on the topic of this bill and I hope that it is dealt with swiftly.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms CHAPMAN: When did the Attorney become aware of issues that required legislative reform before the implementation on 1 July?

The Hon. J.R. RAU: I am advised that it came to the attention of the legislative services people in the last couple of months.

Ms CHAPMAN: Who alerted the government to the deficiencies in respect of the current law?

The Hon. J.R. RAU: Just so that it is clear for the official record, I am advised that in effect the bill has only five operational parts, it would seem: the short title, the commencement and the amendment of provisions, so I would have thought it not particularly relevant. We are really dealing with the balance of the bill in terms of doing things.

In relation to part 2 of the bill, which is the amendment of section 45 regarding pre-hearing conferences, I am advised that the issue in that space was one that was raised by the Employment Tribunal itself. As to the next matters, which are contained in the first schedule, I am advised that the first of those was raised by the AEU, and it was done so on the basis that it somehow would have limited the capacity of the jurisdiction of the Teachers Appeal Board to be adequately decanted into the Employment Tribunal.

I am advised that the balance of those, which I think are fairly described as rats and mice matters, were discovered by either legislative services or parliamentary counsel in terms of going through the legislation again, and these are in the nature of tidy-ups. That is my advice about the background to all of those.

Clause passed.

Clause 2 passed.

Clause 3.

Ms CHAPMAN: As the Attorney has pointed out, the six changes to legislation are all in clause 3. First, I wish to go to the Employment Tribunal amendment to the principal act on pre-hearing conferences. I think, Attorney, the information is quite clear in your second reading as to why it is necessary to remove that as being mandatory. My question is: in light of the bill you have just introduced to the parliament, which will transfer the government work currently managed by government to ReturnToWorkSA, does that produce any other workload on the Employment Tribunal, or are all those claims currently going to that tribunal in any event?

The Hon. J.R. RAU: Good question. The situation presently is that the government, through its various agencies and instrumentalities, operates in the same fashion as a self-insurer under the Return to Work Act. The changes we foreshadowed in the bill that has just been introduced would have the effect of ceasing the de facto self-insured status of individual government agencies and then becoming, in effect, premium paying customers of ReturnToWorkSA, albeit in a separate pool of funds in a way not dissimilar to the private sector people who are insured under the scheme.

The fact is that everybody who has a dispute under the scheme, whether they be an insured private sector person, whether they be a self-insured private sector employee, or whether they be a government employee now or post this change, will continue to have the opportunity to have any dispute under the structures of the return-to-work scheme determined in that tribunal. There should be no difference whatsoever as far as the employees are concerned.

The real difference is probably best characterised by a very summarised description of claims management that will be managed, I guess, through ReturnToWorkSA rather than through elements of individual agencies. In terms of the way in which that impacts on the individual employee of the government, they will have exactly the same rights as they have always had and those rights will be determined in this tribunal as it presently is.

Ms CHAPMAN: I have no question in respect of the Education Act, and the Equal Opportunity Act similarly. I would like to move to the Technical and Further Education Act amendment, which is described at about point 5 on that page of the bill. Here, there looks to be a minor change. I would like some explanation as to what it is salvaging and who alerted you to it.

The Hon. J.R. RAU: I thank the member for Bragg for her question. I will provide my advice in relation to this to the house. A new section 18A will be inserted in the Technical and Further Education Act 1975 on commencement of section 139 of the Statutes Amendment (SAET) Act 2016. As is currently the case under 17A of the TAFE Act 1975, in respect of the powers of the Teachers Appeal Board, section 18A was intended to have the effect that on hearing of a review concerning the termination, retrenchment, transfer or retirement of a TAFE officer, SAET may revoke the relevant decision and reinstate the officer.

To have the effect intended, section 18A(2) must be amended to replace the words 'in this section' with the words 'this division', so that the relevant phrase reads, 'Proceedings for the review of a determination or decision that has taken effect under this division', instead of under this section. It means division 2 of part 3 of the TAFE Act, which contains sections 15A, 16 and 17—the relevant provisions to terminate, retrench, transfer or retire an officer. If section 18A(2) is not amended, as intended by this bill, SAET will not have the power to reinstate a TAFE officer should it revoke a decision on review.

Ms CHAPMAN: That has answered both questions. The next question is on part 4, which is, again, an amendment to the Statutes Amendment (South Australian Employment Tribunal) Act 2016. I would like you to explain what that does and what it will protect against.

The Hon. J.R. RAU: I am advised that if you have a look at the relevant section in the definitions passage—this is in 100(1)—you will see that the word 'tribunal', for the purposes of that section, is defined as meaning the Equal Opportunity Tribunal. If you go down a little bit further to subsection (7)(b), you will see there is a reference to the tribunal.

But for this amendment, that might be actually pointing us off in the direction of the Equal Opportunity Tribunal, where in fact it is meant to mean the Employment Tribunal. The word 'tribunal' in (7)(b) is intended to mean the Employment Tribunal, not the Equal Opportunity Tribunal. But for this amendment, having regard to the definition in subsection (1), we would be mistakenly pointing the finger off towards the Equal Opportunity Tribunal instead of the Employment Tribunal, so it is just to clarify that.

Ms CHAPMAN: Looking at the brief comment you made in your second reading and the information that was provided at the briefing, I understood it was necessary to protect the lapsing of part-heard matters.

The Hon. J.R. RAU: That is right in the sense that the general import of that section, in particular subsection (7), is to enable things which were received in a part-heard manner to continue to be received as evidence—that is correct. But the only point, I am advised, is that where it says, 'Adopt any findings or determinations of the tribunal that may be relevant to proceedings before the tribunal', in that instance, if you go back to the definition, what that is actually saying is, 'adopt any findings or determinations of the Equal Opportunity Tribunal that may be relevant to proceedings before the Equal Opportunity Tribunal', and that is not what was meant. What was meant was, 'adopt any determinations of the Equal Opportunity Tribunal that may be relevant to proceedings before the Employment Tribunal'.

Ms CHAPMAN: In relation to the Equal Opportunity Tribunal, at this stage we are already removing the presiding officer of the Equal Opportunity Tribunal from setting their own rules and now the SAET is going to be undertaking that role—this is the way I understand it. Is there some reason why the presiding officer of the Equal Opportunity Tribunal should not be setting her—usually her, or of course it can be his—rules like every other tribunal?

There being a disturbance in the strangers' gallery:

The CHAIR: Would the person in the gallery sit down, please?

The Hon. J.R. RAU: My advice is that between now and 1 July, the presiding member of the Equal Opportunity Tribunal, who is a senior judge of the District Court, Justice Evans, is able to do that. From 1 July, the Equal Opportunity Tribunal's jurisdiction will be folded into the Employment Tribunal, so there is no work for it to do.

Ms CHAPMAN: Finally, the sixth rats and mice amendment here, as described by the Attorney, is to deal with the Teachers Appeal Board. In respect of that, what is being salvaged and why?

The Hon. J.R. RAU: Again, this is not dissimilar to the problem we encountered with the word 'tribunal' before. If you go to section 142 of the primary act, you would see that in subsection (1) the tribunal in this case is defined as the South Australian Employment Tribunal. If you read subsection (2) accordingly, it provides:

The Appeal Board under the principal Act is dissolved by force of this subsection (and so the commencement of this subsection brings to an end the appointment of a person as a member of the Tribunal).

That does not make any sense because 'the tribunal' means the Employment Tribunal. It should have said 'the appeal board'. Again, it is a drafting oversight.

Ms CHAPMAN: So, the consequence is that if this is not remedied, you will have accidentally got rid of the Employment Tribunal?

The Hon. J.R. RAU: If there were any risk of that, we would not be commencing that provision, but, yes, it could create all sorts of silly, unintended outcomes.

Ms CHAPMAN: I do not have any other questions, but I just want to remind the house that these are not rats and white mice amendments: they are significant. They are meritorious, and I am glad that they have been identified and are being remedied, but I would ask the Attorney that, in future, if he wants to come in here and ask us to have technical amendments, he tell us the whole of that in his second reading contribution and give that explanation not just for one or two of them that he considers to be meritorious.

Clause passed.

Remaining clause (4), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (12:28): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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