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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2024-08-27 Daily Xml
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Statutes Amendment (South Australian Employment Tribunal) Bill

Second Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Local Government, Minister for Veterans Affairs) (21:01): I move:

That this bill be now read a second time.

It is now nearly a decade since the passage of the South Australian Employment Tribunal Act 2014 established the South Australian Employment Tribunal as a one-stop shop for employment and industrial relations disputes in this state. This is an appropriate milestone to reflect on whether SAET's governing legislation is meeting its statutory obligations, particularly having regard to the practical experience of workers, employers, representatives and members of the tribunal itself since SAET was created.

At the 2022 state election, our government committed to a review of SAET. Following the election, the Attorney-General's Department invited feedback from stakeholders to inform any necessary changes to the practice and jurisdiction of the tribunal. I take this opportunity to thank the many legal practitioners and organisations on both sides of the industrial fence who took the time to provide thoughtful ideas on areas for potential improvement. Having consulted with the tribunal and considered feedback from stakeholders, overall the government is satisfied that SAET is effectively carrying out its function as a one-stop shop for industrial disputes.

SAET provides high-quality dispute resolution in a timely and efficient manner, with over 6,000 applications filed in the last financial year. SAET deals with a large and complex case load while maintaining resolution time frames significantly faster than many other jurisdictions. Many stakeholders identified SAET as a best practice model for an industrial tribunal and a preferred forum for the conduct of proceedings, having regard for its specialised knowledge and practical focus on dispute resolution.

SAET's high-quality conciliation processes and the work of its commissioners were particularly commended; however, in the course of this consultation, stakeholders did identify a range of issues arising from SAET's governing legislation, largely of a technical or procedural nature, which could be addressed to improve the efficiency of the tribunal and the experience of litigants. Consultation also raised some issues about the rules, forms and practice directions of the SAET and, while those are matters for SAET itself to determine, the President has advised the Attorney-General he intends to undertake stakeholder consultation on those issues with a view to potential improvements.

The purpose of this statutes amendment bill is to address those technical and procedural issues that arise from SAET's governing legislation and other acts conferring jurisdiction on the SAET. I commend this bill to the house and seek leave to have the remainder of my second reading speech and the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

I take this opportunity to outline some of the key features of the Bill.

Part 2 of the Bill amends the Equal Opportunity Act 1984.

This amendment provides that employment-related discrimination and victimisation complaints will be heard in SAET rather than SACAT. That is appropriate given SAET's expertise in employment-related matters, and is supported by the Equal Opportunity Commissioner.

Part 3 of the Bill amends the Fair Work Act 1994.

In 2017 amendments were made to this Act to consolidate the functions of the former Industrial Relations Court of South Australia and Industrial Relations Commission of South Australia into the new South Australian Employment Tribunal.

An unintended consequence of those changes is that uncertainty has emerged over which powers under the Act are now exercised by SAET constituted as the South Australian Employment Court, and which are exercised by SAET constituted as an industrial relations commission.

The Bill clarifies this by inserting amendments to specifically state which powers are exercised by which part of SAET.

These amendments are consistent with the orthodox principle that courts exercise judicial power to ascertain, declare and enforce existing legal rights and responsibilities; while industrial commissions exercise arbitral power to ascertain and declare what ought to be the respective future rights and liabilities of the parties.

The Bill also clarifies which proceedings are required to be dealt with at a Full Bench level, rather than by a single member. This generally applies to significant matters with implications across the state industrial relations system, such as the State Wage Case and applications to vary minimum standards for leave entitlements.

The Bill amends section 4 of the Act to make matters in an industrial instrument relating to wage parity an 'industrial matter' for the purpose of the Act. The Bill also inserts a new section 4A to provide the declared employer for public employees is an instrumentality of the Crown and capable of binding the Crown in relation to an industrial matter.

These amendments will give certainty that when the declared employer of public employees negotiates an industrial instrument on behalf of the Government, such as an enterprise agreement, workers and their representatives can have confidence that the Government as a whole can be held to that agreement.

The Bill repeals existing section 11 of the Act. This section is redundant because the same power to make declaratory judgments is also conferred by section 26A of the South Australian Employment Tribunal Act 2014. The deletion of this section is not intended to reflect any diminution in the SAET's power to grant declaratory relief.

In its place the Bill inserts a new section 11, which confers jurisdiction to settle and resolve industrial disputes. This section is inserted for the avoidance of doubt as a more express statement of the industrial dispute jurisdiction already exercised by SAET, consistent with other provisions in Chapter 2, Part 1 conferring jurisdiction on SAET. This is not intended to reflect any alteration to SAET's existing industrial dispute jurisdiction.

The Bill inserts a new section 13A to confirm that the prohibition on mandatory injunctions against the Crown under section 7(2) of the Crown Proceedings Act 1992 does not apply in respect of proceedings before SAET under this Act. This amendment applies both to SAET sitting as a court and as an industrial relations commission.

The practical effect of the amendment is to restore the longstanding position in Dunk v South Australian Health Commission that orders may be made against the Crown to remedy or restrain contraventions of industrial laws. This is necessary after the recent decision of Chief Executive, Attorney-General's Department v Montrose suggested some such orders may be prohibited by the Crown Proceedings Act.

This amendment ensures that when it comes to industrial laws and entitlements, the Crown is subject to the same principles and remedies as any other employer in the state industrial relations system.

The Bill repeals section 24 of the Act, which deals with circumstances in which legal costs may be awarded. This section is unnecessary because section 52 of the South Australian Employment Tribunal Act already provides a default position that parties bear their own costs in proceedings before SAET, subject to the provisions of a relevant Act.

The Bill amends section 34 of the Act to align the rules for the calculation of interest on monetary claims with those applied under the Commonwealth Fair Work Act 2009. The practical effect is that interest should be calculated from the date an unpaid amount falls due, rather than from the date a monetary claim is commenced in SAET.

The Bill inserts a new section 100A to provide a streamlined process for the conduct of the annual State Wage Case.

Since the referral of industrial relations powers to the Commonwealth, the State Wage Case has almost invariably resulted in a 'flow-on' to the state industrial relations system of the minimum wage decision made by the Commonwealth Fair Work Commission. Nonetheless, every year parties are required to produce evidence and make submissions to SAET prior to a determination being made.

The new section 100A will permit SAET to simply adopt the outcomes of the Fair Work Commission determination without the need to conduct a hearing or receive evidence, provided there is no objection from an interested party. If there is such an objection then SAET will be required to conduct a hearing on the issue consistent with existing processes.

Part 4 and Part 6 of the Bill amend the Magistrates Court 1991 and the Work Health and Safety Act 2012.

These amendments increase the monetary threshold under which a criminal offence can be dealt with by a Deputy President Magistrate in SAET to $1.5 million. This particularly affects prosecutions under the Work Health and Safety Act.

In practice, Deputy President Magistrates deal with most work health and safety offences and have an expertise in these matters. However, the existing monetary threshold of $300,000 means many work health and safety prosecutions may need to be referred to Deputy President Judges for hearing or sentencing instead.

This amendment will assist SAET in efficiently allocating its caseload between different judicial members, by ensuring Deputy President Magistrates can fully deal with a work health and safety prosecution up to a Category 2 level. Matters above this penalty range may continue to be referred for consideration by a Deputy President Judge.

Part 5 of the Bill amends the South Australian Employment Tribunal Act 2014.

The Bill amends section 6 of the Act to clarify the assignment of matters between SAET sitting as a court or as an industrial relations commission. These amendments are consistent with and facilitate the amendments to the Fair Work Act 1994 discussed above. These amendments will ensure matters assigned to the Court can continue to be subject to compulsory conciliation conferences conducted by commissioners.

The Bill amends section 19 of the Act to provide additional flexibility to the President in the composition of the Full Bench, by allowing Commissioners to sit as members of the Full Bench when SAET is acting as an industrial relations commission.

This recognises that Commissioners are appointed to SAET having regard to their significant on-the-ground industrial relations experience and expertise, which is essential in achieving the practical resolution of disputes. This amendment ensures that experience and expertise can be deployed as part of the Full Bench in appropriate arbitral matters.

The assignment of members in any particular case will remain at the discretion of the President, and at least 1 member of a Full Bench must always be a Presidential member. The amendment also provides that the President must be satisfied that a person has appropriate knowledge, expertise or experience relating to the class of matter before SAET before assigning a commissioner to constitute the SAET or sit as a member of the Full Bench.

The Bill amends section 43 of the Act to increase the maximum timeframe for compulsory conciliation conferences in workers compensation disputes from 6 weeks to 10 weeks.

A number of SAET decisions have now identified that, in practice, the current 6-week timeframe specified in the Act is often unworkable due to unavoidable delays in obtaining specialist medical evidence and reports.

As a consequence, it has become routine for SAET to exercise its power to extend the period for compulsory conciliation well beyond the 6-week timeframe in the Act. Indeed, SAET itself has advised that in reality the timeframe for conciliation is often closer to 12 weeks than 6.

It is essential that workers compensation matters are dealt with expeditiously. If an injured worker's claim has been wrongly determined, that needs to be resolved as quickly as possible to provide the best opportunity for the worker to access necessary compensation and support and to make a successful return to work.

However, timeframes in the Act also need to reflect the realities of litigation. There is no point setting a timeframe which is practically impossible to meet; indeed, doing so risks trivialising the goal of completing the conciliation process as quickly as possible.

The increase to a maximum compulsory conciliation timeframe of 10 weeks acknowledges the existing timeframe is often unrealistic, and sets a more appropriate target which can actually be achieved in practice.

Importantly, the increase to a 10-week conciliation period operates in conjunction with an amendment to tighten the threshold for SAET to extend conciliation beyond this timeframe, recognising that an extension of time should be the exception rather than the norm.

This Bill replaces the current broad 'good reasons' test for extending the conciliation process with a requirement that SAET must be satisfied there is a 'substantial likelihood the proceedings will resolve by settlement' if an extension occurs. That is appropriate as the settlement of disputes should be the fundamental focus of the conciliation process.

The Bill amends section 44 of the Act to provide that the procedure for referral of matters for hearing and determination is subject to the provisions of another relevant Act. This recognises that some legislation conferring jurisdiction on SAET may provide for alternative procedures.

The Bill amends section 51 of the Act to provide for the confidentiality of communications between non-legally qualified representatives and members in proceedings before SAET.

It has been common throughout Australian history for non-legally qualified officers and employees of industrial associations–both business associations and trade unions – to represent their members in industrial courts and tribunals.

That is also the case in SAET, with several Acts expressly providing for such a right of representation. This includes in workers compensation and industrial proceedings.

While it may be thought communications between a representative and a member would be confidential, the decision of Davies v Woolworths Group Limited has identified such communications may be disclosed to opposing parties if a representative is not a legally qualified.

Disclosing confidential communications between a representative and a party to proceedings would substantially undermine the important representative function of industrial associations which has been recognised in South Australia for decades.

The amendments in this Bill ensure that where a party is represented by a non-legally qualified person authorised by legislation to appear before SAET as a representative, documents and communications will be subject to similar confidentiality rules as apply between legal practitioners and their clients.

The Bill amends section 65 of the Act to allow SAET, on application, to expand the scope of issues in dispute in workers compensation disputes where the Tribunal is satisfied it is in the interests of justice that a question should be determined as part of the proceedings.

Workers' compensation disputes are a unique jurisdiction. Proceedings are conducted using informal documents and without detailed applications or pleadings. It is common for the issues in dispute to ebb and flow as new medical and factual developments arise while a dispute is on foot, and as the parties' cases are sharpened closer to hearing.

The jurisdiction is also unique in that the relationship between an injured worker and a compensating authority like ReturnToWorkSA often persists over a period of years and is rarely confined to a single issue. A workplace injury may result in a cluster of related claims which arise over time; some for weekly payments, some for medical expenses or surgery, some for return to work services, and some for lump-sum compensation.

While the Act currently allows the issues in dispute in proceedings to be enlarged with the consent of the parties, concerns have been raised that one party's unreasonable refusal of consent can result in unnecessary duplication through the filing of separate applications about related issues and, ultimately, increased cost and delay.

The aim should be for all relevant issues in dispute between a worker and a compensating authority to be heard and determined in the same proceedings insofar as just and appropriate; taking into account matters such as the objects of the Tribunal, the need for procedural fairness, and case management principles.

That approach provides the best opportunity to achieve finality in litigation and allow the worker to move on with confidence in their affairs and the ability to focus on their recovery; rather than the dispiriting prospect of completing one proceeding before SAET only to then face further proceedings arising from ancillary disputes which could have been resolved simultaneously.

The amendment in this Bill will ensure that if the parties cannot agree on which issues should be dealt with in proceedings, SAET has the ability to supervise the litigation and ensure related issues are dealt with together insofar as just and appropriate.

This means, for example, that SAET can determine it is appropriate to deal with both the question of whether the worker's injury arises from their employment, and whether the worker is entitled to a particular surgery or medical expense related to injury, in the same proceedings.

The Bill amends section 86 of the Act to significantly streamline the process for the enforcement of monetary orders made by SAET.

Currently, in order to enforce an order made by SAET, a party must go through a labyrinthine legal process. Having already won their case in SAET, if a debtor refuses to comply with an order the party must first seek to prove the order as a debt through a civil claim in the Magistrates Court or District Court.

The purpose of this process is to effectively convert the order of SAET into an order of the relevant court. This provides a forum where a debtor can seek to relitigate the substantive issues raised before SAET. Only once the debt has been proven in a civil claim can a party proceed to commence an application to enforce the judgment under the Enforcement of Judgments Act 1991.

The amendments in the Bill will remove these unnecessary barriers to the enforcement of SAET decisions, and hopefully improve compliance with orders made by SAET generally. A worker who has been underpaid and pursued that underpayment to receive an order from the court is entitled to expect the order will be complied with.

Under these amendments, where a monetary order is made by SAET sitting as a court, it will no longer be necessary to prove the order as a debt. Instead, the order will be immediately enforceable as if it were a judgment of the Magistrates Court or District Court.

The amendments also promote access to justice by providing that where a non-legal practitioner representative, such as an officer or employee of an industrial association, is entitled to represent a party before SAET then they may also represent the party in proceedings under the Enforcement of Judgments Act.

The Bill amends section 92 of the Act to permit SAET to make rules providing for the suspension of inactive proceedings.

It is common for workers compensation proceedings, in particular, to involve periods of inactive litigation, such as where the parties are awaiting receipt of a specialist medical report or confirmation of a worker's prognosis following surgery.

This amendment will support SAET in the efficient management of its workload by allowing specific rules to be made dealing with these circumstances, such as placing proceedings in a suspended matters list pending the resumption of active litigation.

In conclusion, it is essential all parties in our industrial relations system – workers, employers, and compensating authorities like ReturnToWorkSA – can have confidence in the high quality, independent dispute resolution process SAET provides.

Continuous improvement is always welcome, and the Government will monitor the practical effect of the amendments in this Bill and consider any feedback from stakeholders on issues that may arise, to ensure SAET can continue to deliver the best service for the entire community.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Equal Opportunity Act 1984

3—Amendment of section 95B—Referral of complaints to Tribunal

This clause amends section 95B to provide for referral of matters to SAET (rather than the Tribunal) in certain circumstances.

Part 3—Amendment of Fair Work Act 1994

4—Amendment of section 4—Interpretation

This clause—

makes an amendment consequential to clause 5

amends the definition of industrial matter to specifically include matters in an industrial instrument relating to wage parity.

5—Insertion of section 4A

This clause inserts a new section 4A as follows:

4A—Meaning of employer for public employees

This provides that the employer for public employees is the body or person (not being a Minister) declared by regulation to be the employer of the employees (and the employer is an instrumentality of the Crown and is capable of binding the Crown).

6—Amendment of section 8—Jurisdiction to interpret awards and enterprise agreements

This clause provides that jurisdiction conferred under section 8 of the Act vests in SAET constituted as the South Australian Employment Court.

7—Substitution of section 11

The current section 11 is deleted because it is unnecessary. This clause substitutes a new section 11 as follows:

11—Jurisdiction to settle and resolve industrial disputes

Jurisdiction to settle and resolve industrial disputes is conferred on SAET constituted as an industrial relations commission.

8—Amendment of section 12—Orders to remedy or restrain contraventions

This clause provides that jurisdiction conferred under section 12 of the Act vests in SAET constituted as the South Australian Employment Court.

9—Amendment of section 13—Advisory jurisdiction

This clause provides that jurisdiction conferred under section 13 of the Act vests in SAET constituted as an industrial relations commission.

10—Insertion of section 13A

This clause inserts a new section 13A as follows:

13A—Mandatory injunctions

Section 7(2) of the Crown Proceedings Act 1992 does not apply in respect of proceedings under the Act (other than proceedings under section 10).

11—Insertion of heading

12—Insertion of heading

These sections divide Chapter 2 Part 2 into Divisions.

13—Repeal of section 24

Section 24 is repealed.

14—Amendment of section 34—Award to include interest

An award of interest, or lump sum instead of interest, must take into account the period between the day the relevant cause of action arose and the day the judgement is delivered.

15—Insertion of Chapter 3 Part A1

This clause inserts an interpretative provision as follows:

Part A1—Interpretation

65—References to SAET

A reference to SAET in Chapter 3 is a reference to SAET constituted as an industrial relations commission.

16—Amendment of section 69—Remuneration

This clause removes the requirement for SAET to establish a minimum standard for remuneration at least once in every year (which is consequential to clause 26) and provides that the minimum standard for remuneration is established by a Full Bench of SAET.

17—Amendment of section 70—Sick leave/carer's leave

18—Amendment of section 70A—Bereavement leave

19—Amendment of section 70B—Family and domestic violence leave

20—Amendment of section 71—Annual leave

21—Amendment of section 72—Parental leave

22—Amendment of section 72A—Minimum standards—additional matters

23—Amendment of section 72B—Special provision relating to severance payments

These clauses provide for various minimum standards to be established or reviewed by a Full Bench of SAET.

24—Amendment of section 79—Approval of enterprise agreement

This clause provides that an enterprise agreement may be referred to a Full Bench of SAET for approval in certain circumstances.

25—Amendment of section 90—Power to regulate industrial matters by award

This clause allows SAET to vary an award about remuneration and other industrial matters and removes an obsolete note..

26—Insertion of section 100A

This clause inserts a new provision as follows:

100A—State Wage Case

A Full Bench of SAET must, within 3 months of the conclusion of the Annual Wage Review conducted by the Fair Work Commission, conduct an annual review of the minimum standard of remuneration under section 69, minimum wage rates in awards and minimum work-related allowances and loadings in awards.

27—Amendment of section 108—Question to be determined at the hearing

This clause updates a cross reference.

28—Amendment of section 120—Application for registration

This clause provides that applications for registration under Chapter 4 Part 2 are to be made to SAET constituted as an industrial relations commission.

29—Amendment of section 125—Alteration of rules of registered association

This clause provides that SAET constituted as an industrial relations commission can register an alteration of rules.

30—Amendment of section 127—Orders to secure compliance with rules etc

This clause provides that certain applications under section 127 are to be made to SAET constituted as the South Australian Employment Court.

31—Amendment of section 130—De-registration of associations

This clause provides that SAET constituted as an industrial relations commission can de-register an association.

32—Amendment of section 132—Application for registration

This clause provides that applications for registration under Chapter 4 Part 3 are to be made to SAET constituted as an industrial relations commission.

33—Amendment of section 134—Registration

This clause is consequential to clause 32.

34—Amendment of section 135—De-registration

This clause provides that SAET constituted as an industrial relations commission can de-register an organisation or branch.

35—Amendment of section 138—Limitations of actions in tort

This clause provides that applications under section 138 are to be made to a Full Bench of SAET constituted as an industrial relations commission.

36—Amendment of section 140—Powers of officials of employee associations

This clause provides that in exercising powers under section 140(4) SAET must be constituted as an industrial relations commission.

37—Amendment of section 219D—Compliance notices

This clause provides for the making of applications to SAET constituted as the South Australian Employment Court for a review of a notice issued under the section.

38—Repeal of section 230

This section repeals section 230.

39—Transitional provisions

This clause provides transitional provisions related to the Part.

Part 4—Amendment of Magistrates Court Act 1991

40—Amendment of section 9—Criminal jurisdiction

This clause increases the jurisdictional limit applicable in the case of an offence under the Work Health and Safety Act 2012 being heard by an industrial magistrate to a fine of $1,500,000.

41—Transitional provision

The new limit proposed under clause 40 will apply in relation to proceedings commenced in the Magistrates Court after the commencement of that clause.

Part 5—Amendment of South Australian Employment Tribunal Act 2014

42—Amendment of section 6—Jurisdiction of Tribunal

This clause removes the current section 6(2)(b)(ii) and provides that if a matter is assigned to the South Australian Employment Court, the Court may direct, or an Act or the rules may provide, that the matter be the subject of a compulsory conference in an industrial relations commission.

43—Amendment of section 6A—Conferral of jurisdiction—criminal matters

This clause increases the jurisdictional limit applicable in the case of a minor indictable offence heard by a magistrate of the South Australian Employment Court to a fine of $1,500,000.

44—Amendment of section 13—Appointment of Deputy Presidents

This clause requires consultation with the President before an appointment is made under the section.

45—Amendment of section 19—Constitution of Tribunal

Under this amendment a Full Bench of the Tribunal may, when acting as an industrial relations commission, consist of 3 members of which at least 1 must be a Presidential member. In addition it is provided that if a non-Presidential member is to constitute the Tribunal, or is to be a member of a Full Bench of the Tribunal, for the purpose of dealing with a matter, the President must be satisfied that the member has appropriate knowledge, expertise, or experience relating to that class of matter.

46—Amendment of section 43—Compulsory conciliation conferences

A conciliation conference must be attended by persons with sufficient decision-making authority to fully participate in settlement discussions. The amendments also make provision in relation to the maximum period over which a conference may occur and extension of such a period in certain cases. The amendments also make it clear that the conference may enlarge the scope of proceedings in accordance with section 65.

47—Amendment of section 44—Referral of matters for hearing and determination

This clause makes a minor clarifying amendment to section 44.

48—Amendment of section 51—Representation

This clause allows protection equivalent to legal professional privilege where a person is entitled to be represented in the Tribunal by a person who is not a legal practitioner.

49—Substitution of section 65

This clause substitutes a new section 65 as follows:

65—Power to enlarge scope

Under the proposed new provision the Tribunal may enlarge the scope of proceedings either with the consent of all parties or, in the case of proceedings are under the Return to Work Act 2014, where (on application and after giving all parties an opportunity to be heard), the Tribunal is satisfied it is in the interests of justice that a question should be determined as part of the proceedings.

50—Amendment of section 67—Appeals

This clause amends section 67 to provide that an order for costs may only be made on an appeal to a Full Bench of SAET if the SAET Act, or a relevant Act, specifically provides for the making of such an order.

51—Amendment of section 72—Functions of registrars

This clause provides for a review of an exercise of administrative power by a registrar.

52—Amendment of section 86—Enforcement of decisions and orders of Tribunal

This clause makes provisions in relation to recovery of monetary orders made by the Tribunal.

53—Amendment of section 91—Disrupting proceedings of Tribunal

This clause amends section 91 so that the section will also apply where a person contravenes or fails to comply with an order for payment of money.

54—Amendment of section 92—Rules

Rules may provide for the suspension of inactive proceedings.

55—Transitional provisions

This clause provides transitional provisions.

Part 6—Amendment of Work Health and Safety Act 2012

56—Amendment of section 230—Prosecutions

This clause increases the limit on sentencing for an indictable offence against the Act charged on complaint in the South Australian Employment Court to a fine of $1,500,000.

57—Transitional provision

The new limit proposed under clause 56 will apply in relation to proceedings commenced in the South Australian Employment Court after the commencement of that clause.

Mr TEAGUE (Heysen) (21:05): I indicate that I will be the lead speaker for the opposition and indicate opposition support for the bill. The minister is right to highlight that the bill arrives here now a decade on from the establishment of the tribunal. It is well to reflect at this time on the remarks of the then deputy premier in June 2014, in the course of the debate that accompanied the introduction and subsequent passage of the bill to establish the SAET in 2014. I reflect on those opening remarks of the Hon. John Rau in his capacity at that time as attorney-general.

He observed that the jurisdiction of what was to be the new tribunal would be to review certain decisions arising from the Return to Work scheme that was then planned to commence the following year. He observed that the South Australian Employment Tribunal would have similar functions, powers and operating approach as the then newly established Civil and Administrative Tribunal—and more about that in a moment. He observed that it would provide efficient and cost-effective processes for all parties involved, act with as little formality and technicality as possible and be flexible in the way that it conducted its business.

The tribunal was established further with the objective to be transparent and accountable, headed by a President who would hold concurrent office as a judge of the Industrial Relations Court. The Attorney, as he then was, went on to advise the house that at that time the workers compensation tribunal dealt with disputes about claims for workers compensation under the Workers Rehabilitation and Compensation Act of 1996, and the establishment of the new Return to Work scheme was a driver for requiring a fresh approach to the resolution of disputes arising under the new scheme.

The new scheme therefore was designed with less moving parts, as the Attorney described, which he anticipated would provide injured workers and their employers with greater certainty regarding their entitlements and obligations under the legislation. It was foreshadowed by the Attorney at that time that the government anticipated that the rate of disputation should decrease significantly, and those disputes that did arise that could not be resolved through reconsideration by the corporation would be dealt with by the newly to be established Employment Tribunal.

The observation is made that the bill was introduced concurrently with the Return to Work Bill 2014. The balance of that contribution in June 2014 is there for relevant reference as we come to now this decade down the track and the consideration of this amendment and reform bill, which covers a whole range of matters, largely to improve in terms of the dispatch of those objects in light of the experience of now many years down the track.

For completeness in terms of making some observations about the debate back at the instigation, back at the commencement of the tribunal, I refer to the Leader of the Opposition, as he then was, Steven Marshall, in leading the debate for the opposition, indicating the opposition's committed support for the establishment of the tribunal and for the associated reforms.

It was the opposition's view at that time, and it remains the opposition's view, that these tribunal processes, permitting, as they were expected to do, to assist businesses in South Australia to deal with disputation in a much more efficient way, were something that was supported at the beginning and, of course, a decade down the track. Sensible reform in relation to the jurisdictional functions of the tribunal is supported by the opposition. Those are remarks of the Leader of the Opposition, in particular in September 2014, and further contributions to the debate on 24 September 2014. I commend those contributions as well as others who contributed to the debate now almost exactly a decade ago.

In indicating that I will take the same sort of approach as the then Leader of the Opposition did in 2014 in not staying all that very long in the debate. I will just take a moment to acknowledge the very thoughtful and thorough work of the Law Society in its consideration of the sensible reforms that can be made in light of some of the challenges that the tribunal has faced over that time. On many occasions with legislation such as this, I have had occasion to thank and recognise the work of the Law Society and those members who participate in specialist committees that are dedicated to providing a thorough, thoughtful response to legislation. This is particularly true on this occasion where an amendment bill is coming along really as an across-the-board review of what can be done to improve the functioning of the tribunal.

I note that, perhaps mercifully, the minister, in providing us the benefit of the government's second reading explanation, obtained leave to incorporate the balance of what was a rather lengthy contribution from the Attorney in the other place when the bill was debated there. I certainly commend that to members when it becomes available overnight, because it sets out really comprehensively the scope and subject matter of the legislation. I will not stay to rehearse all of that. Suffice to say that the bill has been before the parliament in its present form since early this year, when it was introduced in the other place back in February—and so here we are in August.

I mentioned the contribution of the Law Society. That is expressed primarily by the letter of the then President of the Law Society, Justin Stewart-Rattray, to the Special Counsel to the Chief Executive of the Attorney-General's Department. That letter to Ms Steph Halliday is dated 25 November 2022 and it gives a clue as to the work the government did over that first year.

Without reading the entirety of the contents of the Law Society's contribution at that time, I indicate that it is a thoughtful and thoroughgoing treatment of both the successes and the challenges, if I might describe it that way, up to that time, and I know the contribution of the Law Society has informed the bill as it stands.

It is a letter that runs to 49 paragraphs. It is an eight-page letter and covers a wide range of subject matter. It also makes particular reference to the South Australian Employment Tribunal's own key publication in 2019, entitled 'Proposed approach to managing Return to Work Act 2014 cases at hearing and determination'. It encloses, further, four letters, each of them from the Law Society and addressed in the main to the relevant judicial officers over the course of the decade or so, including in the years prior to the establishment of SAET. Those are all of particular usefulness as well.

I might make more particular reference to the 30 October 2019 letter to the Hon. President Justice Dolphin, which is a 20-page letter from the then President of the Law Society, Amy Nikolovski, addressing the Law Society's considered views broadly in relation to the proposed approach to managing the Return to Work Act 2014 cases at hearing and determination.

Just in terms of those references—that is, the 25 November 2022 letter and each of those enclosures that I have mentioned, particularly that 30 October 2019 letter—it is apparent that the Law Society has been keenly engaged in the process of considering the circumstances of the establishment of the tribunal, its operation on a year-to-year basis in terms of engagement with the responsible judicial officers and, in turn, its engagement with the government.

Turning just briefly then to the topics that are the subject of the Law Society's concern in November 2022, I note the Law Society's observation that, in its view, the tribunal is efficiently disposing of the litigation before it, in the main. But there is really quite a pointed reference to its history of that having not always been the case. The Law Society points to significant resourcing issues as having been a challenge, the lack of resourcing that has led to delays, various particular matters of evidence and process in relation to affidavits, and issues in relation to the enforcement of SAET orders.

The Law Society also refers to remote attendances, and in that respect I will draw particular reference to the Law Society's observation that, at that time, it was generally offering:

…in-principle support for the use of video conferencing and like technology to facilitate remote attendances in various forums.

I am quoting from the letter here:

However, the Society considers it would be desirable to have some level of consistency with how remote attendances and such technology is utilised in the Tribunal.

So it has turned its mind to how those matters of facilitating remote attendances and consistency might be accommodated. There is reference to the obligation on the positive duty on employers to provide suitable work for injured workers in the operation of section 18 of the Return to Work Act 2014, and the society makes particular reference to its related submission earlier in the year in that regard. Then there are a number of other matters that are raised in the balance of what is a, as I have said, thoughtful and thoroughgoing feedback in relation to the review.

So we are now dealing with a decade-on reform bill. The bill, in providing for the appropriate jurisdiction and functionality of the tribunal, makes amendment to several acts, some of which have been referred to and I think, in the balance of the minister's contribution, we will see a treatment of how those amendments are provided for in the bill. Suffice to say that we have part 2 amending the Equal Opportunity Act; part 3 amending the Fair Work Act; and part 4 amending the Magistrates Court Act, and that is specifically in relation to the civil jurisdiction of the relevant magistrate—extending that quite significantly. Part 5 amends the South Australian Employment Tribunal Act 2014 itself, and part 6, finally, amends the Work Health and Safety Act 2012.

As I have indicated, without then trawling through those changes in their entirety, I think I am in a position to commend to members of the house the contribution of the minister and the balance of that contribution that will find its way onto the Hansard. With those brief remarks, emphasising, as I do, the valuable contribution of the Law Society in this matter in particular, I commend the bill to the house.

Mrs PEARCE (King) (21:27): I rise to speak in support of the Statutes Amendment (South Australian Employment Tribunal) Bill, which marks the delivery of yet another election commitment, that being a commitment to review the practice and jurisdiction of the South Australian Employment Tribunal. The South Australian Employment Tribunal is responsible for resolving workplace-related disputes and issues. It is a statutory independent tribunal that is responsible for resolving return-to-work disputes, resolving SA employment and industrial disputes, regulating South Australia's industrial awards agreements and registers, hearing SA work-related prosecutions, and also resolving South Australian dust disease matters.

In each of the cases before it, SAET aims to reach a fair and just outcome as quickly as possible, either through agreement at a conference conciliation or mediation, or through a decision at a hearing. Our review was to ensure it is effective and efficient and to empower it to enforce its decisions without going through other courts.

The consultation undertaken as part of this process was undertaken by the Attorney-General's Department, which engaged with trade unions, the business community and also legal organisations throughout. Now we have the bill before us, which is relatively simply designed, but it is designed in such a way that will help improve the efficiency and to make the process smoother for the litigants before it.

Throughout the consultation I understand that the opinions of stakeholders across sectors was that SAET was identified as a best practice model for an industrial tribunal. I also understand that it handles a caseload that sits around 6,000 applications per year. Having such a high-quality tribunal with processes and commissioners who hold a great level of respect with all who engage with them is a promising start. All that is needed is a bit of fine-tuning to help keep them operating at a level that is acceptable to ensure that fair and just outcomes are reached as quickly as possible.

In improving the efficiency of the state's Employment Tribunal, this bill also covers important reforms. Among these are the removal of loopholes that had been relied upon by the likes of the previous government to avoid complying with enterprise agreements that had been negotiated with public sector unions. Amendments to the South Australian Employment Tribunal Act will also now see that internal documents prepared by union representatives when representing members before the SAET are treated in the same way as that of a lawyer. Additionally, the bill will also move amendments to allow commissioners of the SAET to sit as members of the Full Bench in industrial-related matters.

This amendment bill is packed full of reforms that will make life easier for all who interact with SAET, but what I am most excited for within this bill are our amendments to the Fair Work Act that make it clear that this same job, same pay terms can be included in agreements under the state system, to say that where we have two people doing the same job it is only fair that they are getting paid the same amount to do it. For workers who are covered under the national Fair Work system, the same job, same pay reforms have been proving themselves very effective in ensuring that workers hired under labour hire companies are paid the same way as those employed directly under an enterprise agreement with their host employer.

This is so important because it is only right that every employee has a right to secure and stable employment, and part of this is ensuring that if they are turning up to work and are working alongside others doing the same job, they are not being undercut and paid less for doing the same amount of work. This has also helped to defend against businesses forcing their workers into dodgy labour hire contracts designed with one intent in mind: to exploit workers out of their hard won and well-deserved pay and conditions.

Ultimately, the impact of this bill will be that it will make improvements to the process for those who are involved in our state's industrial relations and workers compensation system. As a member of parliament who strongly believes in doing what we can to build a better, fairer and more equitable future for all, I commend this bill to the house.

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Veterans Affairs, Minister for Local Government) (21:32): I thank the members for their contributions and particularly note the support for the passage of this bill by the lead speaker for the opposition, the member for Heysen, and also note the contribution of the member for King. In doing so, I commend the bill to the house. I seek leave to continue my remarks.

Leave granted; debate adjourned.

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