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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-03-24 Daily Xml
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PUBLIC SECTOR BILL

Second Reading

Adjourned debate on second reading.

(Continued from 18 February 2009. Page 1357.)

The Hon. D.W. RIDGWAY (Leader of the Opposition) (20:59): I rise to speak to the Public Sector Bill, which was received from the House of Assembly and which has had some significant debate, in both the parliament and the media. In starting my comments, I would like to address the history of our public sector, not particularly this piece of legislation, and I will make just a few comments in relation to the public sector.

The public sector is based on a quality of service delivery that is independent of private motives or prejudices of individuals or the organisation delivering the service. It is about social justice, social equity, community responsibility and democratic accountability. Yet, the distinction between the public and private sectors has become blurred in recent years, and the essence of this bill is the removal of powers from the independent commissioner with the final say going to the Premier.

The public sector has played a key role in our economic and social development over the past 150 years. Soon after the state achieved self-government, the public sector was a major driver of economic and social development. Infrastructure projects financed with the issue of government bonds attracted considerable support from British investors and, by the end of the 19th century, the public sector share of total investment had grown to about £11.3 million, exceeding the total private investment of about £8.7 million.

The opportunities through partnership between the state government and South Australians were extensive. Australia's first government-owned railway was completed in South Australia in 1856 to support the movement of goods between Adelaide and Port Adelaide. By 1860, the railway had been extended to Gawler and Kapunda.

At this time, the South Australian rail department was a major public employer with more than 3,500 employees by 1906. During the 1870s, the government extended the rail and telegraph linkages completing the 2,600 kilometre overland telegraph from Adelaide to Darwin in 1873 and the 1,200 kilometre link between Port Augusta and Eucla in 1876.

The government has built strong institutions by investing public funds and developing a highly skilled public sector. The Playford government's industrialisation of South Australia was driven by efforts to promote and attract new investment. The Housing Trust played a key role in underpinning the new industrial development, providing some 66,000 relatively cheap houses for workers and assisting in the construction of some 50 factories by 1965.

The public sector allows unpoliticised decisions to be made, and this bill that the government proposes risks changing that. Selfless determination is needed to further develop the state, and that is not the intent of this bill. South Australia's best interests will not be realised without political neutrality within our public sector.

Having been a small business operator in my former life before coming to parliament, in very small terms but having had some 30 employees at various times, I know that the success or failure of our particular business certainly hinged on the leadership that the managers or the owner—in fact, it was me a lot of the time—showed and the morale that you actually build within your team.

I do not believe that it is any different in a modern public service: it is about leadership. It is about the leadership of our parliament, the government of the day, the premier and his or her ministers and, likewise, also, the members of the parliament whether it is the opposition members or members on the crossbenches. We show leadership and, if you like, we actually build the morale with a respect for the Public Service that it deserves.

Notwithstanding that, occasionally we may have some personal issues not with a state public sector person but somebody from the tax office wanting to speak to us or a police officer issuing a speeding notice or some other compliance issue which, at the time, we find frustrating and very annoying, but it is really not the fault of the person delivering that bad news.

It is actually about those of us in this place who make the rules and make the laws. We should never hold accountable the people who deliver those messages to us. In fact, we in here, perhaps, are the ones who should be held accountable. A modern public service is really about a partnership between the community and delivering services, those of us in here who are the lawmakers and, of course, the Public Service that delivers the policies of the government of the day without fear or favour.

I think it is important to recognise the contribution made by the Public Service. Interestingly, the figures I received today show that some 79,000 full-time equivalent employees are working in the public sector, and I think there are about 98,000 additional workers. If you look at the total employment numbers for our state—and some of these figures have been quoted by the member for Goyder, Steven Griffiths, the shadow minister in the other place who has carriage of this legislation—you see that some 780,000 people are employed in South Australia and that the public sector employs a significant number of people, without whom our state would certainly cease to function.

As I said earlier, it is about building morale and showing leadership to the community, and there needs to be some form of mutual respect between those of us who make the rules and the public sector, which applies the rules or provides the services to members of the community. Having been a member of a rural and regional community, although not a particularly remote one, I believe that public sector employees play a very important role in our regional communities, no matter how they are employed, because they often remain within those communities for long periods of time often in very secure employment. That then affords them time to become involved with community organisations, whether it be sporting clubs or other volunteer organisations, and they certainly provide a strong base to a lot of regional communities.

In the past 12 months or so, we have seen, with the government's shared services initiative, a range of positions being removed from our rural and regional communities, which not only has impacted the individuals who have lost those jobs but also there is the flow-on effect on those rural communities. Often you will find that the partner and the family of the person who has lost their employment are put under pressure, and sometimes they have to leave those communities. Of course, once they leave those communities, fewer children are enrolled in the schools, which means that services are withdrawn from the schools, and so it flows on through the community into areas, such as health care, dental services and a whole range of services. It not only has an impact on regional and rural communities in terms of the number of services members of the Public Service provide in a volunteer capacity but it also has an effect on the community when those people have to leave the community.

Unfortunately, I think that in the past we have not respected a lot of the people employed in the public sector in rural areas in relation to benefits that we might have provided to them. I know the shadow minister for police has referred to the provision of police housing and to benefits and packages designed to attract police officers to regional and remote areas, and it is an issue that is constantly being raised with me. Again, I think that is part of the respect that can be shown for the services they deliver.

I intend to make a range of general comments about the legislation, and I indicate that the opposition has a number of amendments on file. We are also aware that the government and I think the Hon. Ann Bressington have some amendments on file, and I suspect the Family First Party will also have some amendments at some stage. I will make some general comments about the bill relating to particular areas of interest to the opposition, and then I will be making a much more detailed contribution in relation to our amendments and other proposed amendments as we journey through the debate.

It is interesting to note that this bill was put out for consultation, with an issues or position paper being released some time late in November 2007, and then, finally, I think it was open for public consultation until January 2008.

It is interesting that it then takes almost 12 months for the government to come to the parliament with a bill—which I think was in November last year. I think it was tabled just as the parliament got up for the summer break. I think it is on the PSA's website. Traditionally, the minister has a particularly good relationship—and a sense of wanting to consult—with the major sector that any legislation affects. I have been advised that Ms Jan McMahon has met with the minister (the Hon. J. Weatherill) only once on this bill, and that was about a week ago. This is a key piece of legislation, and the government has been determined to see it through the parliament. One would think that the minister would work more closely than he has with the key stakeholders. I have copies of letters and correspondence in relation to the meeting they had last week, and I may refer to some of that during the committee stage of the bill.

It really does surprise me that it took that long for the minister to speak to the PSA. In particular, within this piece of legislation, the opposition is broadly supportive of a range of measures mentioned in the legislation but, in some areas, we think they have gone a little too far. I will certainly talk about some of those issues as we continue this discussion.

I would like to talk briefly about the election policy. The election policy of the opposition at the last election was a reduction of some 4,000 members of the public sector through attrition. There were not going to be any sackings or terminations: it was just going to be through attrition. Naturally, during that time, we had a very poor election result, and I am sure that that policy was certainly one of the areas on which we were harshly judged. The government of the day—Premier Rann, Treasurer Foley, and others—was quite critical of that policy and, in fact, it ridiculed the opposition after the election because of it.

It is interesting to look at some figures; they confuse me somewhat. Since 2002, according to the Commissioner for Public Employment, the numbers have increased by some 17,000 positions. I find that a little hard to understand, and I think Steven Griffiths made some similar comments. This is not directed at the people who have put their hand up, applied for a job vacancy and won that position. I am not directing these comments at them. If one looks at the budget figures over the past seven years provided by Treasury and the Treasurer, we think the estimate is that somewhere around 3,000 extra public servants were to be employed.

I do not want the minister to hide behind cabinet confidentiality, cabinet documents and cabinet secrecy. One of the questions I want to ask the minister is: if you have a budget that you present to the parliament saying that, over a period of time—let's say seven budgets—you are going to increase the public sector by 3,000 and it actually increases by 17,000, how does that happen? What the minister has done now is put a whole range of people in work, and he did not intend to give them a job.

As I have said, this is certainly not directed at those people who have answered a job advertisement, gone through the interview process and won a job. I am sure they are working extremely hard and diligently in the best interests of the state. However, it interests me to know how this can happen, and I would like the minister to address that matter when he sums up the debate. A budget is tabled every year, and we know that revenue changes and expenses change, and you would assume that there would be some fluctuations in employment. Things happen and there are certain demands, promises or commitments made, like the extra 400 police, although we know that the government will not deliver the 400 police before the next election.

I would like the minister to answer: how does it happen that 14,000 extra positions have been filled? It is interesting that members of the government, and backbenchers in particular, have expressed concerns to me (privately) that they cannot understand how that can happen.

Last year, after the mid-year budget review, the Treasurer announced that there would be 1,600 reductions in positions over the forward estimates. When you look at that you think: this is a party that attacked the opposition for daring to talk about reductions over a period of time by natural attrition, but you have to look at the circumstances now—the pressure, the uncertainty and the stress, if you like, that that puts on the public sector.

We are now in a shrinking job market. We have had booming times—indeed, possibly the best economic times this country has ever seen. Certainly in the post-wartime it is about as good as we have ever seen, but we are now entering a shrinking job market and we have growing unemployment. You then find—when there is a threat or a plan or policy to reduce Public Service numbers—that there are not the jobs out there for them to go to.

We then see the good hardworking families of South Australia coming under that pressure. We also know that if, for instance, one of the breadwinners in a family loses their job, financial hardship is one of the major causes, if not the major cause, of relationship breakdown in our community. So, it is in a very difficult economic time that we are seeing a government policy of reducing the number of those positions, and it is really quite stressful.

There are some questions that I hope the minister and the government have the courage to answer. How did they let the public sector grow as much as it did during those buoyant economic times when there was a very robust job market and there was an opportunity for people to seek employment elsewhere in our community? How did they allow that to happen? Now, of course, we find that with this bill they wish to remove tenure. We have a shrinking job market and therefore a much more difficult environment for anybody who loses their employment, whether it is in the public or private sector, to gain alternative employment.

One of the important points that the bill raises, and I think it is actually a very useful one, is to have, if you like, a more robust review capacity or a performance management system. I see that as a really important component of this legislation: to have an appraisal or performance management system, but it has to be consistent across all sectors.

I think that, for our Public Service to really deliver quality outcomes and a quality service to our state, there needs to be consistency across every agency; there cannot be different standards applying from one to another. So, I certainly see that that is an important step forward.

The bill recognises that agencies have to put in place an effective performance management system, and I think that is a really important way for any organisation—private, public or whatever—to be able to critique their performance. It may also identify areas where perhaps there is a chance that they are a little short on skills in a particular area, in a non-threatening way, and to look for ways for people to upskill themselves and to end up providing a better quality service to the community and increase their expertise. As I said, this should not be a process that is feared. The good thing is that having commonality and consistency across all sectors certainly will give our Public Service a much better chance of providing a better service to our state.

I note that one of the new principles that has been developed is the new governance arrangements that have been put in place. Certainly there has been an enhanced role for chief executive officers. Much of the authority currently held by the Commissioner for Public Employment and, indeed, the government for the hiring and firing of staff has been assigned to the Premier by delegation to the departmental executives. That might be okay if we had a perfect system where consistent rules were applied and the chief executive officers were consistent across all sectors. I think that is where this is flawed, and I will highlight some examples later in my contribution where determinations have been made about employees that really displayed a total lack of consistency from one section to another.

I also note that this bill creates the South Australian Executive Service. It is our understanding that this will involve approximately 500 staff members. It is my understanding that in the future everybody appointed to the Executive Service will be appointed on a contractual basis. This raises a couple of questions for me in relation to tenure. If they do not have tenure and it is only a contract period, it may be offered for perhaps only five years. Here in the parliament we have it with our own staff who are, if you like, four year appointments. Some of us in this chamber are more fortunate than others in that we do have an eight year term, but the staff of the House of Assembly members have only a four year tenure and are linked to the member of parliament. They have extra salary and extra benefits because of the uncertainty of employment and there is no guarantee that they will have their position after any particular election.

I would ask the minister whether there is any likelihood for people in this situation, who are on a contract, to attract a higher salary or benefit. I asked a couple of questions today in relation to two appointments that have been made to the Public Service by the minister's department (Planning SA) which, again, were one year contracts. I am sure the minister will provide the details, as he always provides details to my questions. Unfortunately, he did not provide them by the end of question time, as we had hoped he would have done, but I would like to know whether those contract positions for 12 months have a salary benefit that reflects the lack of tenure.

One of the things that is really important—and I have thought about this for some time and am very happy to see this provision in the new legislation—is to provide mobility of public sector employees across various agencies. I think that is very important. There is perhaps an old movie stereotype where a public servant has worked at the same desk, doing the same thing for all of their working life. I am sure there are people in our community who have done that and who have provided wonderful opportunities for the community and served the state very well.

However, I am told that generation Y will have 14, 15 or 16 jobs in their lifetime. I know that you, Mr President, would say that shearing, crutching and a range of things you did in your day, and what I did as a farmer—carting hay, shearing and irrigating—were different jobs, but we worked in the same industry. I envisage that generation Y will move across a range of different career opportunities and, for them to be attracted to the public sector and have the benefits of their modern education system and all the experience they will bring, we need to allow them to move around within the state.

I would like to see opportunities where they can move nationally between states, as there are real benefits for our state to have public servants, wherever they happen to work, going to another state and working in, for example, the EPA, the parks and wildlife in Victoria or with the police. We undertake parliamentary travel to learn about new issues and initiatives. Ministers often travel and look at other parts of the world to see how things can be done better and differently. Surely, it would be a great opportunity to provide vigour and opportunities within our Public Service for a national exchange of positions because it would create much more diverse and long-term career paths. I am pleased to see that that provision exists in this legislation.

The Hon. P. Holloway interjecting:

The Hon. D.W. RIDGWAY: It is important across all walks of life, and people in the private sector often do that. They move from place to place and from employment to employment. This is a great opportunity not only for the personal development of the individuals, raising their skill levels and being able to win higher positions, but also because there is a benefit for our state. We have had the brain drain and expertise leaving.

Most members know that I now have only two school-aged children; until recently I had three. Many parents I bump into are professional people who have worked interstate but who have come back to Adelaide to bring up their family as it is a smaller city, it is easier to get around and their parents are here to offer some support. If you have the ability to transfer from state to state, it would be a real benefit to the public sector, to individuals and to our state as a whole. It is an important component of the legislation.

One issue that jumped out at me was that the bill does not refer to a reduction or expansion of the Public Service but provides the opportunity to remove an excess. I am interested in the word 'excess'. I am intrigued, as it comes back to my previous comments on the Commissioner for Public Employment's figures of 17,000 positions that have grown under this government. If the minister is not able to provide an answer as to why they have exceeded their budget by approximately 14,000 positions and, if they have not exceeded the budget, I assume that there is no excess and that the public sector is what the government intended to have.

So, there should not be any need to have a provision in a bill to remove excess if the government intended to increase the public sector by the 17,000 positions the commissioner claims it has. I come back to the best of economic times we have gone through. That was when the government should not have let the public sector grow as much is it did because there was an abundance of jobs in the community, there were difficulties with skills and we had regional status for migrants to come in to help bolster our industries. I am just reminded of a comment someone made to me recently about the Labor Party's three mines policy for uranium mining that has recently been overturned by the ALP, and, in particular—

The Hon. P. Holloway interjecting:

The Hon. D.W. RIDGWAY: 'And no new mines', the minister interjects. Also, of course, there is the Premier's opposition to the Roxby Downs mine in the first place, Olympic Dam. What was put to me is that South Australia—and the Minister for Mineral Resources Development will know this—is regarded as being highly prospective for uranium. In fact, Western Mining was looking for copper at Olympic Dam. In the end, it was a bit of a pain in the neck that it had so much uranium in it because it was looking for copper.

All of South Australia is looked upon as being an area of rich resources but you will probably always get uranium. We have seen it with Prominent Hill—there is copper and some uranium. Roxby Downs has copper, silver, gold and uranium. In terms of this ALP policy of no new mines, all explorers have basically said, 'Well, we'd better not go looking in South Australia because there is a fair chance we'll find some uranium and we can't mine that.' That policy has been in place for a significant period of time. It has been put to me that South Australia is 20 years behind where it would have been if that policy had not been in place.

The Hon. P. Holloway interjecting:

The Hon. D.W. RIDGWAY: The minister interjects that we have been ahead of the other states for the past three years, but we have been playing catch-up. I went to a family wedding in Perth in 1982. Adelaide and Perth were roughly similar cities. You look at the two cities today and tell me that they are still roughly the same. In fact, Western Australia electrified its rail network in the early 1990s—you lot are still talking about it! I suspect that, with where the economy has gone, it will be pushed out further; and, if you look, it is because the government's no new mines policy has stifled exploration. People know that there is a very good chance of finding uranium and they would not be allowed to mine it.

The point I am trying to make is that this indicates how we could have had better economic times over a much longer period and maybe our economy would have been in much better shape. Now, of course, we have this excess the government claims we have, and the nature of the bill allows removal of an excess. We have absolute silence from the government on the 17,000 extra positions, yet it budgeted on only 3,000. I am a little intrigued with that removal of excess. Of course, we all know the grief, stress and all the other issues that are potentially hanging over people's heads because they are now excess or surplus to requirements; and, again, all the pressure that will emanate from the threat of losing their positions.

One issue raised in the bill is consideration of the involvement of the Industrial Relations Commission. I know that Steven Griffiths indicated that, and certainly it is an amendment we will move. We will propose that the provisions of the Public Sector Management Act 1995 be returned to this bill because we think that the collective use of the existing process has worked quite well. We will certainly be keen to see that reinstated. I guess that, when it was introduced in November, the biggest component of concern in this legislation was the issue of tenure. Clause 53 provides:

A public sector agency may terminate the employment of an employee of the agency on any of the following grounds:

(a) an employee is excess to the requirements of the agency;

(b) the employee's physical or mental incapacity to perform his or her duties satisfactory;

(c) the employee's unsatisfactory performance of his or her duties;

(d) the employee's misconduct;

(e) the employee's lack of essential qualification for performing his or her duties;

With respect to paragraph (e), I asked the minister today in question time for the job and person specifications for the positions I outlined, and I would like to know what the qualifications for those two appointments were. We do not know whether there was a set of performance duties or job and person specifications against which the people who were given those positions were judged. So, potentially, we have one set of rules applying to some people and another set of rules applying to others. The final paragraph states:

(f) any other ground prescribed by regulation.

We thank the minister for providing the residential code, which was by way of regulation. However, this government has, if you like, some form on leaving a lot of detail to regulation and the parliament really not being able to scrutinise that, and that is a matter of some concern. I think the minister realised that he needed to provide the residential code to give us some comfort. Notwithstanding the fact that the opposition would support the implementation of a residential code, it was useful to see the code—although version 10 or 11, I think, was tabled with the bill towards the end of the committee stage and we now have yet another version, albeit with some minor amendments and changes, as the residential code.

So, these regulations have gone through quite an evolutionary process, and it certainly concerns the opposition that a reason for termination can be 'any other ground prescribed by regulation'. I also note that in the regulations there is a code of conduct that will be used in this whole process. That also concerns us, and I will address that matter a little later.

Clause 53, I think, is causing some concern in the community. I know that there is an opportunity within the process proposed by the government, but we are certainly proposing some amendments, because there is not an opportunity for a proper review of this clause. We note that the review provisions proposed by the government are included in the bill, but our concern is that the process will be quite time intensive and could take far longer than might otherwise be needed. If someone's employment were terminated on the grounds of clause 53, that person could lodge a request for a review to be undertaken and go through the process available under the bill. However, that would take some time and would therefore put that person under some enormous pressure, especially in this time of global financial crisis. There is no doubt about that.

The preservation of one's employment is going to be their primary focus through these difficult economic times. Indeed, the next few years will be very difficult for all of us. Under this legislation, a person can suddenly have their employment in the public sector taken away because a senior person has made a decision.

Some information has been provided to me containing examples which I think highlight the issue that I raised previously about consistency across agencies with respect to chief executive officers. I will cite the following examples. An employee was suspended without pay pending a disciplinary inquiry regarding a complaint from a client. The female client had made a complaint of a sexual nature which caused the employee anxiety and depression. The employer then took the opportunity of instigating the section 51 process of the current PSM Act (physical and mental incapacity) and his employment was terminated due to the way in which his matter had been inappropriately dealt with and investigated. The employee sought legal assistance and the matter was appealed to the Supreme Court and the employee was reinstated. This demonstrates how inappropriate action in resolving issues can lead to unfair and discriminatory results. Under the new powers, this could well become more prevalent.

In the second example, an employee was threatened with section 51 (physical and mental incapacity) due to absences resulting from a work injury. He had no history of performance issues; however, he was told that he was not performing because he was not at work. He was under medical direction; that is, a certificate that he was unfit for work and undergoing treatment. The employee was open and honest with the employer. The employer was more interested in termination than assistance. There was absolutely no necessity to pursue section 51 as it did not apply. The agency withdrew the action once the PSA threatened an equal opportunity commission action under disability discrimination. The section 51 was then withdrawn. Members can see a couple of examples of inconsistencies.

I will refer to two more cases. An employee allegedly called a director—and pardon me for this unparliamentary language—an 'arse licker' in front of a manager who was offended by the comment.

The Hon. P. Holloway interjecting:

The Hon. D.W. RIDGWAY: I do understand that it is very unparliamentary but I think it is important in the context of the debate. This was said by an employee who had never used foul language in the workplace—and this was supported by numerous witnesses who gave evidence at his hearing—but was said in frustration at the utter waste of public moneys by the department which the employee felt could have been avoided.

It is a well-known fact that worse language had been used by other senior managers and in front of anyone, whereas this was only said in front of one person, a work colleague. No member of the public was anywhere in the vicinity. The employee also sent an email to the said director advising him that he had lost confidence in his leadership. The employee was suspended over three months—full disciplinary action. No-one else heard the comment. No mediation or conciliation was considered. Notice of intent to pursue a disciplinary inquiry was delivered on Christmas eve. The matter was attended to by the tribunal. The suspension was revoked and the employee returned to work.

I will give one final example to illustrate the inconsistencies that can occur between chief executive officers. An employee lost a family member in a car accident overseas. The employee had to travel overseas to identify the body, wait for the coroner's report and then fly home with the body for funeral arrangements. The general manager provided only three days special leave with pay. The employee ought to have been provided with 15 days special leave with pay. Other members of the family who worked within government were provided with the 15 days. The general manager then approved a further four days, giving a total of seven days. However, the general manager informed the grieving employee that any further amounts would not be provided because the member had to put in a grievance and fight the issue.

That example demonstrates the difficulties with allowing chief executive officers to terminate people's employment. There are inconsistencies across the Public Service, and there are a range of other examples. The examples given clearly indicate the flaws in this system. One suggestion is that the Commissioner for Public Employment has an important role to play. A decision can be made by a senior manager or a CEO of a department to terminate an arrangement on whatever grounds are included in the clause but, if it has to go to the Commissioner for Public Employment, it creates an opportunity for a review and a decision to be made in the fullness of time, taking into account all the required information, which allows not only the department but also the employee to see an outcome that everyone can appreciate and understand.

It is interesting to note that clauses 60 and 61 deal with the review of employment decisions and the creation of a proposed public sector review commission, which we understand—and the minister might like to clarify—is made up of one single commissioner. It is the opposition's view that we should not have a single commissioner but that we should have a tribunal potentially made up of three people. We believe that, rather than having just one person, we should have a group of three, and probably people with various expertise. It could include the presiding officer, someone from within an agency and maybe a PSA representative as well. It would certainly bring a better and more balanced approach to the issues.

We note that the code of conduct in clause 14 relates to the public sector code of conduct. Unless you can see a code of conduct, you are never quite certain what is in it. I would certainly like to see what the government is suggesting in its code of conduct, because, again, this government has had some form on hiding behind the fact that something is in regulation or yet to be developed and saying, 'Trust us, we will deal with it after the bill gets through the parliament.' I think this is a significantly important component of this legislation and we should see that before the parliament.

In particular in regard to the code of conduct in relation to public service members' activities, I know Steven Griffiths gave an example of someone who might have a particular interest, say, in the disability sector. We have seen that here, where we have had someone providing care for an immediate family member or friend and the carer attends a rally—we have had them here on the steps of parliament and have had meetings and gatherings in Old Parliament House, and elsewhere. Their attendance and participation may affect their employment purely because they want to stick up for and represent the family member or friend. Certainly, I think that needs some exploration, and we will do that further in the committee stage.

It seems very unfair to the opposition that someone cannot participate in an advocacy way in an area where they have had a longstanding commitment, whether in the disability or volunteer sector. If it is in the code of conduct and they breach the code of conduct they should not be subject to termination because of that. I think that undermines democracy in this state. People should be able to speak freely, provided they are not undermining the agency for which they work and it is some area with which they have had a connection—not necessarily a longstanding connection. Someone may tragically have someone with a disability for a relatively short period of time, so it might be something that grows over time.

Those are some of the concerns I wanted to put on the record tonight. We have a range of amendments that we will move and, certainly, I will make some detailed contributions to those amendments. I am also aware that the Hon. Ann Bressington and Family First (probably the Hon. Dennis Hood) will speak, and I know there are some government amendments. I look forward to other honourable members' contributions and the committee stage of this bill where, hopefully, we can make some good sense of this government legislation.

The Hon. M. PARNELL (21:48): There can be no doubt that public sector workers are the lifeblood of government and administration and, in fact, government could not function without them. The Greens believe that public sector employees deserve an industrial relations system that provides for fair work practices whilst providing the community with efficient and effective service delivery. My contribution to the second reading will focus on the more contentious parts of the bill, one of which in particular may even prove to be fatal. The five issues that I want to address are: first, the question of the right of chief executives to hire and fire; secondly, the rights of public sector employees to engage in community activity outside their work responsibilities; thirdly, the right of public sector workers to choose who can represent them in industrial matters; fourthly, the role of the Commissioner for Public Employment in investigating matters; and, fifthly, some remarks in relation to the grievance review commission.

I will deal with the most contentious issue first, that is, the question of hiring and firing. The government has made it very clear that it is not prepared to move on the question of giving chief executives the power to hire and fire. From all the communications I have had with unions and government representatives, this is probably the single most contentious part of the bill.

I believe that the decision to terminate employment is a very serious one, and it should be surrounded by sufficient checks and balances to ensure that it is not exercised capriciously. I do not support the unfettered right of chief executives to fire staff. At present, it is the Commissioner for Public Employment who has that right, but the government is proposing that it be the chief executive of the agency.

The Liberals have an amendment on file that provides that the commissioner should remain the ultimate decision maker. Under the Liberal proposal, as I understand it, the dismissal proceedings would be initiated by the chief executive but the commissioner would make the final decision. My view is that the firing decision should be based on more than just the judgment of the chief executive.

Another option the government may want to consider is a model whereby the chief executive remains the formal decision maker for termination; however, the chief executive could be required to obtain the concurrence of the commissioner. That model is used in other areas of government. For example, under the development control regime, some types of decisions cannot be made without the concurrence of another agency; for example, local councils cannot approve subdivisions without the concurrence of the Development Assessment Commission.

I offer that as a suggestion to government. It would seem to me that it would satisfy the demands of unions that we not have unfettered chief executive control, but you could leave the decision in the hands of the chief executive, subject to balances. Whether the government decides to move at all on this question, I think, could well determine the fate of this bill. The Greens' position is that we want more checks and balances than are currently in the government's bill.

The second issue is in relation to public sector workers and community engagement. The bill proposes a code of conduct for public sector workers, and I think it is most important that both the bill that we are discussing and the code of conduct recognise that when we, as a community, buy the labour of public sector employees, we do not buy their souls. We are buying their labour for specific purposes.

Public sector workers are no different from anyone else in the community; they have passions and interests that extend beyond the workplace and they have civil and constitutional rights to engage in public activity and debate in their own time. In fact, my view is that we should be doing much more to encourage public sector employees to use these skills in the community.

Certainly, they can do this in their own time, but I think there is also a good case for enabling public sector employees to be entitled to volunteering leave so that they can engage in worthwhile community activities in work time in much the same way as we support and encourage CFS and SES volunteers to engage in community work, and we do not dock their pay when they do so, when they are away from their normal jobs fighting fires or helping with emergencies.

However, that is a matter for another day. The question for us in this bill is: what barriers, if any, should be in the way of public sector employees engaging in community or political activities outside the workplace?

As a lawyer, I had some experience in advising people in this area. Probably the worst case that I came across was that of a public employee who was called into the boss's office and told that, unless he resigned his position as chair of a community group, he would lose his public sector job. The pressure for that move came from a big business client of that public sector agency who could see that this person in their private life was a thorn in their side and sought a way to silence him by going to his boss and trying to have him effectively disciplined.

The Law Society, in its submission to the original bill back in January 2008, addressed this issue in the following terms:

It is accepted that public employment must carry with it some diminution in the freedom to engage in political activities and some restriction on the disclosure of information gained in the course of public employment. However a strong case can be made in favour of ensuring that the severity and degree of such restrictions should vary with the seniority and relevance of the particular employment involvement. Thus the further removed an employee is from a matter of political significance and the more junior the status of the employee, the greater should be the freedom that is given to such an employee.

It states that it appears that that is the position in the United Kingdom. I am not sure I agree entirely with the Law Society's approach, but, nevertheless, the two factors it refers to—the seniority of the person and the level of connectedness between their day job, if you like, and their community activities—are relevant considerations.

The present situation under the Public Sector Management Act appears at first blush to be quite draconian. Basically, section 57 provides that an employee is liable to disciplinary action if the employee 'except as authorised under the regulations...comments on any matter affecting the public service or the business of the public service'. At first blush it would appear that any comment by any public servant on any matter of government gives rise to disciplinary action.

The harshness of that provision is softened when you consider the regulations under the act. As I understand it, it is the government's intention to bring, if not verbatim, certainly the intent of those regulations into the bill as a government amendment. Those provisions are complex in their wording, but they are certainly an improvement on the current situation in that they elevate those regulations into the act.

The main provision in the government's amendment is that the public sector code of conduct will be taken to allow a public sector employee to engage, in a private capacity, in conduct intended to influence public opinion or promote an outcome in relation to an issue of public interest. That is the main principle, and then there is a list of exceptions.

One of the exceptions provides 'except if it is reasonably foreseeable that the conduct may prejudice the government or a public sector agency in the conduct of its policies, taking into account the role or a previous role of the employee and the nature and circumstances of the conduct'. That is a convoluted provision.

The amendment foreshadowed by the government is based on the premise that it is appropriate for public sector employees to engage, provided it is in a private capacity and provided it is conduct that is intended to influence public opinion or promote an outcome in relation to an issue of the public interest. That definition is reasonable. It is very similar in many ways to the definition I have for public participation in my Protection of Public Participation Bill, which I look forward to bringing back for a third time perhaps later this year. However, the wording of the exception gives me some concern.

Under that model, a public sector employee is not free to engage in conduct if it might 'prejudice the government or a public sector agency in the conduct of its policies, taking into account the role or a previous role of the employee and the nature and circumstances of the conduct'.

Presumably, what the government had in mind is similar to what the Law Society was proposing; namely, that if a person is engaging privately in an area outside their employment they should be free to do so, especially if they are, for example, below the top rung of the Public Service. However, I am not sure that that is, in fact, the outcome of that provision.

I invite the minister, perhaps in the closing of the second reading, or otherwise in committee, to explain exactly what is meant by that amendment. It seems to me that many campaigns are deliberately designed to prejudice the government in that what we often want in community campaigns is to get the government to change its mind. If that is regarded as prejudicing the government, I think this exception to the free speech rule, if I can refer to it as such, it is probably not the way to go. However, I note that the Liberals have also filed an amendment on this matter. The Liberal amendment is simpler.

The Hon. D.W. Ridgway interjecting:

The Hon. M. PARNELL: I didn't say 'better'; I said it was simpler. We will come to whether it is better or not later. The Liberal amendment provides that the code of conduct may not restrict participation by public sector employees in community activities unrelated to their employment except so as to ensure that public sector employees conduct themselves in public in a manner that will not reflect adversely on the public sector.

As I say, that is simpler. My position for now, at the second reading stage, is that I will support whichever of these amendments provides the greatest freedom for public sector employees to engage in public debate and other activities without risking disciplinary action. I look forward to the committee stage on that point.

The third issue that I want to deal with is the question of who represents public sector employees and who should be recognised as genuine representatives. Again, the Liberals have foreshadowed a number of amendments. I think they are amendments 1 and 2 as filed, and I will say at the outset that the Greens do not support those amendments. They undermine the principle of freedom of association by providing that the Commissioner for Public Employment can choose which unions to recognise based on whether he or she is of the opinion that the union represents a significant number of public sector employees.

In my view, that would make it very difficult for a number of unions, including the Health Services Union of Australia and the Association of Professional Engineers, Scientists and Managers, Australia from being recognised under this regime. For example, when it comes to public sector employees in the health sector, I am informed that the Health Services Union membership includes some 580 publicly employed health professionals.

My view is that it is inappropriate for the commissioner to decide who should represent workers. It should be up to individual workers to decide which union they want to join and, therefore, which union they want to represent them. Choosing the appropriate union would be on the basis of the worker's field of work, the benefits, the advocacy services that are offered by the various unions and other such factors. I do not believe that the playing field should be skewed and competition between unions lessened by a legislative provision that rules out certain unions from important negotiations around public sector work conditions.

The fourth point that I want to raise relates to the role of the commissioner. I do support provisions that allow the commissioner to investigate matters on his or her own initiative. I think that is an important provision, and I note that it is consistent with the position that the government has taken in other legislation such as the equal opportunity legislation that is currently before us.

The arguments that were put forward by the government in that case for allowing the Commissioner for Equal Opportunity to proactively investigate matters also apply here, for example, when investigating cases where vulnerable people might be involved who will not or do not complain because of fear of discrimination. Those reasons apply equally in this situation, or perhaps even more when we are in a climate where unemployment is likely to get worse before it improves.

The fifth and final point that I want to raise relates to the grievance review commission. I have concerns in relation to that commission that are similar to concerns that I have in other areas of government where we have effectively quasi-judicial functions being performed by people who are appointed by the Governor and can be, effectively, dismissed by non-renewal of contract on the basis of their performance.

For example, the government's bill, I think, provides that members of the commission can be appointed for up to five years. They might be appointed for one year and if, at the end of that year, the government does a tally and works out how often that person came down on the side of the worker and how often they came down on the side of the boss, if you like, and the government decides that someone was too soft on workers, then they would simply not have their contract renewed. They would have no right to have that decision reviewed, and they have no right to any explanation as to why their contract was not renewed. So, what I am looking for is some way through that which provides for not just merit based appointment, which I think is the subject of another Liberal amendment, but also some greater security of tenure, other than the whim of the government of the day.

In conclusion, I look forward to the committee stage. I urge the government to engage more fully in discussion with key stakeholders, in particular, the union representatives. I think we have an opportunity here to ensure that our laws can be made fairer, yet provide a very sound framework for an efficient and effective Public Service.

The Hon. J.A. DARLEY (22:06): I rise to support the second reading of the bill. I think that reform in the public sector is long overdue. Having worked in the Public Service for 39 years, I have experienced first hand how difficult staff management and evaluation can be, and I have seen how the bureaucratic processes that have been in place for many years stymie the proper and efficient administration of government departments.

I commend the government on implementing whole of government objectives, as outlined in clause 9 of the bill. I hope this will ensure that, when the government sets a particular agenda, it is adopted in all relevant government departments and that we do not have the situation where departments are ignorant or unwilling to work towards a common goal.

In my time in the Public Service, it was quite evident that, notwithstanding the government's setting particular objectives, some CEOs went out of their way not to cooperate with other government departments. I am sorry to say that, in the short time I have been in this place, I have seen exactly the same behaviour from some departmental executives, in particular, in the Department for Transport, Energy and Infrastructure.

In principle, I am also supportive of the new power of the CEO to terminate employment. I believe that the Commissioner for Public Employment has a role to play, so I look forward to the committee stage and to hearing the debate on the opposition's amendment in relation to this point.

I remember when I was the CEO of the Lands Department and State Services Department that we had staff members who were not performing and, in fact, who were quite unproductive, yet they could not be dismissed and we had to find work for them to do in our department. This hampered the efficiency of the department as a whole and was particularly disruptive for other members of staff who were doing a good job. I once told a particular employee to sit in the corridor and do nothing; at least that would be a positive contribution. I note the new power under clause 8 which enables the Premier to transfer employees within the public sector. This will provide much greater flexibility and opportunities within the public sector workforce.

I was concerned that the provisions outlining performance reviews of chief executives would be ineffective, as they have been in the past. I am grateful to the ministerial and departmental staff who have provided me with a comprehensive document outlining the guidelines for the chief executive performance appraisal process. It seems to be a thorough and rigorous process, unlike the very informal process it has been in the past. Provided the process is rigidly adhered to, this should lead to an improved performance in the future. I indicate my support for the bill, and I look forward to the committee stage.

The Hon. DAVID WINDERLICH (22:09): I understand that I am already getting a reputation for short speeches, and this will be another one. I have come to the position that, where my words do not matter very much, I will not use too many. In this case, most of the major negotiations have taken place. I think the opposition has worked well with the Public Service Association to improve this bill, and I support the majority of the amendments the opposition is putting forward, although there are two exceptions. One relates to clauses 3 and 9, which appear to entrench the rights of the Public Service Association to consultation over that of other unions with smaller memberships. The Hon. Mark Parnell outlined that situation in relation to the Health Services Union, which represents about 580 people within the public sector. I think that all legitimate industrial organisations should be consulted. This is about the basic rights of working people, and no union should have preferential treatment over another.

I am surprised that the Liberal Party—which sees itself as championing choice—has gone along with this provision. I am also inclined to support the government's amendments to clause 14, which relate to the code of conduct. I believe this gives more protection for the rights of public sector employees to engage in community and political activity and debate. I think this is very important. The importance of this was also very well outlined by the Hon. Mark Parnell.

I will conclude with a few brief remarks about hiring and firing. I am instinctively attracted to giving chief executive officers the right to hire and fire. I am inclined to devolution of authority wherever possible, so it makes sense on those grounds. The reason why I do not support it in relation to the public sector is that I observe—and it is certainly not unique to me—the increasing politicisation of the public sector. The calls for responsiveness and flexibility are, in effect, calls for responsiveness to political masters who are driven by, at best, three-year time cycles, when, in fact, much of the work of the public sector should be in terms of 20-year time cycles, whether we are talking about major infrastructure projects, major planning and development or long-term environmental projects.

So, the clash between the short-term imperatives of a responsive public sector—which I think means a politicised public sector where chief executives are responsible to ministers who have very short-term time frames—contrasted with the need for a longer term strategic perspective I think is a real problem. It is a problem that this bill has no answers to and one that I think is an institutional challenge in many ways—how we separate the longer term strategic perspective from the short-term responsive one. However, without institutional innovation, I think it becomes a recipe for more politicisation and more instability.

In conclusion, when we think about the public sector and its importance in South Australia and South Australian history, I think of the way in which, at its best, it has been the great builder of our state. I think of innovations such as Goyder's line, the timber plantations of the South-East, or Wirrabara, and things like the linear park as long-term projects that have left a legacy that lives on through the generations. That is what the public sector can do at its best and, in many ways, those sorts of things come out of individual innovation; they are not dependent on particular regulations or legislation.

So, while I see this bill as in many ways providing some advances in modernising the public sector, in the end, the particular advances that the public sector makes are dependent on the individual qualities, the individual leadership and the culture of the agencies and departments. I look forward to the committee stage. As I have said, I think that the majority of the amendments developed by the opposition in consultation with the Public Service Association have improved this bill.

Debate adjourned on motion of Hon. R.P. Wortley.

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