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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-06-04 Daily Xml
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TAFE SA (PRESCRIBED EMPLOYEES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 16 May 2013.)

The Hon. J.A. DARLEY (16:11): I rise briefly to speak on the TAFE SA (Prescribed Employees) Amendment Bill 2013. The relatively short history behind this bill has been explained well by the Hon. Jing Lee, and I thank her for her support on this issue. In short, this bill is intended to replace the Statutes Amendment and Repeal (TAFE SA Consequential Provisions) Bill which was passed with amendment by this chamber in July last year. As a result of the amendments, which were very minor in nature, the bill became the subject of five deadlock conferences before finally being set aside.

The amendments to the previous consequential bill replaced the exclusive right that has been given to the Australian Education Union in relation to the appointment process for employee representatives, with one that applies to all teachers across the board. As the Hon. Jing Lee pointed out in her contribution, the amendments did not preclude union members from being involved in the relevant processes: they simply opened those processes up to all teachers, whether they were union members or not.

Until this point the government has simply refused to entertain what the opposition and I proposed with respect to our amendments. Instead it has opted to overcome the issue by introducing this new bill. I am somewhat at a loss to understand the government's attitude with respect to this matter. On the one hand we have an all-inclusive bill which has the broad support of stakeholder groups and, on the other, we have the government digging in its heels and not only insisting that the first bill be abandoned, thereby limiting appointment processes to union members only, but blatantly refusing to deal with, and even trying to evade, the will of the Legislative Council.

The member for Unley in the other place has been advised that standing orders do allow the government to reintroduce the amended bill that it chose to set aside. As such, I would strongly urge honourable members to oppose this bill on the basis that we have already supported legislation to facilitate TAFE's transition to statutory corporation status. The government can reintroduce the previously supported bill knowing that it will pass both houses without any concerns whatsoever.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (16:13): I would like to thank honourable members for their comments and their contribution to this debate. TAFE SA has a reputation for quality and is highly regarded in the community and regions around South Australia. It is a major presence in this state, turning around 80,000 students a year, delivering training and education over 50 sites across the state and employing around 3,500 staff.

The state government recognises and respects the importance of TAFE SA to the South Australian economy and the role it will play in meeting our skills challenge. As the state's largest training provider and the state's largest provider of publicly funded training, TAFE SA will play a critical role in skilling our future workforce. That is why we established TAFE SA as a statutory corporation on 1 November 2012 under the TAFE SA Act.

The establishment of TAFE SA as a statutory corporation is a key component of Skills for All because it modernises governance arrangements. This will enable TAFE SA to operate in a more commercial and competitive environment while continuing to meet industry training and community service needs and contributing to the social and economic development of regional communities.

TAFE SA is undergoing transformation to compete effectively under Skills for All and to embed a more commercial and financially sustainable culture across the organisation. Meeting the needs of industry and building an organisation that is client focused and responsive to market changes will be a key challenge for the board. The board members together have the expertise, abilities and experience for the effective performance of TAFE SA's functions and the proper discharge of its business and management obligations.

All staff responsible for service delivery within TAFE SA, including staff employed under the Technical and Further Education Act 1975, were transferred to TAFE SA, retaining their employment terms and conditions on 1 November 2012. Staff responsible for the delivery of corporate services have remained under the employing authority, the Department of Further Education, Employment, Science and Technology. Currently a review is taking place and some corporate service functions were transferred to TAFE SA on 1 July 2013. This bill finalises the legislative process for staff employed by TAFE SA following its establishment as a statutory corporation.

The bill seeks to transfer the employment terms, conditions and rights to a schedule in the TAFE SA Act 2012 and repeals the Technical and Further Education Act 1975. This bill is important as a schedule will provide clarity and certainty, particularly in regard to the employer disciplinary rights and the employee appeal rights. The employee and employer rights provide a fair and complete set of arrangements for TAFE SA to discipline and suspend staff, whilst providing appropriate review and appeal provisions for disciplinary decisions that affect TAFE SA educational staff.

Without the transfer of these rights to the schedule, TAFE SA has to rely on common law and the Fair Work Act 1994, where the disciplinary rights are not as explicit and appeals are referred to the industrial commission rather than the body that deals specifically with educational matters. The grounds for which TAFE SA as the employer has to discipline and suspend educational staff are specific and consistent. They have been in place over the last 35 years and they give more power to the employer to take disciplinary action, for example, to suspend an employee without pay, compared with those outlined in the Fair Work Act 1994.

Complementary to the strengthened employers' rights are the employees' rights to access the Teachers Appeal Board for appeals of employer decisions. The Teachers Appeal Board is established to deal specifically with educational issues and the complexities associated with delivering training and educational services to students.

TAFE SA educational staff have had access to the Teachers Appeal Board since 1975. This has provided reassurance to staff that, if required, there is a formal mechanism for appeal of important decisions, such as termination, retrenchment, transfer or retirement. To deny staff access to this board is to limit their right to the longstanding, independent appeal arrangements that have been in place over 30 years, arrangements that many TAFE SA educational staff would be familiar with and would be reassured by.

The previous bill, the Statutes Amendment and Repeal (TAFE SA Consequential Provisions) Bill was held up due to amendments that impact on the Education Act and overall have limited bearing on TAFE SA and TAFE SA staff. The amendments previously supported in this place make significant changes to the Education Act, when the bill was intended to deal with consequential amendments only. The amendments have a far greater impact on officers in the broader education system rather than on TAFE SA. The amendments remove reference to the Australian Education Union from the Education Act, and in doing so impact on the constitution of a number of boards and committees established under the Education Act, including the review panel for reclassification of school teachers at section 29, the Teachers Appeal Board at section 45, the committee to recommend promotional-level appointments at section 53, and review committee for the closure or amalgamation of government schools at section 14C.

Only the Teachers Appeal Board has any relevance to TAFE SA and TAFE SA staff. It is inappropriate to make substantial changes to these committees without proper consultation processes with teachers and the education system. All the costs and resources required in each step of the election process are currently taken on by the AEU as an organisation representing the interests of education staff, both in TAFE SA and in schools.

To make the amendments to the Teachers Appeal Board would be at great cost to the Department of Education and Child Development and to TAFE SA, as they will need to run their own election processes or outsource to another body such as the Electoral Commission, which provides these services on a fee-for-service basis. This will create not only new processes to replace ones that currently work well but also unnecessary duplication across government. I am advised that there are approximately 1,600 education staff and around 20,000 school teachers located across the state who will need access to an election process.

There is no evidence to suggest that the current process is not working well and there is a need to replace it with a different process without having any consultation and involvement with staff. This bill replaces the Statutes Amendment and Repeal (TAFE SA Consequential Provisions) Bill and achieves the same outcome without opening up the Education Act. It enables us to finalise the legislative process for TAFE SA. With the passing of this bill, the employment rights, terms and conditions will be clearly articulated in the schedule of the TAFE SA Act 2012. The disciplinary grounds and appeal provisions will be consistent and appropriate for TAFE SA educational staff and explicit.

Once passed, if it is the will of the council, this legislation provides TAFE SA with a fair, but rigorous disciplinary and appeal arrangement balanced between employer and employee needs. Coupled with the new governance reforms that are in place, the passing of this legislation provides TAFE SA with the imprimatur it needs to transform itself and excel within the competitive VET market. I commend the bill to the house.

The council divided on the second reading:

AYES (9)
Finnigan, B.V. Franks, T.A. Gago, G.E.
Hunter, I.K. (teller) Maher, K.J. Parnell, M.
Vincent, K.L. Wortley, R.P. Zollo, C.
NOES (10)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Hood, D.G.E. Lee, J.S. (teller)
Lensink, J.M.A. Lucas, R.I. Ridgway, D.W.
Wade, S.G.
PAIRS (2)
Kandelaars, G.A. Stephens, T.J.

Majority of 1 for the noes.

Second reading thus negatived.

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