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Legislative Council - Fifty-Third Parliament, First Session (53-1)
2014-12-02 Daily Xml
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Fair Work (Miscellaneous) Amendment Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (22:26): I move:

That this bill be now read a second time.

I seek leave to have the second reading speech and explanation of clauses inserted in Hansard without my reading it.

Leave granted.

The Fair Work (Miscellaneous) Amendment Bill 2014 amends the Fair Work Act 1994, as well as making consequential amendments, to abolish the statutory office of the Employee Ombudsman and to make changes to the requirements for constitution of the Full Commission of the Industrial Relations Commission.

Employee Ombudsman

The Office of the Employee Ombudsman consists of the Employee Ombudsman and staff appointed to assist the Employee Ombudsman in the performance of functions under the Fair Work Act. The Employee Ombudsman is appointed by the Governor pursuant to section 58 of the Fair Work Act and is not subject to control or direction of the Minister responsible for the Fair Work Act.

The statutory functions of the Employee Ombudsman are set out in section 62 of the Fair Work Act and were designed to operate in the context of the former industrial relations system, whereby the State had responsibility for the private sector and the Employee Ombudsman was considered necessary to protect the rights of non-union represented workers in the private sector. This is no longer a state responsibility since the referral of the private sector industrial relations regulation to the Commonwealth.

Due to recent changes as a result of the Commonwealth's development of a national industrial relations system, the functions of the Employee Ombudsman have been limited to public sector and local government employees. This has reduced the workload of the Employee Ombudsman. In its annual report for the 2012-13 financial year the Employee Ombudsman reported less than 2 900 requests for assistance, with only 22% of these queries being from the public sector. The remaining 78 per cent of requests were from private sector—employees for which the Employee Ombudsman has no statutory function.

Statistics were not provided by the Employee Ombudsman in the annual report for the 2013-14 financial year, however it was noted that again more inquiries were received from the private sector than the public sector.

Residual functions of the Employee Ombudsman with respect to the public and local government sector are already performed by SafeWork SA (a business unit of the Attorney-General's Department) as well as by representative unions (Public Sector Association and Australian Services Union—SA & NT etc.), removing the need for a dedicated and separately funded the Employee Ombudsman and office. For the most part, the role of the Employee Ombudsman is a duplication for public sector and local government employees. The Commonwealth Fair Work Ombudsman is responsible for providing a similar service to private sector employees. In addition there are various free or low cost legal services available to all public and private sector employees.

This Bill will reduce the financial burden to State Government of providing services that are provided and funded by the Commonwealth for private sector employees through the office of the Fair Work Ombudsman.

The decision to abolish the Office is in no way a reflection on the efforts of the Office's staff members but is a decision taken based on the changing landscape of the industrial relations system in recent years.

Full Commission of the Industrial Relations Commission

The Industrial Relations Commission of South Australia is established under the Fair Work Act. It has jurisdiction to approve enterprise agreements, to make awards regulating remuneration and other industrial matters, to resolve industrial disputes and, among other things, hear and determine matters arising from an industrial matter.

The Full Commission of the Industrial Relations Commission has original jurisdiction in minimum standards applications (e.g. remuneration, sick leave, severance payments), adoption of Fair Work Australia principles and unreasonable conduct applications as well as appeals and references from single members and applications by the Minister for review.

The Full Commission consists of three members or the number of members (more than three) as directed by the President. Section 39(3) of the Fair Work Act requires that the Full Commission consist of one or more Presidential members and one or more Commissioners.

The Bill will amend the Fair Work Act to remove the requirement in section 39(3) for the Full Commission to include one or more Commissioners. Instead the Full Commission is to be constituted of one or more Presidential members and such number of Commissioners, if any, as directed by the President of the Industrial Relations Commission.

This will provide the President of the Industrial Relations Commission with greater flexibility in constituting the Full Commission.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal

Part 2—Amendment of Fair Work Act 1994

4—Amendment of section 4—Interpretation

This clause removes references to the Employee Ombudsman from the interpretation section and is consequential on the repeal of Chapter 2 Part 6 Division 1.

5—Amendment of section 7—Industrial authorities

This clause is consequential on the abolition of the office of the Employee Ombudsman.

6—Amendment of section 39—Constitution of Full Commission

This clause amends section 39(3) of the principal Act to remove the requirement that the Full Commission consist of 1 or more Commissioners and to instead allow the President to direct the required number of Commissioners (if any).

7—Repeal of Chapter 2 Part 6 Division 1

This clause repeals Chapter 2 Part 6 Division 1, which constitutes the office of the Employee Ombudsman, sets out the appointment and conditions of office of the Employee Ombudsman and the functions of the Employee Ombudsman.

8—Amendment of section 64—Who are inspectors

9—Amendment of section 75—Who may make enterprise agreement

10—Amendment of section 76—Negotiation of enterprise agreement

11—Amendment of section 79—Approval of enterprise agreement

12—Amendment of section 80—Extent to which aspects of negotiations and terms of the agreement are to be kept confidential

13—Amendment of section 150—Proceedings to be in public

14—Amendment of section 153—Intervention

15—Amendment of section 219—Confidentiality

16—Amendment of section 223—Discrimination against employee for taking part in industrial proceedings etc.

These clauses are consequential on the abolition of the office of the Employee Ombudsman.

17—Transitional provision

This clause makes it clear that the person holding office as the Employee Ombudsman will cease to do so on the commencement of this clause.

Debate adjourned on motion of Hon. T.J. Stephens.

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