South Australian Employment Tribunal Bill

Second Reading

Adjourned debate on second reading.

(Continued from 25 September 2014.)

The Hon. R.L. BROKENSHIRE (17:09): As is often the case, Family First were prepared to help the government out by speaking on the second reading stage of this bill this afternoon. We try to help where we can, whenever we can. This will be a fairly short speech.

The South Australian Employment Tribunal Bill is a bill to establish the South Australian employment tribunal. I had a look at this bill and also, in more detail, I might add, the so-called Return to Work Bill, WorkCover bill, the WorkCover reform bill or whatever you want to call it. I did not see where these two bills were actually tied together, but listening to the minister and doing some other investigation, I am advised that the government actually believe that the right glove (that is, the Return to Work Bill) and the left glove (that is, the South Australian Employment Tribunal Bill) go hand in hand and have to be together. When we get to committee stage, I will be asking questions on why that is the situation and what is the importance of that.

For the record, the bill sets out the principles that are to guide the tribunal in the hearing of any proceeding for which it has jurisdiction. In summary, these principles include: minimising any formality, dispensing with rules of evidence and adopting an inquisitorial approach, and finally, acting according to equity and good conscience without regard to legal technicalities. I guess, on the surface of it, you would have to say that is commendable if indeed that happens in practice.

If you can take some of the legal complexity, technicalities and challenges—call it what you like—out of a tribunal looking at employment matters, then hopefully you can get better and more expedient outcomes than has possibly been the case in the past. I would trust and assume that this is one of the reasons the government want to establish this new South Australian Employment Tribunal Bill.

To summarise: the tribunal is to be led by a president, who will hold concurrent office as senior judge of the Industrial Relations Court. I put on notice that I would like the minister responsible to advise us, at the end of the second reading speeches, of the appointment processes that the government consider that they want to implement to get that president. The tribunal, to be led by a president, will be supported by one or more deputy presidents, magistrates and conciliators.

The president's functions, I understand, are expressly prescribed in the bill to include both administrative and managerial responsibility, including managing the business of the tribunal, which includes:

ensuring it operates efficiently and effectively;

giving directions about practices and procedures to be followed by the tribunal;

developing and implementing performance standards and benchmarks;

promoting the training, education and professional development of members;

overseeing the proper use of resources; and

providing advice about the membership and operation of the tribunal.

The tribunal will be comprised of conciliation officers who may be legally qualified but may also be experts from different fields or vocations; I would like some examples of that in answers to the summing up of the second reading speech. It says that legal practitioners will require a minimum of five years' standing, and I respect and agree with that, because you need experience in this area. Other members must have extensive knowledge, expertise or experience relating to their function within the tribunal. The question is: what functions do they believe these other experts from different fields or vocations will do, and what are the requirements around their qualification?

The minister can appoint a panel of persons who will recommend the selection criteria from consolidation officers and candidates to the minister after conducting assessment. All members are to be assessed by a panel appointed by the Governor after consultation with the president and the minister for up to a term of five years. If they are appointed for four years or five years and they end up leaving after three, I would like to know whether contractually they have to be paid out for the full appointment; that is another question I will put on notice to the minister and their staff.

The president may determine which member or members of the tribunal will constitute the tribunal, and a full bench of the tribunal consists of three presidential members. It is interesting that they have clearly realised they need three presidential members if they are going to have a full bench so that is designated within the legislation, and yet when the Hon. Rob Lucas raised the issue in SACAT, they were going to leave it up to the head of SACAT as to whether there would be one, two or three people sitting on those tribunals.

For the questions that do not amount to a determination of a question of law, the opinion of the majority will apply and, where there is no majority, the opinion of the presiding member will prevail. A question of law will be decided by the full bench of the tribunal, and the full bench can refer a question of law to the Full Court of the Supreme Court.

The tribunal will examine the decision of the original decision-maker by way of rehearing. The original decision-maker will be required to assist the tribunal to review the decision. The tribunal can give directions, consolidate proceedings, split proceedings, move a proceeding to a more appropriate forum and, finally, dismiss or strike out a proceeding that is frivolous, vexatious or an abuse of process. I have no problems with that.

The tribunal can require the parties to attend a compulsory conciliation conference or refer the matter, or any aspect of that matter, for mediation by a person specified as a mediator by the tribunal. With respect to evidentiary powers, the tribunal can require the production of evidentiary material or require an individual to give evidence. It can issue a summons, and failure to comply with this provision of the bill can amount to an offence which will attract the maximum penalty of a $25,000 fine or imprisonment for one year.

A member of the tribunal can enter any land or building and carry out any inspection that is considered relevant to a proceeding before a tribunal. A person who obstructs a member of the tribunal, or a person authorised by the tribunal, who is exercising their power will be guilty of an offence attracting a maximum penalty of $10,000 or six months' imprisonment.

The tribunal can refer questions for investigation and report by an expert after seeking submissions from the parties to the proceedings, prior to making such a reference. That is a summary, as I understand it, of the intent and what is in the bill. I have to put on the public record that I have had, as I recall, no representation from unions on this, and no representations from employers on this. I hope that there has been adequate—

The Hon. R.I. Lucas: Maybe they're just ignoring you, Broky.

The Hon. R.L. BROKENSHIRE: Maybe they are. Who knows?

The Hon. R.I. Lucas: They might have gone to the leader.

The Hon. R.L. BROKENSHIRE: Well, that's right. It saves me some workload and I have plenty of that at the moment. Back to the point which I just put on the public record: are the unions fully aware of this? I suspect they definitely are. Are the employers fully aware of this? I am not sure and I would like the minister to advise us, at the end of the second reading contributions in his or her summing up, what consultation they did undertake.

On the surface of it, this looks like it may be worth considering, but there are still a lot of questions that Family First wants answered. Some of that will occur during the committee stage, but we are definitely very open-minded at this stage and not making an absolute commitment either way on this bill until we hear the debate from opposition, government and crossbench colleagues. We will start then to work through the committee stage.

We will support it through a second reading, but we reserve our right to reconsider from there as the debate occurs in the house, given that, first, we have not had a lot of focus or discussion with the government on this, unlike the Return to Work Bill, and also, we have not had representation from those interested sectors that are affected by the South Australian Employment Tribunal Bill. With those words, I think I have made our position clear.

Debate adjourned on motion of Hon. G.A. Kandelaars.