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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
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Statutes Amendment (South Australian Employment Tribunal) Bill

Committee Stage

In committee.

Clause 1.

The Hon. R.I. LUCAS: I indicated yesterday that, the minister being kind enough in relation to a whole series of questions that I asked—and I think the Hon. Mr Darley had asked questions corresponding with my questions as well. I said yesterday—I misled the house—that I had a five-page letter; it is a seven-page letter, and I did want to put those responses on the record because, firstly, there are some issues where I would like to see the government's response put on the record, and, secondly, there are some questions that I do want to pursue. The letter is dated 14 November 2016:

Dear Mr Lucas

I refer to the issues that you raised on 3 November 2016 during debate on the Statutes Amendment (SAET) Bill 2016 (the Bill).

SAET's Jurisdiction

As I indicated in debate in the House of Assembly on 21 September 2016, and as the Deputy Leader of the Opposition acknowledged, recent national industrial relations changes have resulted in the enterprise agreement and awards jurisdictions of the State industrial relations system being largely confined to State public servants and local government officers. This residual jurisdiction is proposed to be conferred on the South Australian Employment Tribunal (SAET), along with a number of other jurisdictions, to achieve, as far as possible, a one-stop-shop for employment-related disputes.

The Government proposes that SAET will exercise jurisdiction in respect of certain private sector disputes, including apprentice matters under the Training and Skills Development Act 2008, and it already does so in respect of its workers compensation jurisdiction under the Return to Work Act 2014. On conferral on SAET, these new jurisdictions will have the advantage of SAET's focus on low-cost and speedy dispute resolution, which benefits employers and industry as well as workers.

The Government's position in respect of this Bill is generally to enable SAET to exercise certain employment-related jurisdictions in addition to the current courts or tribunals that can exercise them, but to otherwise retain the status quo. It is a misconception of the Government's position that the current common law jurisdiction of the Courts in respect of breach of contract actions will be expanded in SAET. The current unfair dismissal jurisdiction under Part 6 of the Fair Work Act 1994 will continue to exclude:

(a) a non-award employee whose remuneration immediately before the dismissal took effect is $100 322 (indexed) or more a year; or

(b) an employee who is an apprentice under a training contract under the Training and Skills Development Act 2008.

In relation to comments expressed to you by the Motor Traders Association (MTA), the prohibition in respect of representation by legal practitioners under the Training and Skills Development Act 2008 is not changed by this Bill, nor by the proposed amendments to the Bill filed by the Government on 2 November 2016. I note also that the President of SAET will have the discretion to allocate matters under this Act to any appropriately qualified and experienced members of SAET, whether Judges, Magistrates or Commissioners (formerly Conciliation Officers).

SAET members will, when required, utilise the industry expertise of Supplementary Panel Members when hearing some matters. Supplementary Panel Members will be used on a sessional basis in the same way as the panels of nominees that are an existing feature of some Acts that will confer jurisdiction on SAET. This includes the employer association-nominated panel members and employee association-nominated panel members that currently assist boards, tribunals and other bodies to hear matters under the Education Act 1972, the Equal Opportunity Act 1984, Fire and Emergency Services Act 2005, Public Sector Act 2009 and under the Work Health and Safety Act 2012.

Costs in SAET

The intention of the Government is that the status quo be preserved in relation to costs of proceedings where costs cannot currently be awarded, or can only be awarded in certain circumstances, that position will also apply in SAET. In particular, s110 of the Fair Work Act 1994 is not being amended by the Bill.

SAET's proposed criminal jurisdiction

Regulations made under the Summary Procedure Act 1921 currently declare some summary offences to be 'industrial offences'. Industrial offences can only be heard by industrial magistrates, who are magistrates assigned by the Governor under section 19A of the Fair Work Act 1994 to be industrial magistrates. Currently, the industrial magistrates who hear proceedings for industrial offences are Magistrates Ardlie and Lieschke who are also Deputy Presidents of SAET.

The Bill proposes to amend the Summary Procedure Act 1921 to repeal the provisions referring to industrial magistrates and industrial offences. Instead, the members of SAET will hear criminal proceedings for summary or minor indictable offences in the South Australian Employment Court.

Under the changes proposed by the Bill, the Court will deal with a charge of a summary or minor indictable offence in the same way that the Magistrates Court currently deals with such a charge under the Summary Procedure Act 1921. The criminal matters that can be heard in the Court will be assigned to the Court by legislation and, while this is a matter for Parliament, can be expected to be broadly similar to those offences that are currently 'industrial offences'.

Government Amendments in the Legislative Council

I provide the following information in respect of the four sets of amendments that the Government proposes to move in the Legislative Council in respect of the expanded jurisdiction of SAET.

Amendments filed 29 September 2016

Amendment 1 is explicit about which judicial officers can constitute the South Australian Employment 'Tribunal in Court Session' (otherwise known as the 'South Australian Employment Court').

This amendment was sought by the Commonwealth Department of Employment to ensure that only judicial members of SAET could constitute the Tribunal in Court Session and to mitigate the risk that the Tribunal in Court Session would not be considered a court within the meaning of s71 of the Commonwealth Constitution. The Attorney-General's Department has been liaising with the Commonwealth on this Bill as the Commonwealth would be required to amend its legislation or make Regulations so that the Tribunal in Court Session is regarded as an 'eligible State or Territory Court' under s12 of the Commonwealth's Fair Work Act 2009. This is so that SAET is able to exercise jurisdiction under that Act in regard to amounts owing to workers, and certain other matters under the Commonwealth Act.

Amendment 2 is consequential upon Amendment 1 and makes it clear that non-judicial members may deal with certain matters in the Tribunal in Court Session. This is common practice in contemporary courts which have non-judicial members, such as the Registrar or other officers, being able to adjourn proceedings or similar functions.

Amendment 3 is a consequential amendment to delete a clause in the Bill which would now be superseded by Amendments 1 and 2.

I note that the MTA opposes Amendments 2 and 3. However, I see no reason for concern as it will be a matter for the President of SAET to determine when it would be appropriate for a person who is not a SAET judge or magistrate to assist with the business of the Tribunal.

Amendments 1, 2 and 3 do not significantly change the position in the Bill as introduced in the Legislative Council. As a result, it was not considered necessary to consult with employee, industry or employer groups on these amendments.

Amendment 4 arose at the request of and in consultation with the Registrar of SAET and the Equal Opportunity Commissioner. This amendment would permit the Commissioner to refer a complaint to SAET whether or not conciliation in the commission has been attempted.

The MTA's opposition to Amendment 4 seems to be based on a misunderstanding as to how it is intended to operate. It applies only in respect of complaints of discrimination made to the Equal Opportunity Commission and will not apply to matters that have already been conciliated and concluded. The amendment will allow the Equal Opportunity Commissioner to take into account whether SAET is the preferable forum for conciliation to take place in a particular matter rather than the Commission itself. This may be because the discrimination complaint involves the same facts, circumstances and parties as a matter already being dealt with by SAET. There may also be other circumstances in which the Commissioner may regard SAET to be the preferable forum for conciliation to occur in a particular case and he or she has been given the broad discretion to determine that question as he or she sees fit.

No further consultation was undertaken in respect of Amendment 4.

Amendment 5 is a consequential amendment to the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 which had been overlooked in the initial drafting of the Bill and removes obsolete references from that Act. The Act also contains a list of judicial officers by their level of seniority in the judicial hierarchy. Generally speaking, the Act permits a judicial officer holding or acting in a particular judicial office to also exercise the jurisdiction and powers attaching to any other judicial office of a co-ordinate or lesser level of seniority. This amendment reflects the fact that Deputy Presidents of SAET may be either District Court judges or magistrates and makes more appropriate provision for their respective degrees of seniority in this list.

The MTA has misunderstood the effect of Amendment 5 as its purpose is not to remove industrial expertise or expert knowledge from SAET.

No consultation was undertaken on Amendment 5. It is a technical amendment.

Amendment filed 6 October 2016

Amendment 1 repeals sections 104 and 104A of the Fair Work Act 1994 as these provisions are duplicated in proposed new sections 219C and 219D of the Fair Work Act 1994 which are to be inserted by clause 58 of the Bill.

No consultation was undertaken on this Amendment. It does not change the effect of the Bill.

Amendment filed 20 October 2016

Amendment 1 preserves section 27 of the Fair Work Act 1994 which had been omitted from the Bill but is now restored by this amendment.

This matter raised in consultation with Professor Andrew Stewart from Adelaide University and the President of SAET.

As it retains an existing provision under the Fair Work Act 1994, no further consultation was undertaken on this Amendment.

Amendments filed 2 November 2016

Amendment 1 was drafted to ensure that the status quo in respect of appeals of decisions in dust disease matters is preserved.

As Amendment 1 retains an existing state of affairs, no further consultation was undertaken.

Amendment 2 reproduces current section 67 of the Training and Skills Development Act 2008 except that it will permit a party to proceedings to be represented by the Training Advocate or by an officer or employee of a registered association if the party is a member of that association.

This amendment will increase the flexibility and opportunities for a party to be represented in proceedings under the Act, particularly apprentices who may lack the skills and resources to effectively act in their own behalf in proceedings.

This amendment was in response to comments from various groups. In particular, the South Australian Wine Industry Association specifically raised the issue of representation by an industrial association is only permitted by leave and if the representative is acting gratuitously.

No further consultation was undertaken on this Amendment.

Kable decision

The decision in Kable v Director of Public Prosecutions (1996) 189 CLR 51 has the relevant effect that the South Australia Parliament cannot vest in a Court of the State any functions or powers that would impugn its institutional integrity as a potential repository of Federal judicial power.

The Government regards SAET as it is presently formulated to be a Court, rather than an administrative tribunal such as the South Australian Civil Administrative Tribunal (SACAT).

The Government intends to preserve SAET's character as a Court and has therefore taken steps in the drafting of the Bill to ensure that the Kable principle is observed. To that end, the Bill proposes to establish a part of the SAET that is the Tribunal in Court Session, and which is to be referred to as the South Australian Employment Court. This is proposed for constitutional reasons to enable SAET to exercise both non-judicial and judicial powers, with the latter capable of being exercised in the Tribunal in Court Session.

The approach taken in the SAET Bill has been modelled on the Industrial Relations Commission of New South Wales (which operates with a 'Commission in Court Session') which has been considered by the High Court.

Conciliation officers

Ten Conciliation Officers are currently appointed to SAET, on either a full-time, part-time or sessional basis. They are:

Anne Lindsay (who is the Manager, Conciliation Officers) (appointed to 31 May 2019);

Darryl Wilson (appointed to 31 May 2018);

John Palmer (appointed to 31 May 2018);

Jenny Russell (appointed to 31 May 2018);

Anthony Corrighan (appointed to 31 May 2018);

Andrew Neale (appointed to 14 June 2017);

Lucy Byrt (appointed to 14 June 2017);

Melinda Doggett (appointed to 14 June 2017);

Jodie Carrel (appointed to 14 June 2017); and

Gina Nardone (appointed to 14 June 2017).

The current salary for SAET's full-time Conciliation Officers ranges between $117,000 and $130,000.

Under section 16(3) of the South Australian Employment Tribunal Act 2014, a person is eligible for appointment as a conciliation officer only if the person

(a) is a legal practitioner of at least 5 years standing (taking into account, for that purpose, periods of legal practice and judicial service within and outside the State); or

(b) has, in the Minister's opinion, extensive knowledge, expertise or experience relating to a class of matter for which functions may be exercised by the Tribunal.

SAET's ten Conciliation Officers have diverse backgrounds and include legal practitioners as well as persons with experience as conciliation officers of the Worker's Compensation Tribunal, a public servant and workers compensation advocate within SA Unions.

The first, and thus far only, selection panel for the appointment Conciliation Officers to SAET was established in March 2015 and comprised:

SAET Deputy President, Steven Dolphin, (Chair of the panel);

SAET Deputy President, Mark Calligeros;

Jim Watson, (Ministerial Adviser, Deputy Premier's Office);

I will just repeat that, Mr President: 'Jim Watson, (Ministerial Adviser, Deputy Premier's Office)'. It continues:

Prema Osborne, (HR Business Partner, Attorney-General's Department).

I accepted all of the selection panel's recommendations of nominees for appointment as Conciliation Officers, including Ms Leah McLay and Ms Alison Adair who are no longer Conciliation Officers due to their subsequent appointments to the offices of, respectively, SAET Registrar and Magistrate.

SAET's Conciliation Officers will not be 'promoted' to the position of Commissioners. The Bill simply changes Conciliation Officers' title to 'Commissioner' to reflect that, in SAET's expanded jurisdiction, the Conciliation Officers could be engaged in functions beyond their current limited remit. The change also reflects a historical attachment expressed by some to the title 'Commissioner'.

I repeat that: 'The change also reflects a historical attachment expressed by some to the title "Commissioner".' It continues:

Deputy President Bartel and Commissioner McMahon

Under the Determination of the Remuneration Tribunal (No 5 of 2016) dated 23 March 2016, the salary of a Deputy President of the Industrial Relations Commission is $323,110 and the salary of a Commissioner of the Industrial Relations Commission is $280,990. Additional allowances may also be payable under separate determinations of the Remuneration Tribunal.

Comments received on the Bill from both employer and employee groups where strong in expressing the view that the retention of personnel with industrial relations expertise would be beneficial. These views were taken into consideration when determining whether the Parliament should legislate to terminate the positions of the Deputy President and Commissioner.

The Parliament could abolish any statutory position and stipulate the extent of compensation payable. Litigation on such a measure would be in the hands of the complainant.

The appointment of the Deputy President and Commissioner to SAET by the transitional provisions of the Bill also occurred at the request of the President of SAET and the President of the Industrial Relations Commission.

While it is ultimately a matter for the President of SAET, I expect that Ms Bartel and Mr McMahon, as Commissioners in SAET, will be used in a manner that reflects their particular skills and experience in the Industrial Relations Commission and also reflects the salary level paid to them, and that the benefit of their expertise will gradually be passed onto other Commissioners in SAET.

Accordingly, I do not agree that Ms Bartel and Mr McMahon will have 'no work' in SAET.

I confirm that it is not the Government's intention to replace Ms Bartel and Mr McMahon as Commissioners in SAET. However, the Government will replace, or add to, the number of Commissioners (i.e. those formerly Conciliation Officers) as the need arises.

Dual appointments—Industrial Relations Commission and Fair Work Commission

Deputy President Judge Hannon, Deputy President Bartel and Commissioner McMahon hold appointments to both the Industrial Relations Commission of South Australia and the Commonwealth's Fair Work Commission.

Under an agreement with the Commonwealth, the Commonwealth provides half of the base salary of Deputy President Bartel. The agreement has no expiry date.

Transitional provisions—clause 41

The practical effect of clause 41 is that, on the day on which it comes into operation (and assuming that there are no changes of membership of SAET in the interim):

SAET President Senior Judge McCusker will continue to hold that office and will be subject to ss10(2) and (8) of the SAET Act 2014;

The seven Deputy Presidents of SAET (Judges Hannon, Gilchrist and Farrell, Mr Calligeros and Mr Dolphin, and Magistrates Ardlie and Lieschke) will continue to hold that office and will be subject to s13(11) of the Act;

Deputy Presidents Calligeros and Dolphin will be appointed as judges of the District Court; and

the ten Conciliation Officers of the Tribunal will continue in office as Commissioners of the Tribunal on the same terms and conditions to which they were appointed Conciliation Officers.

I look forward to your support of This Bill and invite you to contact me should you wish to discuss these matters further.

Yours sincerely

John Rau

Deputy Premier

Attorney-General

Minister for Industrial Relations

I place that on the record because I had sought for those answers to be placed on the record at the end of the second reading. I think it is important that the government's response to the many questions that were raised during the second reading debate are placed on the record so that if and when issues arise in the future, we are aware of what the government's responses were and, indeed, in some cases, what the government's undertakings might have been.

I want now to pursue some questions, but before doing so I will read onto the record—because the MTA was one of the associations that provided a submission to the Liberal Party, and provided submissions to the government as well, in relation to the bill as it entered the Legislative Council and then the four sets of amendments as they kept coming from the government—this email that I received yesterday from the MTA. I might say that I provided a copy of the Attorney-General's written response to the MTA, so they were aware of the Attorney's responses. This is the MTA's submission to me as of yesterday:

We further note that the amendments tabled on November 2 substantially satisfy our concerns raised in previous correspondence, particularly in relation to having lay advocates appear before the SAET in matters concerning apprentices and trainees. We would note that the Attorney appears to have misinterpreted our concerns in relation to the appearance of lay advocates on behalf of parties appearing before the Tribunal. We note our concerns were the same as the SA Wine Industry Association and the AMWU.

The MTA would seek further clarification, given the Attorney General's comments, that industry associations and unions will have a legislated right to appear on the training and skills panels envisaged by the legislation. This was explicitly addressed in the exposure draft [of the legislation] but now is absent from the current form of the bill.

The MTA also notes that it would be useful for the legislation to direct the President, or their delegate, to have regard to industrial expertise when deciding who can preside over a hearing to ensure that appropriate persons are deciding matters before the Tribunal.

The first of my questions is: in light of the MTA's further submission, can the government provide clarification, given the Attorney-General's comments, that industry associations and unions will have a legislated right to appear on the training and skills panels envisaged by the legislation?

The Hon. P. MALINAUSKAS: I am happy to pass on the advice that I have received. If you are asking whether an industrial representative, on behalf of other employees or employers, can perform that function in the context of the Training and Skills Development Act, then that is not the intent here, so I have been advised.

The Hon. R.I. LUCAS: I can be no more specific than the question I put to the minister, and I will put it again. The MTA states that in the exposure draft that went out it was explicitly mentioned but it has now been removed. Whether that is by change of policy and design or whether it is inadvertence, I do not know. However, the MTA wants clarification, given the Attorney-General's position, as to whether industry associations and unions will have a legislated right to appear on the training and skills panels.

I am not looking for an answer in relation to the training and skills act. There are training and skills panels, which the minister's advisers would be aware of, and the industry associations are asking, not only on their behalf but also for the unions, whether they will have a right to appear on those training and skills panels. They are not so much interested in all the other things under the training and skills act, it is the training and skills panels.

The Hon. P. MALINAUSKAS: Some clarity is being sought in terms of the context of your question. Are you talking about dispute resolution panels or specifically training and skills panels? There seems to be some confusion about the context of your question.

The Hon. R.I. LUCAS: The letter from them says 'training and skills panels'. It does not mention disputes at all.

The Hon. P. MALINAUSKAS: I think we might have to take that on notice and seek more information from the Attorney's office regarding this because there is a decided lack of clarity around the question.

The Hon. R.I. LUCAS: Depending on whether we roll over into later this afternoon or tonight on these bills, I think I have received earlier correspondence from the MTA that relates to these training and skills panels which might throw further light on it. I cannot turn them up quickly but, as I said, if we continue the debate this afternoon or this evening then I will see if I can find that particular correspondence. The second part of their request yesterday was seeking a response to the question:

The MTA also notes that it would be useful for the legislation to direct the President or their delegate to have regard to industrial expertise when deciding who can preside over a hearing to ensure that appropriate persons are deciding matters before the tribunal.

I guess the first question is whether, under the current drafting of the legislation, that is going to occur or would occur anyway, that is, can the president or their delegate, under the current legislation, have regard to industrial expertise. Clearly, they can have regard to industrial expertise; do they have to have regard to industrial expertise when deciding who can preside over a particular hearing, or is that completely at the discretion of the president or their delegate?

The Hon. P. MALINAUSKAS: Some clarity is being sought regarding the Hon. Mr Lucas's question. Are you asking that question with respect to the Training and Skills Commission or with respect to appointments in the SAET?

The Hon. R.I. LUCAS: My reading of the MTA submission to me is that it is more general than the first question, which was the training and skills panels. I understand the difficulty, and perhaps to assist the minister I might seek further clarity from the MTA about their specific questions and provide them to the minister, and I am sure the minister will undertake to provide by way of correspondence or, if we are still going, in the chamber later on this evening, answers to the questions that the MTA have.

The Hon. P. MALINAUSKAS: Thanks very much. I think that is a wise proposition. If the Hon. Mr Lucas is willing to avail the government of the correspondence from the MTA to himself, I think that would assist in ensuring we have expeditious answers for the Hon. Mr Lucas.

The Hon. R.I. LUCAS: I have read completely the current correspondence there in relation to the issue, so I will seek further correspondence from them in terms of clarifying their specific questions and I will provide that to the government. If I can move on to other issues, the response I read on to the record from the government in relation to this indicated that in a number of areas the government did not believe that it needed to consult employer organisations about a number of amendments; we have had a full series of amendments that have been moved in the Legislative Council.

My question to the minister is: did the government consult any employer organisations or any employee organisations with respect to the amendments that have been moved to the legislation?

The Hon. P. MALINAUSKAS: I am advised that the consultation that took place regarding the amendments is reflected in the correspondence from the Deputy Premier to yourself, and there was no additional consultation beyond what has been canvassed in that correspondence to you.

The Hon. R.I. LUCAS: I take it that that is an assurance from the government that, in accordance with the minister's letter that I have read onto the record, there was no consultation with employee organisations and equally there was no consultation with employer organisations about these amendments, because certainly the employer organisations, or some of them, believe that they should have been consulted in relation to the amendment bill. They saw various exposure drafts, but feel aggrieved that they were not consulted in relation to significant further amendments, as they saw it.

If the government's position is that there was no consultation with employer or employee organisations, why did the government consult with Professor Stewart in relation to the amendments?

The Hon. P. MALINAUSKAS: My advice is that Mr Stewart was consulted during the course of the other consultation that had taken place previously with both employee and employer organisations, and there was not a subsequent engagement with Mr Stewart, just as in the case with the other respective associations.

The Hon. R.I. LUCAS: I accept that the minister might not be able to answer these questions, but is the minister, or his advisers more particularly, aware whether or not members of the South Australian Employment Tribunal were provided with copies of the amendments? I assume they must have been, but I do not know. If they were, did they consult with employer organisations or employee organisations, as they saw fit?

The Hon. P. MALINAUSKAS: I am advised that the President of SAET did receive copies of the amendments, but who the president shared those amendments with and talked to regarding them is not known to the government at this stage.

The Hon. R.I. LUCAS: I want to turn to some of the issues as they relate to Deputy President Bartel and Commissioner McMahon. As the Deputy Premier has indicated, they are being paid the not inconsiderable sums of $323,000 and $281,000 for their current workloads down there. The Deputy Premier, on behalf of the government, rejected my contention that they had no work to do down there. They were hard at work, according to the Deputy Premier, doing lots of useful things, I assume.

In terms of the discussions that I have had with the Deputy Premier and others, and I raised them in the second reading, there is a significant issue being raised about why the government, in what they say is a major restructure down there, is not only promoting all conciliation officers to commissioners—we will explore that issue in a tick—because some of them like the title, and I am not sure whether that ought to be sufficient justification for the parliament to promote them all to commissioners, or commissars—but there are significant concerns raised about whether or not there is value for money in terms of the work that Deputy President Bartel and Commissioner McMahon are doing.

My first question to the minister is: can the government at the moment answer, and if they cannot are they prepared to take advice to provide answers, to work out what Deputy President Bartel and Commissioner McMahon have actually done in each of the last three years? There must be something in terms of the workload. We are told, for example, that they have dual appointments in the Industrial Relations Commission and the Fair Work Commission. I am assuming there must be some recording of the number of cases or hearings, or however they are so designated, that judges the workload of people working in this jurisdiction.

Does the government have that sort of information for each of the last three years as to how much work these people have done? If the government does not, are they prepared to give an undertaking to provide or seek an answer in terms of how much work—as I said, the number of hearings or the number of cases or the number of 'whatevers'—these people are undertaking to earn their $300,000 a year?

The Hon. P. MALINAUSKAS: I understand that the commission regularly submits an annual report. That annual report may well contain the sort of information that the Hon. Mr Lucas is looking for. I might add that I understand that whenever there are trials, hearings and matters before the commission, they are a matter of public record and appear in various transcripts, cause lists and the like, to the best of my knowledge.

The Hon. R.I. LUCAS: I accept that the answer to the first question is that the government currently does not have an answer, but is the government prepared to seek from the appropriate authorities down there who govern the operations of these people answers to the questions that I have put; that is, the number of hearings or days of hearings or whatever it might happen to be?

Certainly, on my quick look at annual reports and things like that, it does not jump out at you as to answers to those particular questions. I might be corrected. Buried somewhere in the small print, there might be. Is the government prepared to take on notice to seek that information from the powers that be that govern the operation of the work of Deputy President Bartel and Commissioner McMahon, as I said, to the number of hearings or the number of trials or the number of cases that they are involved with for each of the last three years?

The Hon. P. MALINAUSKAS: I understand that the Deputy Premier has already advised the Hon. Mr Lucas regarding the workload of the various positions that the Hon. Mr Lucas is referring to and, as such, the government does not see any necessity to go into that detail in order to progress the passage of this bill, particularly in the context of the fact that some of the questions that the Hon. Mr Lucas is asking have already been attempted to be answered by the Deputy Premier, as I understand it.

The Hon. R.I. LUCAS: The tenor of the Deputy Premier's response to me has been that he does not think they do too much down there. His full letter to me said that it is not correct to say that they will have no work in SAET, but the tenor of the discussions I have had with the Deputy Premier is certainly open to the considerations—and I will refer to the letter. I put some strong views in the second reading.

The Deputy Premier confirms in his letter to me that the government had considered whether or not the parliament should terminate the positions of the deputy president and commissioner. I advise the minister the reason why the government and the minister are considering that—and clearly either the Premier or someone overruled that particular policy option—was this particular argument that there is very little work to be done, given that the whole jurisdiction of industrial relations virtually has gone to the federal arena. The letter I quote from the Deputy Premier states:

Comments received on the Bill from both employer and employee groups where strong in expressing the view that the retention of personnel with industrial relations expertise would be beneficial. These views were taken into consideration when determining whether the Parliament should legislate to terminate the positions of the Deputy President and the Commissioner.

One can read from that that the Deputy Premier and the government were considering abolishing those positions but, according to this particular letter anyway, took note of the fact that employer and employee groups had said that they wanted to keep some people there with industrial relations expertise.

I think some of the people whose views were submitted to the government and the opposition in relation to keeping industrial relations expertise would certainly distance themselves from the employer associations—maybe not from the employee associations, but certainly from the employer associations—and they put the view to me that they certainly would not want their comments about keeping industrial relations expertise there to be construed as saying they want to keep Deputy President Bartel and Commissioner McMahon in the jurisdiction.

Again, they had put the view to me—similar to the Deputy Premier's view—that, now that they have handed over most of this jurisdiction to the commonwealth, there is significantly less work to be done in South Australia in this particular jurisdiction. I take it that the government's position is that it is not going to provide any further information that might demonstrate the lack of work that Deputy President Bartel and Commissioner McMahon are doing there. That is their prerogative. If and when that information comes out, it will have to come out through a different mechanism, and I accept that. The Deputy Premier's letter to me stated, 'The parliament could abolish any statutory position and stipulate the extent of compensation payable.'

My question to the minister is: if the parliament decided to abolish the statutory position because there was no work or limited work to be done there, and it could be done by these newly promoted commissioners, why would compensation have to be made payable? Has the government received legal advice that, if the two positions were terminated, compensation would have to be part of any legislative package?

The Hon. P. MALINAUSKAS: I understand the government received legal advice from the Crown, articulating a position that is consistent with the remarks from the Attorney's letter; that is, that it would be in the parliament's authority to decide to terminate such a statutory position and whether compensation should be paid.

The Hon. R.I. LUCAS: Sorry, what was that bit about compensation?

The Hon. P. MALINAUSKAS: It would be within the parliament's authority and capacity to be able to decide if such positions were to be terminated and if compensation were to be paid.

The Hon. R.I. LUCAS: If compensation were to be paid? My question is: was the legal advice that the parliament, if it terminated these positions, would have to pay compensation—and eventually through appeal—because the next sentence from the Deputy Premier is, 'Litigation on such a measure would be in the hands of the complainant.' So, did the government have legal advice which said that, if we were to abolish or terminate these positions without paying compensation, there might be a cause of action for the two persons to get money out of the government?

The Hon. P. MALINAUSKAS: My advice is that the remark that you see in the letter from the Hon. Mr Rau that:

The parliament could abolish any statutory position and stipulate the extent of compensation payable. Litigation on such a measure would be in the hands of the complainant.

was the advice that was received from the Crown. I have been advised that remark reflects the Crown's advice to the government. I am also further advised that the government did not explicitly seek legal advice along the lines of the question that you have asked.

The Hon. R.I. LUCAS: I find it intriguing that somehow the legal adviser would just pop up with advice on that particular issue. Anyway, I put that to the side for the moment.

My recollection is that in the last 12 months or so we have abolished the statutory position, and there was a huge argument. Someone who was a former Labor candidate, Jeremy—was it Moore? My colleagues on the crossbenches will remember his name and prompt me. We abolished the position, and there was a debate at that time because he was threatening legal action. My recollection is that the government's position was that there would be no compensation payable; that was the end of the position and that was it, but it is a slightly different issue I accept.

It was an issue that was being put to me and we explored the option of whether or not we would move amendments and test the will of the parliament in relation to the issue, and I flagged that with the Deputy Premier in the discussions that I had. The concern I had, and I did not have access to legal advice, was that if we did that we would be opening the state up to some legal claim which would cost the state and the taxpayers money because of whatever reason there might be.

If the state had the power to say, 'There's no work for these people to do, we'll finish their positions now', and clearly we have the power to do that without paying compensation (other than their normal entitlements, or whatever it is), then that is one course of action. If, however, as the Attorney's letter says, 'Litigation on such a measure would be in the hands of the complainant'—and that does not say whether it is likely to be successful or not—clearly, some of us were concerned, and I certainly was concerned, about opening the state up to some legal action which would cost the state money in defending it and ultimately might end up having to pay out. You might as well leave these people down there doing nothing, or very little, for a period of time if that minimises the cost to the state.

To that end, the Attorney has said he does not intend to replace Ms Bartel and Mr McMahon as commissioners when they retire, I assume, or pass away—let's hope retire—but my question is: how much longer can Deputy President Bartel and Commissioner McMahon serve in their current positions? Is there an age factor that says they have to retire by a certain age, or is there a limit to the current terms of their appointment, or are they lifetime appointments until they die? What is the nature of their current appointment?

The Hon. P. MALINAUSKAS: The current or the new?

The Hon. R.I. LUCAS: The one they are going to be in, yes.

The Hon. P. MALINAUSKAS: Under the current appointment, it was tenure until the age of 65. Under the new appointment, their position would have tenure removed and they would go onto five-year contracts.

The Hon. R.I. LUCAS: That will be five years from the date of the proclamation of the legislation, I assume?

The Hon. P. MALINAUSKAS: My advice is yes.

The Hon. R.I. LUCAS: I assume—and I do not know the ages of these two people—that does not take them beyond the age of 65? That is, it does not extend their term beyond what would have been required. That is, are Deputy President Bartel and Commissioner McMahon currently under the age of 60, or, through this device, are they getting an extension of a term?

The Hon. P. MALINAUSKAS: I have been advised that in the case of Mr McMahon the answer to your question is no.

The Hon. R.I. Lucas: No what?

The Hon. P. MALINAUSKAS: I am just about to get there. No, the five-year term would not take him beyond the age of 65, so there is no benefit there to the extent that you see it as a benefit. In the case of Deputy President Bartel, it would result in an extension of one month.

The Hon. R.I. LUCAS: We will not be so churlish as to argue over a one-month extension.

The Hon. P. Malinauskas: I don't know, Rob!

The Hon. R.I. LUCAS: I do not know about you but I am not going to be churlish about one month. I turn to the issue of the conciliation officers. An aspect of the government's response to my questions that I found extraordinary was—because there was a lot of complaint and concern expressed by some stakeholders about this, in essence, promotion to the new title of commissioner—that the change also reflects the historical attachment expressed by some to the title 'commissioner'. Clearly, someone who has been appointed a conciliation officer could not have an historical attachment to the title of commissioner, I assume—

The Hon. P. Malinauskas: Could or could not?

The Hon. R.I. LUCAS: Could not because they have never had it. They might have an aspiration to be a commissioner but they have been appointed as conciliation officers, so I do not understand this historical attachment expressed by some. Is this people higher up the food chain who want to have more commissioners there rather than conciliation officers, or is it conciliation officers who would prefer to be called commissioners because it sounds more important and more grand than being called a conciliation officer? I am not sure what this historical attachment is, certainly from a conciliation officer viewpoint, because they have been appointed as conciliation officers.

The Hon. P. MALINAUSKAS: I understand that conciliation officers did not make representations around us seeking the title of commissioner, but rather, during the course of consultation advice, a view was heard from Andrew Stewart, the industrial relations expert, advocate and academic, that there is an historical significance and, indeed, a sense of authority that comes with the Industrial Relations Commission and, thereby, there would be a benefit to bestowing the title of commissioner upon conciliation officers, despite the fact that in real terms it does not represent a promotion in the context of salary or anything along those lines.

The Hon. R.I. LUCAS: Frankly, I find the advice from Mr Stewart and the government's response to that a nonsense. I think in the end if you have been appointed a conciliation officer, you are a conciliation officer. The commissioners were always at a higher level in terms of, supposedly, the workloads that they undertook and the work that they did there. Conciliation officers worked at another level, an important level, but they were at a lower level in terms of the work that they undertook.

The government's package that we are being asked to support is essentially that we will have class A commissioners and class B commissioners. That is, Commissioner McMahon, for example, will be a $300,000 or $290,000 commissioner class A (that will not be his formal title but he will be a commissioner), but these other conciliation officers will now all be commissioners albeit they will be paid up to $130,000. So, their titles will be the same; there will be no distinction in terms of the work that Commissioner McMahon will do, as opposed to these 10 new commissioners?

The Hon. P. MALINAUSKAS: I understand that there will be no distinction in terms of the title between Commissioner McMahon, for instance, and the new commissioners. However, in terms of the distinction, in terms of the responsibility or work, there may well be a distinction but that, of course, would be a decision of the president as they allocate matters as they arise. So, for instance, it would be open to the president to make determinations around potentially giving Commissioner McMahon more complex or more significant matters to him in light of his experience and higher office in the past. That would be open to the president to be able to utilise his services in such a way.

The Hon. R.I. LUCAS: Will the president also have the power to give the new commissioners—some of them, not all of them but some of them—if he or she so decides, that similar complex work that Commissioner McMahon might be given? Is there anything that restricts the discretion of the president to say that commissioners paid at $130,000 can do only to this level of work, and commissioners paid nearly $300,000 can only do this level of work? Or is it completely at the discretion of the president that the complex case could be given to a lower paid commissioner as much as it could be given to Commissioner McMahon, or vice versa?

The Hon. P. MALINAUSKAS: My advice is that it would be a matter of the president's discretion, and, presumably, the president would utilise their discretion in such a way that would best represent the interests of all parties concerned.

The Hon. R.I. LUCAS: Again, I just express my amazement at that structure, that you could have 11 people, potentially, down there; one is paid nearly $300,000 and the other 10 are paid $130,000 and it is ultimately up to the discretion of the president as to how complex or what work is undertaken by each individual, but that is the process the government is pursuing.

Can I turn to the issue of the conciliation officers, or soon-to-be commissioners: in relation to the panel, questions have been raised with me. The selection panel includes Deputy President Dolphin, Deputy President Calligeros, an HR business partner from the Attorney-General's Department and Mr Jim Watson, a ministerial adviser from the Deputy Premier's office. Can the minister advise whether this has been a standard procedure that the political arm, or the ministerial adviser to the Minister for Industrial Relations, has always been on the selection panel for appointments down at the Employment Tribunal?

The Hon. P. MALINAUSKAS: My advice is that this is obviously the first panel of its nature, by virtue of the fact that this is the first of such appointments that are being made. Regarding the make-up of the panel: the panel was put in place to be able to provide advice to the Deputy Premier, and therefore it was deemed as appropriate that the Deputy Premier have one of his staff on the panel to be able to provide that advice.

The Hon. R.I. LUCAS: If I could pursue that issue—I guess we are used to the procedures and I guess the minister is becoming familiar with the procedures under the Public Sector Management Act, in terms of appointments of public officers or officers within departments and agencies that report to him as minister—this is slightly different. We have always seen the courts and tribunals as slightly independent of ministers in terms of processes. Are the appointments of the conciliation officers absolutely at the discretion of the Deputy Premier, or the Minister for Industrial Relations in this case? He can consult the deputy presidents or the president down there in relation to who is appointed as conciliation officer, but it is a decision taken by the Minister for Industrial Relations as to who goes down there as the conciliation officers, as opposed to a decision that the President of SAET would take?

The Hon. P. MALINAUSKAS: My advice is that the president is consulted during the course of such appointments, but he is consulted by, in this case, the Minister for Industrial Relations, who then provides advice to the Governor, via cabinet obviously.

The Hon. R.I. LUCAS: I take it that the minister's response is that these, in essence, are—as opposed to the sort of appointments that might occur within a government where an agency reports to the minister which you, as a minister, would clearly have no authority over and it is the responsibility of your CEO—treated by government and in law as akin to almost judicial appointments; that is, clearly, the government appoints judges and magistrates.

The Hon. P. MALINAUSKAS: My advice is that that is correct.

The Hon. R.I. LUCAS: Regarding the issue of conciliation officers in part of the response and in other areas, there have been questions raised about the make-up or flavour of the conciliation officers. I am wondering whether the minister's advisers can indicate how many of the 10 persons who are currently appointed as conciliation officers and which ones have come from an employer organisation background, as opposed to an employee organisation background or from the Public Service, to which I think there was a reference?

The Hon. P. MALINAUSKAS: Unfortunately, I am not in a position to be able to answer that, but the advice I have received is that the majority of names here are people who have come directly from the workers compensation tribunal and only a small number—only two or three—of these people are new appointments versus people who have come from the workers comp tribunal.

The Hon. R.I. LUCAS: I accept that the minister is working on the fly, but if he could take that on notice, and if the Minister for Industrial Relations would not mind corresponding with me, because the contention has been put to me that none of the conciliation officers come from an employer organisation background. I do not know whether that is correct or not.

Clearly, the minister concedes that there is a person who has come from SA Unions. A workers compensation advocate within SA Unions has been appointed and others have suggested that one or two of these others have connections with employee organisations. The minister, in his past life as a union heavy and boss, admittedly from the right side of the fence, as in, right faction side of the fence, would be familiar with the operations of the jurisdiction that we are talking about.

He would also be familiar that there has been a long argument—which was also mirrored in the WorkCover board to which he was appointed at the same time as an employer organisation representative was employed. In a number of these areas, governments in the past have by legislation or by convention or dictate appointed reps of the employers and employees to these various bodies.

One of the concerns that we raised when this employment tribunal debate was set up and whether it should be in SACAT or not, was that the Labor government might go down the path of appointing more and more people from an employee organisation viewpoint and lose that balance which the employer organisations euphemistically call 'industry experience' but in essence what they are arguing is industry experience from both the union background and from an employer association background. That has been the history in this jurisdiction as well.

I think there was a committee that we were consulted on in terms of various appointments in the past—for the old commissioners, not these new ones—and judges, but certainly commissioners. I sat on it on occasions where nominees came up and it was the employer association's turn or it was the employee association's turn, and there were arguments about whose turn it was—and the balance. That is why I asked the question.

The minister says that he cannot answer it at the moment but, as I said, the contention is—and let me put it on the record—that that is not occurring amongst the conciliation officers and the concern that Mr Watson, with his well-known connections to the union movement and a particular version and faction of the union movement, might be inclined to support certain appointments through that process as a member of the selection panel.

So, if the minister can take the question on notice, and I accept that he has indicated that he will, and provide us with an answer in relation to that. He may well also have to take on notice section 16(3) of the Employment Tribunal Act which states that you are eligible for appointment if you are a legal officer with so many years standing but then states:

(b) has, in the Minister's opinion, extensive knowledge, expertise or experience relating to a class of matter for which functions may be exercised by the Tribunal.

That is the one where union advocates or employer association advocates would argue that they would like to be considered for selection there. In addition to providing those who have come from an employer association, can the minister indicate which of the 10 conciliation officers have been appointed under subclause (b): that is, the minister has had to use the discretion, if they are not lawyers, that they have extensive knowledge, expertise or experience relating to a class of matter for which functions may be exercised by the tribunal?

The Hon. P. MALINAUSKAS: I am more than happy to take that on notice. I add that I note the sentiments of the remarks of the Hon. Mr Lucas regarding various industrial positions in the past. The Hon. Mr Lucas is correct to point out that often, via convention, contention has dictated that there has been a balance of appointment from both employee and employer practices but I am advised that it is not specifically stipulated in the context of these appointments. However, I am more than happy to take on notice the question and bring back the relevant information.

Progress reported; committee to sit again.

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