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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
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Bills

Statutes Amendment (South Australian Employment Tribunal) Bill

Committee Stage

In committee (resumed on motion).

Clause 1.

The Hon. R.I. LUCAS: When we were last discussing the bill, I raised some issues on behalf of the MTA. I subsequently received from them a copy of the exposure draft of the bill, but the government's advisers, I understand, had beaten me and them to the punch and they are now aware of the issue that was raised. I think I am advised that the minister may well have a response to the query that the MTA was raising.

The Hon. P. MALINAUSKAS: That is correct. I wish to address the issues raised by the Hon. Mr Lucas earlier this morning. In respect of the 10 current conciliation officers in the SAET, six of them were legal practitioners of at least five years' standing when they applied for the appointment. Four conciliation officers were appointed under section 13(3)(b) as persons with extensive knowledge, expertise or experience relating to a class of matter for which functions may be exercised by the tribunal. Those four persons were two existing conciliation officers of the Workers Compensation Tribunal, a public servant employed within the Equal Opportunity Commission and a workers compensation advocate within SA Unions.

Of the six persons who were legal practitioners of at least five years' standing, three were also existing conciliation officers of the Workers Compensation Tribunal. The other three included two lawyers in private practice and a public servant in the state government. None of the current 10 conciliation officers represented employer or industry groups. A total of 63 persons applied for appointment as conciliation officers. They included solicitors, barristers, public sector employees, academics and one union representative.

Strictly speaking, there were no employer or industry representatives in the pool of applicants for the appointment. However, some of the lawyer appointees may have, at some stage, worked for firms with employer industry clients or employee group clients. The selection panel did not have any regard to or preference for any particular lawyer applicant based on a background representing employer or employee groups.

With regard to the questions of the MTA about the changes proposed for the training and skills development legislation, I thank the Hon. Mr Lucas for his patience. I am advised that up until 1 July 2015, schedule 1 of the Training and Skills Development Act 2008 provided for the establishment by the minister of panels of assessors representing employer and employee groups for the purposes of sitting in proceedings before the Industrial Relations Commission.

Legislation was passed by parliament to delete schedule 1. This came into effect on 1 July 2015. Unfortunately, in the preparation of the consultation draft of this bill, it was not appreciated that schedule 1 had already been repealed. This was not noticed until after the consultation draft had been circulated in June 2016. As a result, the consultation draft indicates that schedule 1 of the Training and Skills Development Act 2008 was to be repealed and replaced by provisions in much the same terms, but referring to supplementary panels of the SAET.

Once it was appreciated that schedule 1 had been repealed in 2015, subsequent drafts of the bill, including the draft presently under consideration, no longer referred to schedule 1 of the Training and Skills Development Act 2008. As a result, there is currently no legislative provision for panel members and employer and employee representatives to hear matters in SAET under the Training and Skills Development Act 2008. As such, the bill as currently proposed maintains the status quo.

There is no legislative provision mandating that the president must have regard to industrial expertise when deciding who can preside over a hearing. However, it can be assumed that the president will at all times have regard to the relevant expertise of SAET members when determining who will hear particular matters.

I might add a further remark in clarification of some earlier points made earlier today. I am aware of at least one example of those conciliation officers having previously worked for a trade union in a representative—

The Hon. R.I. Lucas: Can you speak up?

The Hon. P. MALINAUSKAS: Yes, I can. I am happy to make clear through you, Mr Chair, that the remarks, in the advice that I have received here, are entirely accurate, but I can add for the sake of the record that there is one example of a conciliation officer, at some point in their prior history, having worked for a trade union.

The Hon. R.I. Lucas: Having worked for a trade union?

The Hon. P. MALINAUSKAS: At one point, yes. Well and truly prior to becoming a conciliation officer at the Workers Compensation Tribunal.

The Hon. R.I. LUCAS: Can I clarify that that is in addition to the one who is acknowledged as having been a workers compensation advocate for SA Unions? You are not talking about that individual, you are talking about another conciliation officer who formerly worked for a trade union?

The Hon. P. MALINAUSKAS: I cannot answer that question with certainty. I want to make sure that my remarks best reflect my knowledge, and what I can say is that at least one of those people, to the best of my knowledge, has been employed by an employee association. Whether or not that person went on, after their employment by a trade union, to work at SA Unions, I cannot say with absolute authority. They may be the same person, but they may not be, too.

The Hon. R.I. LUCAS: I am happy if the minister is prepared to take it on notice and if I could receive confirmation or advice from the Minister for Industrial Relations. From what the minister has said, I suspect his advice now is that there is the one former workers compensation advocate from SA Unions, who is one of the 10, and there is another one who formerly worked for a union. I suspect that is what the final advice will be, but I accept—

The Hon. P. MALINAUSKAS: I am happy to seek clarification.

The Hon. R.I. LUCAS: And I am happy to accept that assurance. I put it all within the context of this whole debate, and I do not think the minister was in the parliament when we went through this employment tribunal debate and SACAT. There was a lot of angst at the time from employer associations that the Labor government would stack the employment tribunal with people from a union background. We were given assurances by minister Rau, and others, that that was not the intention, etc. Two out of 10 is at the lower end of stacking, but it appears, at the other end of the continuum, that there is nobody amongst the 10 conciliation officers who has any association with an employer association.

As the minister acknowledged, given his previous background, he is well aware that the convention, and in some cases the actual law, required a balancing act in terms of trying to be fair; that is, in South Australia, we prided ourselves on having a better industrial relations system than some of the other states. Our strike record, and a whole variety of other things in South Australia, we at least in part put down to this particular approach that we had to industrial relations issues in South Australia; not solely I suspect, but that was part of the reason.

There is a growing concern amongst the employer organisations about the assurances that were being given at the time the Employment Tribunal was established. There was a debate at the time and this parliament ultimately determined to go ahead and establish an employment tribunal as opposed to the SACAT model. That is why, when we have these particular debates, employer organisations and others raise with me to ask the questions in relation to what is actually happening there.

The conciliation officers were a good example. They are now going to be called commissioners because that gives them some greater status in the world, as they would see it, but their contention is that that balance that used to exist is not existing and that we see now people from a union background but no-one from an employer organisation background. I accept the minister here does not have responsibility for it, but the Minister for Industrial Relations' advisers are here, and I can only place it on the record again and I do not seek a legislative response at this particular stage.

I am not sure how you would achieve it other than turning the employment tribunal legislation on its head, and this has essentially been a workable convention, a workable arrangement that governments by and large have accepted where there was some sort of balance between employer and employee organisation representatives in this particular jurisdiction. The minister has taken that on notice, and I accept that.

In relation to the MTA issue, I thank the minister for the advice that the officers have provided. From my viewpoint that clarifies the issue, and I suspect when the MTA see the response, they will acknowledge that. It was a further example, I guess, in essence of what the minister's adviser is saying that that particular provision used to exist up until the middle of this year where it essentially said you had to have employer and employee representatives on these panels. It was another example where that sort of provision was removed from legislation, and obviously for the reasons the minister has indicated had not been picked up in the original exposure drafts of the legislation.

If I could move on to a couple of other issues whilst we are on clause 1, could I have from the minister a confirmation that, in terms of the appointments in this particular jurisdiction, is it only the deputy presidents who are entitled to judicial pensions? I am sure the situation is that the new commissioners are not going to be entitled to any version of judicial pension, even though they are going to be called commissioners. Is Commissioner McMahon entitled to some version of a judicial pension or is it just Deputy President Bartel and the people who hold that level of office who have access to the judicial-type pensions?

The Hon. P. MALINAUSKAS: I am advised that none of the new commissioners will have judicial pensions. I am just seeking advice regarding Commissioner McMahon. I want to take this opportunity, though, while that advice is coming through, to pass on some reflections regarding the Hon. Mr Lucas' previous comments regarding that issue of convention which the Hon. Mr Lucas rightly points out was raised earlier in the day.

I, too, have heard some of the lament and frustration that has been expressed by some employer or chamber advocates arguing that a convention has been broken in respect to the various appointments in industrial tribunals of both jurisdictions. I must say, though, to the best of my knowledge, and I have borne witness to a number of these discussions in my previous career, that that was genuine lament regarding the federal jurisdiction rather than the state one. Of course, the federal jurisdiction is of far more importance these days than the state jurisdiction by virtue of the fact that the overwhelming majority of work that affects the private sector now occurs almost entirely within the federal jurisdiction rather than the state jurisdiction.

Furthermore, on analysis that has been provided to me of various appointments over the years, that convention, which I think was a long-held convention and a convention that has served the industrial relations system not just in this state but certainly in this country incredibly well for a long period of time—if one was looking for a key period of time when that convention was broken, it was during the Howard years.

I do not blame members of the opposition for those decisions. That set off a chain of events which inevitably, as is always the case when conventions are broken, resulted in a series of catch-up appointments during the course of the Rudd/Gillard years to various federal tribunals. When those appointments are looked at in isolation, I can understand how an argument was made by Chambers and other employer advocates that there was an imbalance going on. In actual fact, that imbalance was seeking to rectify the convention being broken during the Howard years.

I find that incredibly unfortunate. I think there are a range of conventions that exist throughout our system that seem to serve the community and the public interest incredibly well. It is always unfortunate when those conventions are departed with because it almost always sets off a chain of events, quid pro quo and back and forth, which does not leave anyone any better off. Regarding Mr McMahon, my advice is that he will not be entitled to a judicial pension.

The Hon. R.I. LUCAS: I thank the minister for his reflections, given his background, and also carriage of the bill in this house. I do not have an intimate knowledge of the federal jurisdiction and the appointments, but I have read a little of that time and I understand the tit for tat that went on at the federal level. Potentially, what happens in this state jurisdiction is that—you never know, one day there might actually be a Liberal government in South Australia and for every action, there might be an equal and opposite reaction.

If and when we ever have that fortunate situation in South Australia, you might have a minister for industrial relations who is a statesman or stateswoman and decides to go back to the convention and observe the convention. Equally, you might have a government that says, 'Well, this is the way the Weatherill Labor government approached appointments down there, and an equal and opposite reaction ought to be instituted by a Liberal government in South Australia.'

My personal view would be that a balancing provision which has worked pretty well for decades in South Australia would seem to make sense. That would be my personal preference, but ultimately the observations minister Malinauskas has made of the federal government might or might not eventually apply in the state jurisdiction, in terms of where we head. Whether that is actually going to be in the public interest and for the benefit of the state of South Australia is open for considerable debate and discussion. I will not prolong proceedings by going too far down that path this evening.

The other issue that I wanted to identify on behalf of some stakeholders was one of the issues I raised at length in the second reading, and the minister has responded in his answer. It was the issue in relation to unfair dismissal jurisdictions. AIG and a number of other groups who corresponded with us were arguing that they believed what the government was doing was opening up a provision of unfair dismissal jurisdiction at the South Australian Employment Tribunal, in particular for people earning over around $100,000 a year. I just want to clarify; I think I understand what the Deputy Premier has written to us in relation to it, and I will place it on the record. He says:

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…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.

I just want to clarify whether the minister and the government are saying that the concerns of the Australian Industry Group and some of the other employer associations are wrong; that is, there is nothing in this bill that will allow unfair dismissal actions to be taken by persons earning more than $100,322 indexed a year when currently they cannot under the current industrial relations arrangements.

The Hon. P. MALINAUSKAS: My advice is that nothing has changed.

The Hon. R.I. LUCAS: So, there are no unfair dismissal possibilities?

The Hon. P. MALINAUSKAS: My advice is that if you are over that threshold, no, you cannot use the jurisdiction.

The Hon. R.I. LUCAS: And under this bill you still will not be able to?

The Hon. P. MALINAUSKAS: Correct.

The Hon. R.I. LUCAS: I thought that was what the Deputy Premier was saying in the letter. I just wanted confirmation of that because the advice to some of these employer groups was that they believed that this bill would allow the opening up of an unfair dismissal jurisdiction in the employment tribunal. The minister has just confirmed that the advice is that is not the case and that is how I should read the letter. He has confirmed that in the debate, and I am happy to accept that assurance.

I will certainly relay the assurance from the minister on behalf of the government and the Deputy Premier's letter, more importantly, to indicate that is not the case. With that, because we had the seven-page letter that answered virtually all my questions on clause 1, any questions I have on the remaining clauses will be limited, if at all. I am happy to proceed beyond clause 1.

Clause passed.

Clauses 2 to 17 passed.

Clause 18.

The Hon. P. MALINAUSKAS: I move:

Amendment No 1 [Police–1]—

Page 16, after line 29—Insert:

(a1) Section 19—after subsection (1) insert:

(1a) The Tribunal sitting as the South Australian Employment Court may only be constituted by members of the Tribunal who are also judges or magistrates (sitting alone or in any combination as the President thinks fit).

This amendment is explicit about which judicial officers can constitute the South Australian Employment Tribunal in court session. This amendment was sought by the commonwealth Department of Employment to ensure that only judicial members of the tribunal 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 section 71 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 section 12 of the commonwealth 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.

Currently, the Industrial Relations Court of South Australia is an eligible state or territory court under the commonwealth legislation. It is proposed to ensure that SAET can exercise the same commonwealth jurisdiction upon the Industrial Relations Court being dissolved by this bill.

The Hon. R.I. LUCAS: I support the amendment.

Amendment carried.

The Hon. P. MALINAUSKAS: I move:

Amendment No 2 [Police–1]—

Page 16, after line 31—Insert:

(1a) Section 19—after subsection (5) insert:

(5a) In addition, a member of the Tribunal (not being a judge or magistrate), or a registrar or other member of the staff of the Tribunal, may assist with the business of the South Australian Employment Court to the extent that it may be appropriate to do so.

This amendment is consequential upon Amendment No.1 [Police-1] and makes clear that, notwithstanding the terms of a new section 19, a non-judicial member 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.

The Hon. R.I. LUCAS: The Liberal Party supports the amendment.

Amendment carried.

The Hon. P. MALINAUSKAS: I move:

Amendment No 3 [Police–1]—

Page 16, lines 32 to 37 and page 17, lines 1 to 4 [Clause 18(2)]—Delete subclause (2)

This is a consequential amendment to delete a clause previously in the bill which would now be superseded by amendments Nos 1 and 2.

The Hon. R.I. LUCAS: I support the amendment.

Amendment carried; clause as amended passed.

Clauses 19 to 49 passed.

New clause 49A.

The Hon. P. MALINAUSKAS: I move:

Amendment No 1 [Police–4]—

Page 29, after line 6—Insert:

49A—Insertion of section 11A

After section 11 insert:

11A—Right of appeal from SAET

Despite Part 5 of the South Australian Employment Tribunal Act 2014, an appeal against a decision of SAET in relation to a dust disease action (including in relation to any matter that is ancillary or related to a dust disease action that is the subject of the proceedings) lies—

(a) in the case of an interlocutory order made by SAET—to the Supreme Court constituted of a single Judge; or

(b) in any other case—to the Full Court of the Supreme Court.

The intent I propose to section 11A is to preserve the status quo in respect of appeals from decisions in dust disease matters. Section 11A reproduces the effect of the appeal provisions currently applying in respect of matters in the District Court. If part 5 of the SAET Act were to apply in respect of dust disease matters heard in SAET, a new immediate layer of appeal rights would apply. However, this would lead to an increase in costs and delay. It is the government's intention not to impose any additional costs or delays in resolving these sensitive matters. This amendment also ensures that, whether a dust disease matter is heard in SAET or in the District Court, the same rights of appeal would apply.

The Hon. R.I. LUCAS: The Liberal Party supports the amendment.

New clause inserted.

Clauses 50 and 51 passed.

Clause 52.

The Hon. P. MALINAUSKAS: I move:

Amendment No 1 [Police–3]—

Page 33, after line 42—After inserted section 12 insert:

12A—Advisory jurisdiction

(1) SAET has jurisdiction to inquire into, and report and make recommendations to the Minister on, a question related to an industrial or other matter that is referred to SAET for inquiry by the Minister.

(2) The jurisdiction conferred on SAET under subsection (1)—

(a) is not to be assigned to the South Australian Employment Court; and

(b) does not extend to inquiring into the South Australian Employment Court or matters that may be brought before the Court or that are being dealt with, or have been dealt with, by the Court.

This amendment preserves section 27 of the Fair Work Act 1994. This is the effect of proposed section 12A(1). Proposed section 12A(2) is intended to make clear that the power of the minister to refer a matter to SAET for inquiry, report and recommendations is not a power that can be exercised by the tribunal in court session and is not a power that can be exercised in respect of matters that are within the jurisdiction of the court. It is inappropriate for the South Australian employment court to perform these functions of inquiry and report and is equally inappropriate for the courts judicial functions to be the subject of such powers.

The Hon. R.I. LUCAS: The Liberal Party supports the amendment.

Amendment carried; clause as amended passed.

Clauses 53 and 54 passed.

New clause 54A.

The Hon. P. MALINAUSKAS: I move:

Amendment No 1 [Police–2]—

Page 42, after line 23—Insert:

54A—Repeal of Chapter 3, Part 5, Division 2

Chapter 3, Part 5, Division 2—delete Division 2

This amendment repeals sections 104 and 104A of the Fair Work Act 1994. 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.

The Hon. R.I. LUCAS: The Liberal Party supports the amendment.

New clause inserted.

Clauses 55 to 92 passed.

New clause 92A.

The Hon. P. MALINAUSKAS: I move:

Amendment No 4 [Police–1]—

Page 56, after line 5—After clause 92 insert:

92A—Amendment of section 95B—Referral of complaints to Tribunal

Section 95B—after paragraph (b) insert:

(ba) is of the opinion that the matter should be transferred to the Tribunal (whether or not there has been an attempt to resolve the matter by conciliation);

Ordinarily, a complaint of discrimination by the Equal Opportunity Commission would be subject to conciliation within the commission. Currently, where the Equal Opportunity Commissioner considers that a discrimination complaint cannot be resolved by conciliation or conciliation has not been successful, or in certain cases where the complainant requires the commissioner to refer a complaint to the tribunal, the commissioner must refer the matter to the Equal Opportunity Tribunal for hearing and determination.

The bill proposes to confer the Equal Opportunity Tribunal's jurisdiction on SAET. Conciliation is also an important feature of disputes commenced in SAET. SAET has several officers whose primary function is to attempt conciliation of disputes before they are referred to SAET's judicial officers. This amendment would permit the commissioner to refer a complaint to SAET whether or not the conciliation in the commission has commenced or has been concluded.

The amendment will allow the 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. One example would be a pregnancy-based discrimination complaint and an unfair dismissal claim on the same grounds. This amendment will enable both matters to be conciliated in SAET at the same time and, if conciliation is unsuccessful, then move on to resolution by SAET's judicial officers.

This amendment avoids the parties potentially having to split a dispute and undergo conciliation in two different bodies, the commission and SAET, which has often delayed the resolution of matters in the commission that cannot proceed to conciliation until a dispute in the other forum has been resolved, or vice versa. 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 the question as he or she sees fit.

The Hon. R.I. LUCAS: The Liberal Party supports the amendment.

New clause inserted.

Clauses 93 to 107 passed.

New clauses 107A and 107B.

The Hon. P. MALINAUSKAS: I move:

Amendment No 5 [Police–1]—

Page 62, after line 34—Insert:

Part 12A—Amendment of Judicial Administration (Auxiliary Appointments and Powers) Act 1988

107A—Amendment of section 2—Interpretation

(1) Section 2, definition of judicial office, paragraph (b)—delete 'Judge of the Industrial Court,'

(2) Section 2, definition of judicial office, paragraph (ba)—delete paragraph (ba) and substitute:

(ba) the office of a Presidential member of the South Australian Employment Tribunal (other than a Presidential member who is a Magistrate);

(3) Section 2, definition of judicial office, paragraph (d)—delete ', Magistrate or Industrial Magistrate' and substitute 'or Magistrate'

(4) Section 2, definition of judicial office—after paragraph (d) insert:

(da) the office of a Presidential member of the South Australian Employment Tribunal where the Presidential member is a Magistrate;

107B—Amendment of section 5—Power of judicial officer to act in co-ordinate and less senior offices

(1) Section 5(1)—delete 'Subject to subsection (1a) and (2), a' and substitute 'A'

(2) Section 5(1a)—delete subsection (1a)

(3) Section 5(2)—delete subsection (2)

These are consequential amendments to the Judicial Administration (Auxiliary Appointments and Powers) Act 1988, which had been overlooked in the initial drafting of the bill. The amendments remove reference in this act to the offices of the judge of the Industrial Court and industrial magistrate, and also remove references to the Industrial Court, which will be dissolved by this bill under the Workers Compensation Tribunal (which was dissolved in March 2016). The act 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 coordinate, or lesser level of seniority. This amendment also reflects the fact that Deputy Presidents of SAET may be either District Court judges or magistrates, and may move appropriate provision for their respective degrees of seniority in this list.

The Hon. R.I. LUCAS: The Liberal Party supports the amendments.

New clauses inserted.

Clauses 108 to 143 passed.

Clause 144.

The Hon. P. MALINAUSKAS: I move:

Amendment No 2 [Police–4]—

Page 73, lines 30 to 33—Delete clause 144 and substitute:

144—Substitution of section 67

Section 67—delete the section and substitute:

67—Representation in proceedings before SAET

(1) The following provisions govern representation in proceedings (other than appellate proceedings) before SAET under this Division:

(a) a party to the proceedings may be represented by—

(i) the Training Advocate; or

(ii) if the party is a member of a registered association—an officer or employee of the registered association acting in the course of employment with that registered association;

(b) a party to the proceedings that is a body corporate may be represented by an officer or employee of the body corporate;

(c) a party to the proceedings may be represented by another person with leave of SAET if—

(i) SAET is satisfied that the party will be disadvantaged if the party is not represented by another person; and

(ii) the other person is acting gratuitously.

(2) However, a person acting as a representative of a party under subsection (1) (other than the Training Advocate) cannot be a legal practitioner or a registered agent.

(3) In this section—

registered agent means a person who is a registered agent under the Fair Work Act 1994;

registered association means a registered association under the Fair Work Act 1994.

I believe this is the last government amendment. This provision reproduces the 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 on their own behalf in proceedings.

The Hon. R.I. LUCAS: The Liberal Party supports the amendment.

Amendment carried; new clause inserted.

Remaining clauses (145 to 161) and title passed.

Bill reported with amendment.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (22:13): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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