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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-11-30 Daily Xml
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Statutes Amendment (SACAT) Amendment Bill

Committee Stage

In committee.

Clause 1.

The Hon. R.I. LUCAS: There is one aspect that I want to pursue during the committee stage, and I will limit it to clause 1 discussion. I have advised the government's advisers of the particular area that I want to raise some questions about, and it is the aspect of this particular bill which eventually transfers the Public Sector Grievance Review Commission jurisdiction to the South Australian Employment Tribunal next July. This is, as I understand, the impact of the legislation. A number of people have spoken to me since the bill was tabled in the house, and have asked me a series of questions. I must admit I was not in a position to answer them, so I thought that, during the committee stages of the debate, I would at least ask the question.

Some might not be able to be answered straightaway and some might need to be taken on notice. My question essentially is: given the new arrangements that are about to continue, as I understand it, does the government envisage, from a public servant's viewpoint, that, post the transfer to SACAT, there will be any change at all in the way public servants, who currently have access to appeal provisions under the PSGRC jurisdiction, access appeal provisions under the current jurisdiction? How might they access them after July with the SACAT?

The Hon. P. MALINAUSKAS: My advice is that, fundamentally, the machinery that will provide for and allow grievances and issues to be resolved under this bill, or under the SAET, will essentially be the same as is currently the case. Of course, there might be procedural issues that differ as a result of minor changes within the existing framework, but essentially all the same mechanics and machinery that govern how disputes are resolved will be the same.

The Hon. R.I. LUCAS: My understanding is the PSA have indicated support for the changes to the legislation. Have they not indicated any opposition to the changes, both in the past bill and in this bill?

The Hon. P. MALINAUSKAS: My advice is they have not expressed any opposition.

The Hon. R.I. LUCAS: With regard to the persons who currently constitute the Public Sector Grievance Review Commission, if you look at the Public Sector Act currently, the Governor can appoint a presiding commissioner and assistant commissioners to the commission. I am assuming, therefore, that persons who are appointed currently to those positions will become part of SACAT after July next year. Can the minister just explain if the people who have currently been appointed will automatically continue their roles post July next year, or will there be different people taking over but nevertheless intending to undertake the same tasks with the same functions?

The Hon. P. MALINAUSKAS: My advice is that, post-July 1 next year, all new matters will be heard by the SACAT. Regarding existing matters that are already in train, the existing commissioners within the PSGRC will continue until such time as those matters are resolved or concluded and, once that process has run its course, the PSGRC will be disbanded.

The Hon. R.I. LUCAS: Are the minister's advisers in a position to indicate who the members of the PSGRC are at the moment? Are there a limited number of people or is it a large number of people who rotate through the Public Sector Grievance Review Commission?

The Hon. P. MALINAUSKAS: My advice is that there are three commissioners of the PSGRC.

The Hon. R.I. LUCAS: Do you know the names?

The Hon. P. MALINAUSKAS: Kath McEvoy and Anne Burgess. Sorry, correction, my advice is that there are two and they are those names: Kath McEvoy and Anne Burgess.

The Hon. R.I. LUCAS: Can I just clarify that the minister's answer to the first question was that if there are appeals or reviews on foot by July—that is, those two commissioners are hearing an appeal or resolving a particular issue—that the legislation that we have will allow the Public Sector Grievance Review Commission to continue in operation for however long it will take to conclude those cases, and it will be at the end of those cases that the Public Sector Grievance Review Commission will selfdestruct and the employment tribunal will then take over. Is that how this legislation is intended to operate?

The Hon. P. MALINAUSKAS: Yes, with one small technical clarification: the Governor will dissolve it once it has finished its work.

The Hon. R.I. LUCAS: Is there available on a government website or in an annual report that is publicly available an indication for each year of the number of reviews that are taken to the commission and the nature of those reviews, with a description of them and the success or otherwise?

The Hon. P. MALINAUSKAS: Are you talking about the PSGRC?

The Hon. R.I. LUCAS: Yes, that is right. Is there something which is produced publicly which is available? If there is, could I get a reference to that, and if there is not, is the minister prepared to take on notice to provide some information in terms of the nature of the work that the Public Sector Grievance Review Commission has been undertaking?

The Hon. P. MALINAUSKAS: I am happy to take that on notice.

The Hon. R.I. LUCAS: I take it that the answer is that there is nothing publicly available at the moment?

The Hon. P. MALINAUSKAS: We do not know.

The Hon. R.I. LUCAS: I am happy for the minister to take that on notice and to provide either a reference to where I can actually find it or some information. The reason is to try to establish some baseline, that is, the extent of actions—

The Hon. P. MALINAUSKAS: The volume of work.

The Hon. R.I. LUCAS: Yes, exactly, the volume of work—and then ultimately, after the employment tribunal, we can have a look back on it to see whether or not that has increased or decreased and what the reasons might be for that. It is not the PSA who have contacted me but some individual members of the Public Service who have raised questions about the changes, and I have undertaken to raise the questions on their behalf during this particular debate.

In relation to what the Public Sector Grievance Review Commission has been able to do—and the minister is saying will now be able to continue to do—is it correct to assume that an executive appointment within the public sector cannot take a review of an employment decision, other than dismissal or review of a dismissal, to the Public Sector Grievance Review Commission?

The Hon. P. MALINAUSKAS: I do not have advice regarding whether or not people in those positions have access to the PSGRC now, but I am able to inform the chamber that I have been advised that if they can now they will not be able to once the new regime takes place.

The Hon. R.I. LUCAS: Because?

The Hon. P. MALINAUSKAS: Sorry, let me just say that again. I think I misinterpreted my advice. The advice is that if they cannot now they will not be able to in the future, so there is no change regarding executive access to the authority.

The Hon. R.I. LUCAS: If I could ask the minister to take on notice and confirm that they cannot now under the PSGRC. That is my understanding. The understanding of a number of executives who have been terminated recently within DPC, for example, is that they were not entitled to take a grievance to the Public Sector Grievance Review Commission because they were executives and they had signed five-year contracts and had been terminated under the provisions of those contracts.

The Hon. P. MALINAUSKAS: My advice is that your understanding is accurate.

The Hon. R.I. LUCAS: We have fresh in our minds the debate about unfair dismissal under the employment tribunal legislation, where the minister's response was that, in essence, anyone above $100,322, or something, does not currently have access to unfair dismissal and will not in the future. There are some non-executive appointments within the public sector at the ASO8 level, for example, who are earning more than $100,322. They are not executive appointments on contracts; they are akin to permanent public servants.

What is the current position in relation to a public servant who is not on a fixed-term contract as an executive, is a permanent public servant, and is dismissed? Does he or she have access currently under the Public Sector Grievance Review Commission to an unfair dismissal claim and, if he or she does currently, will he or she still have access to unfair dismissal under the employment tribunal regime from July next year?

The Hon. P. MALINAUSKAS: The PSGRC did not have jurisdiction over unfair dismissals; that was with the commission. So, in respect to your question regarding the PSGRC, they never had jurisdiction regarding unfair dismissals.

The Hon. R.I. LUCAS: And therefore our previous discussion in relation to who would have access to an unfair dismissal claim, a public servant would be treated exactly the same as someone employed in the private sector. If you earn under $100,000, would you have access to the employment tribunal if you believed that you were unfairly dismissed in the public sector?

The Hon. P. MALINAUSKAS: My advice is that yes, if you are under the threshold you have access and if you are over, you do not.

The Hon. R.I. LUCAS: Under the Public Sector Act, section 59—Right of review, it is a review of employment decisions other than dismissal. This section states:

This Subdivision provides public sector employees with rights to apply for review of employment decisions.

Generally. It:

…does not apply—

(a) to the dismissal of a public sector employee; or

(b) to a decision to select a person who is not a public sector employee as a consequence of selection processes conducted on the basis of merit…

My layperson's non-legal reading of that is that if there has been a merit-based selection process, and you have established a panel and you are unhappy with the decision, you cannot appeal to the Public Sector Grievance Review Commission currently, as a result of that. My reading of that, however, is that if there has not been a merit-based selection—that is, a minister or a CEO has tapped someone on the shoulder and said, 'You've got this particular position'—you do currently have access to a complaint or a review to the Public Sector Grievance Review Commission for that. If that is correct—and just a confirmation that that is correct—will that right continue after 1 July next year with the South Australian Employment Tribunal?

The Hon. P. MALINAUSKAS: My advice is that nothing is changing in that respect, so whatever is the case now will continue to be so under the new bill.

The Hon. R.I. LUCAS: Perhaps I could ask the minister to take on notice, if he is unable to provide a reply at the moment: is that in fact the case at the moment? In the circumstances that I have outlined, can a public sector employee currently take a grievance to the Public Sector Grievance Review Commission?

The Hon. P. MALINAUSKAS: I am more than happy to take that on notice.

The Hon. R.I. LUCAS: I am happy with that and I have no further questions on clause 1 or, indeed, any other clauses.

Clause passed.

Remaining clauses (2 and 3) and title passed.

Bill reported without amendment.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (22:33): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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