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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-11-17 Daily Xml
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Holidays (Christmas Day) (No. 2) Amendment Bill

Final Stages

The House of Assembly agreed to the bill with the amendment indicated by the following schedule, to which amendment the House of Assembly desires the concurrence of the Legislative Council:

New clause, page 2, after line 15—

Insert:

3A—Amendment of section 3B—Christmas Eve and New Year's Eve

Section 3B—after its present contents (now to be designated as subsection (1)) insert:

(2) However, subsection (1)(a) does not apply to 24 December in a particular year if that day falls on a Friday.

The Hon. T.A. FRANKS (00:54): I move:

That the message be taken into consideration forthwith.

The council divided on the motion:

Ayes 12

Noes 7

Majority 5

AYES
Bonaros, C. Darley, J.A. Franks, T.A. (teller)
Hanson, J.E. Hunter, I.K. Maher, K.J.
Ngo, T.T. Pangallo, F. Pnevmatikos, I.
Scriven, C.M. Simms, R.A. Wortley, R.P.
NOES
Centofanti, N.J. Girolamo, H.M. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. (teller) Stephens, T.J.
Wade, S.G.
PAIRS
Bourke, E.S. Hood, D.G.E.

Motion thus carried.

Consideration in committee.

The Hon. T.A. FRANKS: I move:

That the council disagrees with the amendment made by the House of Assembly.

The Hon. R.I. LUCAS: I think this is an entirely unreasonable position for the Legislative Council to take at 1 o'clock in the morning. This council has worked long and tiring hours in terms of getting through a very long private member's schedule for the day.

We have sat the house until 1 o'clock in the morning. Those of us who have been involved in the proceedings of the house have not been following what has been going on in another place today, other than via media. We now have something as important as the holidays act, where there was evidently debate where there was, I am advised, an amendment moved to the legislation downstairs and it was passed.

I do not have the bill file with me. I have no idea how people voted in the House of Assembly. I have not had the opportunity, as the representative, as the Leader of the Government in this chamber, to speak with my colleagues in the House of Assembly, and at 1 o'clock in the morning, when we are sitting today at 11 o'clock—

The Hon. S.G. Wade: Only 10 hours away.

The Hon. R.I. LUCAS: Whatever it is—10 hours away.

Members interjecting:

The CHAIR: Order! It is 1 o'clock in the morning. The Treasurer is on his feet and will be heard in silence on both sides.

The Hon. R.I. LUCAS: I think it is entirely unreasonable at this hour of the morning on an important piece of legislation like this to be trying to jam something through. I can imagine the uproar there would be if the government decided at 1 o'clock in the morning, without any notice to anybody, to jam through a piece of legislation or amendments to a piece of legislation as important as this without any discussion with anybody beforehand. As I said, some of us have been in this chamber on and off for all of the day handling important private members' business and have not been in a position to follow the debate in another place to discuss with our colleagues in another place in relation to the provision.

I see that the message in front of me, which evidently the Hon. Ms Franks wants to jam through tonight, says, 'Amendment of section 3B—Christmas Eve and New Year's Eve'. My understanding was that, whilst there are Christmas Eve and New Year's Eve half-day public holidays, the amendment was only in relation to Christmas Eve. I was advised two days ago that one of the crossbenchers in another place supported just doing it for Christmas Eve. Another crossbencher was supporting doing it for Christmas Eve and New Year's Eve.

As I said, I do not have the bill file with me. I have not had a chance to have a look at the debate in another place, and at 1 o'clock in the morning we are being asked to jam this particular provision through. As I said, it is not as if we are going to disappear for two weeks and not come back or come back in two weeks' time. We are sitting in 10 hours' time, when at the very least people can have the opportunity to have a look at whatever it is we are being asked to vote on and be required to have a vote on it tomorrow, if that is the majority view of the chamber. I do not think that is an unreasonable position for this chamber to adopt at 1 o'clock in the morning.

Whilst I was not in a position to speak to the motion because it was a procedural motion, as I understand it, I will move, if I am entitled to, to report progress on the basis that we will have the opportunity if the majority decides, at any stage today between 11 o'clock and whenever we get up at 6 o'clock or whatever the hour of the day is today, to debate this particular issue.

But, surely to goodness, it is not unreasonable to ask members of this chamber to be given the opportunity to have a look at what we are being asked to vote on, to take advice from our colleagues in another place and to consider what our position might be in relation to the drafting of the particular amendments. Those who might be in the majority or have a view in this particular chamber will have the chance to express that view later on today, so I move:

That progress be reported.

Ayes 8

Noes 11

Majority 3

AYES
Centofanti, N.J. Darley, J.A. Girolamo, H.M.
Lee, J.S. Lensink, J.M.A. Lucas, R.I. (teller)
Stephens, T.J. Wade, S.G.
NOES
Bonaros, C. Franks, T.A. (teller) Hanson, J.E.
Hunter, I.K. Maher, K.J. Ngo, T.T.
Pangallo, F. Pnevmatikos, I. Scriven, C.M.
Simms, R.A. Wortley, R.P.
PAIRS
Hood, D.G.E. Bourke, E.S.

The Hon. T.A. FRANKS: I would like to speak to clarify, because the Treasurer, also the minister for industrial relations, whose portfolio this is, does not seem to know what happened in the House of Assembly before the lunch break this morning—when we were not sitting. It is 1 o'clock in the morning and it is very late, and imagine those people who have been working on Christmas Eve and get home at 1 o'clock in the morning, knowing that they had their penalty rates for Christmas Eve ripped away from them by the House of Assembly this morning and that the Legislative Council did nothing about it. What happened this morning—

The Hon. S.G. Wade: Can't it wait until 11 o'clock?

The CHAIR: Order!

The Hon. T.A. FRANKS: Well—

The CHAIR: Order! We will not have a conversation.

The Hon. T.A. FRANKS: Chair, this council made a decision and had a bill about Christmas Day as a public holiday. It was at the behest of a private member, because the minister for industrial relations had all year to act and did not, and now it is six weeks before Christmas—not just the 10 hours, it is six weeks before Christmas and workers and businesses want certainty. We will make it clear that the Legislative Council believes that Christmas Day should be a public holiday and that that should not come at the cost of the Christmas Eve public holiday, which is now long established. South Australia has fewer public holidays than many other jurisdictions in this country already. Those workers—

The Hon. S.G. Wade interjecting:

The CHAIR: Order! The Minister for Health and Wellbeing is out of order.

The Hon. R.P. Wortley: Totally.

The CHAIR: And so is the Hon. Mr Wortley.

The Hon. T.A. FRANKS: Time is of the essence; certainty is of the essence. The Marshall government has not acted. It has fallen to crossbenchers and the opposition to act, so the fact that we are here at 1 o'clock in the morning is indicative of those workers who tonight we will stand up for.

The Hon. R.I. LUCAS: There is a perfect example: the Hon. Ms Franks gets up in this chamber and makes untrue statements to this house in justification for support for the position that she puts. She claims—and it is just wrong, palpably wrong—that South Australia has fewer public holidays than other jurisdictions. In fact, it is quite the reverse: we actually have more public holidays than virtually every other jurisdiction in the nation.

The Hon. K.J. Maher interjecting:

The Hon. R.I. LUCAS: We do. For the Hon. Ms Franks to stand up in this chamber and to make a statement which is just palpably false, demonstrably false, she knows it to be false—

Members interjecting:

The CHAIR: Order! The Leader of the Opposition and the Minister for Health and Wellbeing will cease the conversation—

Members interjecting:

The CHAIR: Order!

The Hon. R.I. LUCAS: —is an absolute disgrace.

Members interjecting:

The CHAIR: Order! The Minister for Health and Wellbeing will be silent. The Treasurer has the call.

The Hon. R.I. LUCAS: —is an absolute disgrace, and that is the problem. You are debating legislation at 1 o'clock in the morning, and you have members getting up making all sorts of claims and statements which, on any particular exploration of the facts, would be shown to be false, yet we have the Hon. Ms Franks getting up and making those sorts of statements and claims in justification of her position. At 1 o'clock in the morning, that is the problem you have got in relation to this particular issue.

As I understand the position in the House of Assembly—and I am not sure which of the Independents voted which way in the House of Assembly—a number of the crossbenchers in the House of Assembly were not prepared to support the position of the Legislative Council and the position the Hon. Ms Franks was supporting. Why? Because they have been concerned by the impact of the changes that were going to be made to the Holidays Act on small businesses in South Australia, in particular the long-suffering hospitality and tourism industries which have been suffering for 18 to 20 months under the COVID-19 pandemic.

Members in this chamber and in the community generally have railed long and loud about the need for additional assistance for hotels, cafes, restaurants and those businesses that have been struggling during COVID, because they have been particularly impacted as a result of restrictions.

The government has responded and provided assistance, but a number of the crossbenchers in the House of Assembly, together with government members, are concerned about the impacts of the changes that have been made by the Legislative Council, and the end result is that 4½ days in a row from Christmas Eve to the Saturday, to the Sunday, to the Monday, to the Tuesday, these long-suffering small businesses will be paying penalty rates of 250 per cent for those 4½ days. That is the concern they have.

I think it was only on Thursday or Friday of last week that I got a letter of apology from the organisation that represents the independent retailers in South Australia. Members of the crossbench in this chamber have loudly proclaimed the virtues of the independent retail sector in relation to shop trading legislation, but the Master Grocers Association of Australia, who represent the Drakes, the Romeos, the Chapleys, the IGAs in South Australia, wrote a letter to me as the minister, apologised for the fact that their letter had been delayed and strongly opposed the provisions of the legislation on behalf of the independent retailers.

Members of this crossbench have often said how supportive they are of the independent retailers in South Australia. As I said, the independent retailers—the association representing the Drakes, the Chapleys, the Romeos and the other IGA family businesses—have strongly opposed the provisions that are being supported by the opposition and the crossbench in this particular chamber.

Of the crossbenchers in the House of Assembly, and there are five or six of them, enough of them obviously listened to the concerns of hotels, restaurants, cafes, IGAs and the smaller businesses being impacted by COVID and decided that they had to try to do something to respond to the criticism that these small businesses had outlined to them.

As a result of that, one of the crossbenchers successfully moved an amendment, which was supported by enough of them and government members, that will in essence provide some counterbalancing relief every six or 10 years or whenever it is that Christmas Day falls on a Saturday. I think the last occasion on which it occurred was around about 2010 or 2011, and prior to that it was 2004.

That is, for those members of the community and the union movement and others who were saying that those people worked on the Saturday should be entitled to the 250 per cent penalty rate, and that is an offset to the small businesses who are going to have to pay that, there would be this compensating offset of removing just for that particular year the Christmas Eve public holiday. My understanding of the position of one of the crossbenchers in the House of Assembly was this argument that South Australia was the only state where there was a crossbench member—

Members interjecting:

The PRESIDENT: Order!

The Hon. R.I. LUCAS: It was the only state where Christmas Day did not attract the 250 per cent penalty rate. My understanding is that that crossbench member, if he repeated in the house what he had been saying to me separately before the discussions—and I do not know whether he did, but certainly his position before the debate today, as I understand it, had been that at least in this way this would be some compensation.

In South Australia we are only one of two or three jurisdictions out of all the eight that actually have these half-day holidays on both Christmas and New Year's Eve. I think one other jurisdiction has it on one of the half days, and one other jurisdiction might have something similar to South Australia, which is both. But most of the jurisdictions do not have the half-day public holidays on Christmas Eve and New Year's Eve. If that is how the debate went in the House of Assembly, then that would have been the argument that I suspect was being used in the House of Assembly today, whenever it was being debated.

So we have the Australian Hotels Association, we have the restaurant and catering association and now we have the Master Grocers representing the independent retailers in South Australia together with a number of the other industry groups, such as Business SA, the motor traders, who have all indicated concerns about the impacts on business, employment and jobs in their particular sector.

The second point I would make, and I have made this point before, is that the government using taxpayers' money is providing a 200 per cent penalty rate for those members of the Public Service who will be required to work on the Saturday. That is what the former Labor government did in 2004 and 2010 or 2011, and we have indicated to the unions that we would do exactly the same as the former Labor government when these circumstances occurred previously.

Contrary to many of the emails I have been receiving and other members have been receiving that, if you are a hardworking nurse in a hospital such as The Queen Elizabeth or the Royal Adelaide, and 'you are taking away our penalty rates', that is not the case. The government, using taxpayers' money is going to pay not the 150 per cent penalty rate but the 200 per cent penalty rate for those who work on the Saturday. Of course, those who work on the Monday public holiday would be getting the 250 per cent penalty rate.

The government is proposing to do exactly the same as the former Labor government did for public servants or public sector workers. What we are talking about here is what employers have to pay to workers, using their money—not taxpayers' money. That is the decision that the parliament, this chamber and the House of Assembly have to take.

If this chamber rejects the particular compromised position put by the House of Assembly, the potential end result is that, in the end, there may well be no bill that goes through the parliament. That is, if the crossbenchers in the House of Assembly's position is that we—being the parliament—either accepts the compromised position that they have put or else they will not support the Legislative Council's position. In that circumstance, the end result of all of this will be that there will be no change. There will be no change to the legislation at all.

Members of the Legislative Council in the majority who, if they want to jam this through tonight at 20 past one in the morning, may well be setting in train a position where nothing happens because the House of Assembly in the majority refuses to agree to the position of the Legislative Council. Members who are wanting to jam this through at this particular hour of the morning should bear that possibility in mind as to what the potential position of the House of Assembly might be.

As I said, I trenchantly oppose the fact that we are being forced at this hour of the morning to have the debate when we could have had it in 9½ or 10 hours' time at 11 o'clock this morning, or later on today, and we still could have had a result by close of business today. On behalf of the government members, I trenchantly oppose being placed in this position.

For the second time now in the last couple of weeks, I place on the public record my objection to the position adopted by the Hon. Ms Franks in relation to some of these issues. She rails against the government either jamming its way through things or not consulting or not doing this, but when it suits the Hon. Ms Franks she will stand up in this chamber at 1 o'clock in the morning, not tell anybody anything about what is going on, and try to bring on a vote at 1 o'clock in the morning without doing it. As I said the last time the Hon. Ms Franks did this, if it is going to be Rafferty's rules, well then it is Rafferty's rules. So be it.

I just think it is an appalling way to try to run the proceedings of this particular chamber. There are other alternatives which are more reasonable, more sensible, they abide by the conventions that we generally operate under in this particular house. But when it suits the Hon. Ms Franks, she writes the rules for herself.

She stands up and moves a particular motion at 1 o'clock in the morning. If it was occurring on some issue that she found near and dear to herself and she felt she was being disadvantaged or not placed in a position to be properly briefed or consulted on, she would be jumping up and down screaming and yelling. So be it—that is the way things are going to operate in this particular chamber.

I think it is a sad process that has been commenced by the Hon. Ms Franks, but let it be on the record that if this is the way things go, the deterioration of the process of this chamber had been set in place by the Hon. Ms Franks and the responsibility rests on her shoulders and her shoulders alone.

The CHAIR: Just before we proceed, I want to confirm with the Hon. Ms Franks that she did actually move that the council disagrees with the amendment.

The Hon. T.A. FRANKS: I did indeed move at the beginning of that, before there was an attempt to report progress.

The CHAIR: I am going to put the question in the positive, so the question will be that the amendment made by the House of Assembly be agreed to.

Ayes 7

Noes 12

Majority 5

AYES
Centofanti, N.J. Girolamo, H.M. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. (teller) Stephens, T.J.
Wade, S.G.
NOES
Bonaros, C. Darley, J.A. Franks, T.A. (teller)
Hanson, J.E. Hunter, I.K. Maher, K.J.
Ngo, T.T. Pangallo, F. Pnevmatikos, I.
Scriven, C.M. Simms, R.A. Wortley, R.P.

The Hon. T.A. FRANKS: I move:

That a committee consisting of the Hon. K.J. Maher, the Hon F. Pangallo and the mover be appointed to prepare reasons for disagreeing to the amendment of the House of Assembly.

Motion carried.

The following reason for disagreement was adopted:

That Christmas is a time for giving, not taking away.


At 01:32 the council adjourned until Thursday 18 November 2021 at 11:00.

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