The Hon. Rob Lucas MLC

The Hon

Rob Lucas MLC



Statutes Amendment (Shop Trading and Holidays) Bill 2012

Wednesday, 28 March 2012

The Hon. R.I. LUCAS (15:32): I rise to speak to the second reading of the bill on behalf of Liberal members in this chamber. First, in relation to this particular debate and all that has gone around it, I indicate that it will demonstrate the enormous power of the shoppies union and its operatives here in South Australia and in the South Australian parliament.

One only has to look at the donations to the Australian Labor Party from the shoppies union in South Australia to see the enormous financial clout that the shoppies union and its operatives have over the Australian Labor Party and the Labor government in South Australia. A minimum of $1.2 million has been donated by the shoppies union to the Australian Labor Party since it was elected in the 2001-02 financial year. That clearly buys a significant amount of influence on a party such as the Labor Party and a government such as this—and that is only what is declared under the provisions of the disclosure requirements of electoral legislation in South Australia.

One is also aware of the enormous influence and support that the shoppies union provides in a range of other ways, through the provision of staff for campaigns in particular. One only has to look at the maiden speeches of newly elected members from the right in South Australia to see a litany of acknowledgements of paid officers of the SDA (or the shoppies union in South Australia), being acknowledged for their tremendous amount of work, and the financial assistance obviously being provided by the union, its members, and supporters to those members of the right who are elected to the caucus.

When one looks at the register of interests, one can see that just under 50 per cent of members of the government are members of one union: the shoppies union in South Australia. Given the potential complications of unnamed members and others, I will not actually list the members of the shoppies union and their dual membership of the Labor Party because of potential legal complications, but nevertheless when one goes through the register of interests, without putting a precise number on it, it is quite clear that just under half the members of caucus are members of the shoppies union.

The only reason some ministers, such as the member for Bright, become ministers in the end is by transference of union allegiance from the former union the member was a member of which, in essence, was an arts industry alliance—I am not sure of the exact title of it, the MEAA, I think—and eventually in the recent past she converted to the shoppies union and, miraculously, having done that, become a minister last year.

When one controls the purse, when one controls the numbers, one has significant influence. We saw that last year when the head of the shoppies union in South Australia, Mr Malinauskas, of the Malinauskas dynasty I have spoken on before (and I will not delay proceedings by referring again in detail to those), together with the Treasurer, Jack Snelling, had the power and influence to go to the former premier, tap him on the shoulder and say, 'You're time's up; we're going to install a creature of the left on the nomination of the right as premier.'

That is the tremendous power the shoppies union has in South Australia. So, when the shoppies union finalises a deal on behalf of its members, completely separate from the government of the day, with the head of Business SA here in South Australia (and I note without the going to the board of Business SA for approval or endorsement, but that is an issue for that organisation to resolve in terms of it is own governance), and at that stage presents the deal to the supposedly duly-elected, democratically-appointed Premier and leader of the state, Mr Weatherill, for his approval.

The deal is done, negotiated, finalised: this is the arrogance of the shoppies union in South Australia, the arrogance of its operatives, that it negotiates and concludes the deal, and only at that stage goes to the Premier of the state. Forget about the minister of the Holidays Act or minister for shop trading—he is an insignificant part of this, as we have seen over the last weeks and months when the Premier has had to take control of this debate and deal—and poor old the Hon. Mr Wortley; they took just about everything out of his portfolio and left that in there and then they realised well, hell, he can't handle this either, we'd better handle it ourselves, so the Premier has been handling the deal in relation to the issue.

So the Hon. Mr Wortley, as the minister responsible, was ignored. The deal then went to the Premier. Even during the negotiations and what we are evidently going to see in terms of the final deal that has been negotiated with a number of members in this chamber, that was a deal that had to be approved by Mr Malinauskas and the shoppies union; that is, the Premier was not allowed to, was not in a position or authorised to, was not able to negotiate the compromise, unless Mr Malinauskas and the shoppies union said to Mr Weatherill, 'We will now let you go ahead with this particular deal.'

That is the state of this government in South Australia, that is the state of the Labor Party in South Australia. If you have the dollars, if you give them money, if you control the preselections, if you control the appointment of premiers, if you control the appointment of ministers and if you control the appointment of ministerial staff into ministers' offices, then ultimately you are running the government of the state on issues that are of importance to you. Shop trading is clearly an issue of importance to the shoppies union, and one can understand that.

What this parliament is being asked to do with this whole deal, even with its negotiated compromises, in essence is to sanction the takeover of decision-making in this state on this issue by Mr Malinauskas and the shoppies union. The government cannot do anything, is not given approval to do anything, to agree to any changes, unless Mr Malinauskas and his union allow it. It is as simple as that; and, when we come to debate the government's amendments and the other amendments during the committee stage of the bill, we will see the sticky fingerprints of Mr Malinauskas and his colleagues from the shoppies union all over not only the original bill but also the amendments that the government and the Premier have been allowed to negotiate. That is the essential background to the legislation that we have before us.

I want now to look at the history of shopping hours deregulation in South Australia. It has been such a minefield that I do not propose to go through every aspect of the changes, but suffice to say that since the 1970s we have seen referenda, we have seen royal commissions and we have seen committees of inquiry to make changes to shopping hours in South Australia. The brutal reality is that, irrespective of government (and I say that advisedly, Liberal or Labor), the trend has been over each of the last decades—the seventies, the eighties, the nineties, the noughties and whatever we are up to now—for further liberalisation of shopping hours within South Australia. As I said, that is irrespective of the government of the day. It has occurred under Liberal governments and under Labor governments.

When I was first elected to this chamber in the early 1980s, believe it or not the issue in relation to shop trading hours—which was the most thorny issue of the day, a controversial issue which was opposed by the Labor Party for years and years—was in relation to red meat sales in South Australia. The then leader of the opposition in this chamber, the Hon. Martin Cameron, led the charge in relation to liberalising shopping hours in relation to red meat.

In 1984 and prior to that he moved a number of private member's bills. The situation, believe it or not, as ludicrous as it sounds, not that many years ago was that red meat could be sold in butcher shops either on late shopping nights, which was either a Thursday or Friday night, or on Saturday mornings, but it was not allowed to be sold on both those occasions. You had to make a choice as to whether you were going to sell red meat in a butcher shop on Saturday morning or on the one night of late night shopping—Thursday or Friday night—during that period.

There were three private members' bills controversially argued through that particular period in terms of liberalising access for working families and families to buy red meat at hours which best suited them. All the arguments of a similar nature that we are hearing now we heard during the 80s in relation to that bill. There were various things, including royal commissions, commissions of inquiry and a referendum in 1970, etc.

Then, again, in the early 1990s the Labor government made moves in relation to liberalising shopping hours and then in 1995, with the election of the Liberal government. In 1993 the former Labor government gave ministerial certificates of exemption to allow supermarkets to trade until 9pm on weekdays. That was a controversial issue at that time, that is, late-night trading until 9 o'clock on weekdays for supermarkets.

With the election of the Liberal government eventually, after a number of things occurred, in 1995 there was a bill which again further liberalised shopping hours in South Australia so that what we saw was an opening up of trading in the CBD on Sundays. That was the first occasion, in mid-1995, when we moved to Sunday trading. When one goes back to that particular debate now, everyone said at the end that this was going to be the beginning of the end—depending on which side you were on, I should say. There were those who supported it and those who opposed it said it was going to be the beginning of the end for a number of businesses.

In 1995 everyone (Labor and Liberal) said, 'That's it. We're not going to allow a further extension of trading hours,' because that was a special deal done for the CBD for Sunday trading in 1995. Everyone said at that stage, 'We're not going to allow Sunday trading in the suburbs.' Of course, what happened? In 2003, with the election of a Labor government this time, the government introduced a bill for Sunday trading in the suburbs, and the arguments used were on equity grounds.

There were competition principles which asked: how do you justify allowing a Coles to operate in the CBD on a Sunday and not allow the same Coles supermarket in Unley, Burnside, Norwood or Plympton to open to trade on a Sunday? This was a Labor government arguing that you had, on competition principles, to extend the trading options into the suburbs after both Labor and Liberal in 1995 saying, 'That's it; we've opened up the trading in the city; we're not going to extend it to the suburbs at all.'

The reality was that almost a decade later a Labor government came in and introduced those changes at that stage. It had a financial gun at its head in that the National Competition Council (or commission at the time, with Graeme Samuel) was saying that there would be financial penalties on the basis of competition if we continued to persist with a situation which penalised businesses in Burnside, Norwood or Plympton from opening at a time when we were allowing those same businesses or equivalent businesses to operate in the CBD.

Now we have this situation where we are going to have public holiday trading in this bill in the CBD. I know the argument that is being used: it is being used publicly. We had the most unusual situation of having the two Peters lobby the Leader of the Opposition Isobel Redmond and myself—the two Peters being Messrs Malinauskas and Vaughan, up until now the most unlikely duo of joint lobbyists that I could have contemplated. There they were, in the Leader of the Opposition's office, almost holding hands and hugging each other, supporting the deal and urging the Liberal Party.

Mr Malinauskas, to his credit, was quite frank as to why he was supporting this particular change. He was saying—and the argument he has been using to members of parliament as well, I know, because he has put it to us—that by doing this we will forever and a day prevent any further liberalisation of shopping hours in South Australia. This will be the end of it, because Peter Malinauskas said it will be. He will defy the tidal wave of evidence that we have seen over the last 30 or 40 years in relation to shopping hours under Labor and Liberal governments; he, Peter Malinauskas, so decrees, he has said that this will be the end of it.

I know he has put that to members of parliament. He has said, 'This is it; there will be no more.' He says that the reason he supported this was that he believed Business SA was an advocate for further liberalisation of shopping hours in South Australia, and in this way he would stymie Business SA. He would lock them into a position of achieving this. Indeed, whilst Peter Vaughan said, on behalf of Business SA, that their position would remain the same, he nevertheless, arm in arm and hand in hand, happily chimed in and said that this is the last chance for liberalisation of shopping hours; that it is either this or it's nothing, there will be nothing in the future.

As deluded as Mr Malinauskas is, whilst he has tremendous power now he will not have that power forever and a day. At some stage he will be promoted to state or federal parliament through the shoppies union, and he will become an operative within the state or federal parliamentary party. He is not in a position to bind future parliaments—or, indeed, future governments, Labor or Liberal.

As I have traced the history of shopping hours deregulation and liberalisation, it has been Labor and Liberal governments that have inevitably moved to further liberalise shopping hours in South Australia for all the obvious reasons at the time. Mark my words, whether it is in 10 years' time (it seems to happen about every 10 years) or 15 years, at some stage in the future a future parliament will be debating—as they did in 2003 under a Labor government—the issue of the inequity between a business in the CBD such as a supermarket being able to open, while less than a couple of kilometres away, in Unley or Burnside or Norwood or Plympton, exactly the same supermarket is not able to open.

That is the reality. Those who believe Mr Malinauskas' story that this is the end of it, that nothing more will ever happen, are flying in the face of history and in the face of the facts and what has occurred over the years. The reason it is inexorable—painful, but inevitable and inexorable—is that when one looks at this shop trading act it is a farce. Look at the regional areas of South Australia. With the exception of a small number of about five or six limited shopping districts, every area in regional South Australia can open any day of the week for the whole year. In my home town of Mount Gambier, every store can open on Christmas Day, Good Friday, ANZAC Day or any other day of the year.

For good reasons, many of them, or most of them, do not, but the shopping hours act that we are supporting here says that in regional areas they can open. And regional areas are not the far-flung areas from Adelaide. Mount Barker is in the regional areas—one of the growth areas of Adelaide, of which there has been much debate, is completely deregulated. The supermarkets and shops in Mount Barker can open on Christmas Day, Good Friday and ANZAC Day. They can do whatever they like. Just south of Aldinga, it is exactly the same; just north of Gawler, the interesting debate is going to be in relation to Roseworthy when the huge development potentially occurs there as part of the—whatever it is called, the greater Adelaide CBD—I forget the technical description. That area is totally deregulated in terms of shop trading hours.

So, that is the brutal reality. We are not talking about something which applies across the state; in terms of trading, we are talking about only that bit of the state within the areas of Mount Barker, Gawler, and Aldinga. And now we are talking about the central business district as defined by the terraces and the Torrens. In addition to that, any shop under 200 square metres can open whenever it likes. I know we have had views from the IGA group and others, but my local IGA in my suburb opens on Christmas Day, and that is terrific for all of us around the suburb that I live in, because we can go to the IGA on Christmas morning—it is generally open until 1pm on Christmas morning—and do all of our shopping on Christmas Day.

The Hon. R.L. Brokenshire: Couldn't you have done it before Christmas Day?

The Hon. R.I. LUCAS: Well, I could have done it. But the reality is that it is there, and they are opening and trading. We have not forced them. The reality is the act that we are supporting allows IGA—I think for supermarkets it might be under 400 square metres—but the local IGA in our suburb, and in many other suburbs, trades every day of the year, and certainly on Christmas Day. All of those smaller stores can open whenever they like—cafes, restaurants, delis, whatever—can choose to open whenever they wish. That is the situation that we have.

Then you have the exemptions for hardware stores, and heaven knows what else. I am not going to delay the chamber by going through all of them, but have a look at them. Basically, anyone who sells food can open whenever they want to—Christmas Day, Good Friday, ANZAC Day—whatever you intend to do. That is the state of the law that we have at the moment, and that is because it is a product of members like us over the years wrestling and agonising with the sorts of changes that we have made on this particular occasion, and that is inevitable, I accept that.

There are pressure groups, and it is not just the shoppies union, there are others who are advantaged by the current laws who will seek to maximise their advantage. There are those who are disadvantaged who will seek to get rid of the disadvantages in the law. The law that we have at the moment is a product of decades and decades of decisions taken by members like us responding to those particular pressures over the years.

The point I make in relation to this is that those people like Mr Malinauskas, who have said to members, 'This is it, vote for this because that finishes it, there will be no more,' are deluding themselves. The only issue is when, and under what government—Liberal or Labor—at some stage in the future. I know the Hon. Mr Brokenshire has flagged some potential amendments in the media in relation to that, but the reality is that you can amend whatever you want to amend but a future parliament and a future government can just amend the amendments away.

The Hon. R.L. Brokenshire: At least it has to come through the parliament.

The Hon. R.I. LUCAS: Well, they can all come through parliament.

The Hon. R.L. Brokenshire: This is not really through the parliament. This was done outside.

The Hon. R.I. LUCAS: Well, I don't know how you're going to stop that either. The shoppies union will always have the power with a Labor government in South Australia. They will not with a Liberal government, I can assure you. Mr Malinauskas will not be walking in and tapping Liberal leaders on the shoulder saying, 'Don't come Monday.' That is something for the province of the Labor Party.

That is the brutal reality of shop trading hours regulation in South Australia. I know what Mr Malinauskas and others have been saying, that this will be the end of it. All I am saying is, for those of us who can live long enough, in 10 or 15 years have a look at the parliament of the day debating it, and they will be debating the next step in relation to this. Mark my words: just as Labor came back in 2003 to say, 'We must extend Sunday trading to the suburbs on competition grounds,' the same arguments will develop over the next 10 years in relation to public holiday trading.

How do you say to the Competition Council, the competition commissioners, or whatever it will be at the national level under national governments, that you can say to one business in the CBD, 'You can trade and take all the business from everyone else on public holidays, but if you happen to be located two kilometres away we are not going to allow you, on geographic grounds, to trade, to protect your business and your employees and the jobs within your industry'? That is why Labor came back in 2003 with the changes to extend Sunday trading to the suburbs. As I said, in 10 years or so, at some stage a Labor or a Liberal government, on competition and other grounds, will inevitably need to respond to those sorts of pressures.

This issue has obviously been controversial, with two key groups of people both supporting and opposing the bill, or aspects of the legislation. The Liberal Party's position, as enunciated by Isobel Redmond, myself and others, is that we do support the liberalisation of trading hours in South Australia, and we support this particular step towards liberalising trading hours. However, we do not support the bribe, the payout or the buy-out to Mr Malinauskas's shoppies union in South Australia with penalty rates of 250 per cent for any of the hours to be worked on these two part-day public holidays on Christmas Eve and New Year's Eve.

There are many, many groups that I will read onto the record because they have been active as part of the SA Business Coalition, but indeed there have been others as well: the Australian Hotels Association, Clubs SA, the South Australian Wine Industry Association, the Restaurant and Catering Association, the ACAA, the Caravan and Camping Association, the Motor Trade Association, the South Australian Tourism Industry Council, the SA Liquor Stores Association, the Baking Associations of Australia, the Australian Automobile Dealers Association (AADA), Tourism Accommodation Australia, the YHA, Hosted Accommodation Australia Ltd., Service Station Division SA, the Boating Industry Association, the Shopping Centre Council of Australia, the Australian Newsagents Federation, the South Australian Dairyfarmers Association, the Supported Accommodation and Care Services group, and the South Australian independent liquor outlets, Sip'n Save.

Separately, we have received lobbies from the Aged Care Association, the Printing Industries Association of Australia, one of the national retailer groups whose exact acronym and name escapes me at the moment, and there are many, many others. I have listed just a number of them to indicate the diversity of the groups that are opposing this particular aspect of the legislation in relation to the 250 per cent penalty rates for Christmas Eve and New Year's Eve.

I am sure other members will go into some detail, but let me touch on some of the aspects, because they have been well canvassed in the media. The Business Coalition has highlighted, in the main, the essential unfairness of the legislation, that is, that small businesses from Ceduna to Mount Gambier, right across the State of South Australia, will have to bear the financial penalty, or cost, to allow a small group of retailers to open in the central business district for trading on public holidays. Their position is understandable. They say, 'Why should we, as a small business, struggling as we are in this state economy with the lowest growth prospects and growth performance of any state in the nation, be lumbered with the additional costs of two extra public holidays which do not exist anywhere else in Australia?'

I have heard members in this chamber say the economy is struggling, there are problems for businesses with our tax impost on businesses, our WorkCover premiums are the highest in the nation, our tax regime is the highest and toughest in the nation, our threshold for payroll tax is terrible compared to the other states, and our land tax provisions in this state (particularly above $1 million for commercial operators) are the worst in the nation. All of those costs are being imposed on families and, in particular, small businesses in South Australia. We bemoan those costs in South Australia yet this parliament, potentially, is going to be voting to add to those costs for small businesses in South Australia.

We are saying: let us be the nation's leaders not in anything else such as economic growth, job growth, retail sales growth or anything like that, but let us lead the nation in the number of public holidays we can dream up to increase the cost base of businesses in South Australia. If we cannot lead on the indicators that everyone would like to lead on, let us lead on the number of holidays we can think up—and we will not even think about a real holiday for a real day: we will think about a part-day public holiday that starts at 7 o'clock at night. The original plan was 5 o'clock at night and now it is 7 o'clock at night. We will have public holidays starting at 7 o'clock to midnight for two extra days in the year.

At least this Labor government and its supporters will be able to say we are leading the nation in the provision of public holidays for our workers. I can see why Mr Malinauskas, the shoppies union and the other unions that have supported this campaign would jump up and down and say that is a wonderful thing but, for the life of me, I cannot understand why Mr Vaughan and Business SA would be holding hands with Mr Malinauskas and jumping up and down in unison on increasing the cost base in South Australia, again, on the quite erroneous basis that they claim, that this is the last chance for any change in relation to shopping hours regulation in South Australia.

It is for Mr Vaughan and Business SA to argue their case with businesses in South Australia but, certainly on the information available to me, not only have members of Business SA resigned but they have also taken action in lobbying the board of Business SA in relation to not only this issue but how on earth that organisation managed to get itself into this predicament.

One would imagine, with the imminent passing (in a position sense) of Mr Vaughan from the position of chief executive of Business SA in June of this year, there will be the opportunity, one would hope, for possibly a newly elected or re-elected board of Business SA to look at its own governance arrangements and perhaps make the necessary changes to ensure that such a situation cannot occur in the future where a deal can be done without consultation with everyone else that will be implicated and affected in South Australia, in the way that this particular deal has been done.

There is much evidence—because there are a number of other major issues I need to address today—I will leave to my colleagues to address, in particular those who represent regional communities. We know the evidence of the motor traders and others who have indicated their views, and the pressure will be on regional communities, as opposed to big population areas such as the suburbs of Adelaide. In the regional communities, where, in terms of population or travellers, it is a marginal thing for a business to open between 7 o'clock and midnight on Christmas Eve or New Year's Eve—and, in particular, we are talking about service stations and businesses like that—in the view of those business associations it is likely that a number of those services and businesses will make the decision not to trade on those nights.

I am sure that in other areas where the populations are bigger and they can justify it some will continue to trade. It will just mean that the rest of us end up having to pay significantly increased costs for whatever service is being provided in those establishments on those nights. Again, it impacts the cost base of working South Australian families, and those who seek entertainment, hospitality or other services on Christmas Eve or New Year's Eve, which, because of the 250 per cent penalty rate, will be significantly higher.

Another group has raised its head, and they are not the small businesses: they are the associations, the non-government organisations, that provide 24-hour services that will be impacted—Mr Paul Carberry from the Aged Care Association and a number of others, such as the disability services sector—and I know there has been contact from those within the sector that provides women's shelters, men's shelters or youth shelters. I understand that my colleague the Hon. Michelle Lensink, who has some background in this area, will be able to put on the record in some greater detail the concerns that have been raised in that area.

We understand that as part of the final deal (and I have some questions to put to the minister at the closure of my contribution) there have evidently been some undertakings given in relation to state-funded, non-government organisations. It is obviously going to be important that we are aware of what those deals are before debate concludes on the legislation because I would not trust this government, or this Premier as far as I could drop-kick him—and that is not very far at all.

My advice to any other members who are flirting with the idea of trusting him is that they do not. If you are going to do a deal, do the deal whilst you have the leverage and can see the colour of their eyes and the pile of money they are going to promise in relation to supposedly additional moneys to cover the increased costs because, once the bill is through, there is no leverage. Once the bill is through, they can say what they wish in terms of what they are prepared to offer.

I think that is important as another reason the minister needs to come to this house before the bill is concluded and passed in this house to provide the precise details of what is going to be done for the non-government organisations. It does not suffice to say, 'We are going to negotiate a package.'

What we need to know is who is being included and what groups are being included within this negotiated package. The press release says 'state funded' (again, my colleague the Hon. Michelle Lensink will understand the funding arrangements better than I), but if the aged-care sector is a federally-funded sector, what is being done, or proposed to be done, in relation to compensating those organisations that inevitably have increased costs because they have to provide care and staffing 24 hours a day, 365 days a year, and therefore a 250 per cent penalty rate for this number of hours inevitably increases their costs?

What we need to know is: what are the groups that are being considered in terms of the government funding? Do they include the aged-care sector and, if they do not, what is being done for them? In the disability sector, which particular groups are being looked at? Are the shelters being looked at? What are the other 24-hour care organisations or facilities that will have increased costs, and are they being considered? What we need to know is the precise nature of the deal the government is going to offer to members in this chamber to get them to support the bill, and that is something which obviously needs to be done.

In relation to that, I will address some comments a bit later in my contribution. The Hon. Mr Brokenshire has tabled amendments. He provided copies of those amendments late yesterday afternoon to the Liberal Party and I assume to some other members as well. We immediately last evening sent those amendments out to interested parties to seek their urgent comment. We will not be in a position to debate those amendments until the next sitting week, which will be next week, because, as I have said, the amendments were not received until yesterday afternoon.

Already, in the initial stages of feedback from some groups, they have raised significant concerns about the drafting of the Hon. Mr Brokenshire's amendments. I am not blaming it on the Hon. Mr Brokenshire because, obviously, the drafting instructions are given to parliamentary counsel, but one particular group has raised the complication that the amendments by the Hon. Mr Brokenshire appear to be predicated on the basis of 5 o'clock continuing to operate as opposed to 7 o'clock.

One group has raised potential unforeseen circumstances in relation to what will occur in terms of current trading regulations for certain stores on Christmas Eve and New Year's Eve; that is, that Mr Brokenshire's amendments will actually cut back on trading hours in certain circumstances for some existing stores if his amendments are approved. I suspect that is not what Mr Brokenshire's is intending, but it is proof of the point I am making; that is, we received the amendments yesterday. We sent them out last evening to some stakeholders, and we are awaiting their response. The normal course of events in this chamber is that we would certainly have at least the sitting week to be able to consult and then to form a view as a party, and other members to form a view, based on the consultation in relation to the amendments the Hon. Mr Brokenshire is proposing to move.

To that end, the government is playing a game at the moment. The game is, 'We're not going to proclaim holiday trading in the CBD over this coming Easter, just over 10 days away, until you lot in the parliament do what we tell you to do and pass the legislation within the time we stipulate.' It is for other members to respond to that sort of bluff and bluster by the Premier, the minister and the government. The reality is that it is not essential. The government says that it has the numbers in this chamber when it ultimately comes to a vote, whether it is this week or next week, to put its deal through the parliament. If that is the case, there is no plausible reason the government, on the basis that it has the numbers next week, cannot do what it has done for the three public holidays already, and that is to proclaim the additional shopping hours, if that is its intention, in the CBD over the coming Easter.

The traders were saying, two weeks ago and again last week, 'You have to give us a reasonable amount of time to organise shifts, workers, advertising, and all those sorts of things. We need to know when we are going to be open.' It is intolerable to leave it until late this week at the very earliest—or, in more likelihood, sometime next week—before they make a decision and say, 'Okay, the legislation has now passed.'

Clearly the reality will be that, if the legislation passes, it is unlikely to be proclaimed and receive royal assent, etc., so the government is probably going to have to proclaim trading in the CBD over Easter under the existing act anyway, rather than rely on the passage and royal assent of this bill. It is certainly my strong view that those who have influence over the government at the moment ought to be telling them they should get on with it. They have the numbers; put the retailers in the CBD out of their misery in terms of what is happening over the coming Easter period, and then this parliament can appropriately consider the amendments from the Hon. Mr Brokenshire next week, after there has been appropriate consultation.

These were the provisions in relation to the original bill, and they dominated the debate for quite a number of weeks. It has only been in the last week to 10 days that a whole new complication has arisen, as a result of legal advice from Minter Ellison that has been commissioned by some members of the Business Coalition, in relation to the implications of the legislation. I intend to put on the record significant amounts of that legal advice, and I will be seeking, through the committee stages of the debate, detailed responses from the minister to the issues that have been raised.

Contrary to what the Premier and the minister have been saying, it is not just those businesses that choose to open after five or seven on Christmas Eve and New Year's Eve that might have increased costs as a result of this bill; hundreds—and possibly thousands—of other businesses and organisations which do not actually open after five or seven on Christmas Eve and New Year's Eve might potentially have increased costs as a result of the deal that has been done between the shoppies union, Business SA and the government.

Just before I go through the advice from Minter Ellison, I will give just one example of this. I received a letter from the General Manager (SA and NT) of the Printing Industry Association of Australia, Peter Mansfield, who has raised this particular issue in the legislation. One of my colleagues, Mr Griffiths (member for Goyder), was contacted by his local newspapers as a result of the Printing Industry Association's concerns.

Mr Griffiths, who has asked me to raise this issue, says that he was contacted by the editors of two regional newspapers operating in his electorate who were concerned with this proposal—this bill that we are talking about—for two additional part-day public holidays. The editors were concerned that they would be required to provide time off in lieu for all their employees. Mr Griffiths says these concerns were directed to the two regional editors by Mr Mansfield. Mr Mansfield's letter to me states:

The bill adds two new part-day public holidays for South Australia, being 5pm to midnight on 24 and 31 December. We understand that these new public holidays are being introduced as a reward for retail and hospitality employees who may be required to work at such times in return for allowing additional opening hours for businesses in the Adelaide CBD. We also understand that the additional public holidays are not quarantined to employees in the Adelaide Central Business area, but will apply across the State.

A number of our member printing businesses have staff who work regular shifts covering the 5pm to midnight hours. If this Bill becomes law it appears that these staff will have the choice as to whether or not they work the critical production shifts on Christmas & New Year's Eve. If they do choose to work they will be entitled to public holiday penalty rates.

In addition, if this Bill becomes law it appears that all other staff, whether they usually work these hours or not, will be entitled to paid time off in lieu for these additional public holidays, consistent with every other public holiday.

South Australia is already the highest taxed State in Australia according to the Commonwealth Grants Commission, making it a difficult place to do business. The addition of two more public holidays will further increase the competitive challenge and financial burden on our members and all of South Australia, for no benefit to members and minimal to the state.

I ask the minister, in his response, to provide a detailed response to the concerns of the Printing Industries Association. In raising that issue, I use that as where this is already going; that is, these groups are raising issues that costs might increase for businesses (and this is a newspaper) and organisations like theirs where workers do not work from 5 o'clock (or 7 o'clock) to 12 o'clock on Christmas Eve or New Year's Eve.

If his concerns and the concerns that Minter Ellison has raised in its legal advice are correct, then we are talking about hundreds, if not thousands, of other businesses and/or organisations that might potentially see increased costs, depending on the enterprise bargaining arrangements and award provisions that apply to them and their workers. The letter from Minter Ellison is addressed to a member of the Business Coalition, Mr John Chapman, Executive Director, Motor Trade Association of South Australia. The executive summary states:

1.1If passed, the Bill has the potential to impact SA employees and employers, irrespective of their hours of operation on 24 December and 31 December. That potential will not be done away with by reducing the length of the part holiday.

1.2In many instances, the interplay between the part-day public holidays and provisions of modern awards and enterprise agreements will either provide an additional cost to employers, uncertainty for employers in how to correctly pay employees or create a direct conflict between the State law and particular industrial instruments.

1.3The Bill will potentially affect businesses which usually close between 5.00pm on 24 December and reopen the working day after 1 January and require employees to take annual leave for that period. Such businesses may be required to recredit annual leave taken by those employees over the shutdown period.

There are further details which I will put on the record in a moment, but what Minter Ellison is saying is that for all those businesses and organisations that close down on Christmas Eve and come back to work the day after New Year's Day and whose employees are required to take annual leave during that period, depending on enterprise bargaining arrangements and award provisions there is the potential for those employees to be given additional pay or additional annual leave, but those businesses with those employees to incur the additional costs.

We can all think of any number of organisations like that. Indeed, Parliament House closes down from Christmas Eve (generally at 3pm) and work recommences the day after New Year's Day. Whatever the enterprise bargaining arrangements are for this chamber and the staff who work for members, the staff of Parliament House are required to take annual leave during that particular period. So, a question that will go to you and/or the Clerk will be: what are the implications in relation to the award provisions and enterprise bargaining arrangements for staff in Parliament House, should this particular bill pass, in light of the evidence provided from Minter Ellison? The Minter Ellison advice states:

2.4The NES provide that:

(a)employees are entitled to be absent from work on a public holiday;

(b)if an employee is absent from work, they are to be paid their base rate of pay for their ordinary hours of work on the public holiday;

(c)employees may reasonably refuse to work on a public holiday; and

(d)employees are not required to take annual leave while on a public holiday.

Under section 4 of this advice—'Which employees will be entitled to the benefit of part-day public holidays?—it states in part:

4.2It would seem to be the case that employees who do not normally work their ordinary hours of work between 5.00pm and midnight, will not receive the benefit of the part-day public holidays. However, due to the novelty of a part-day public holiday and its timing, we are unable to be certain about this position.

4.3This uncertainty is exacerbated in the context of the NES provisions concerning taking annual leave in a period during public holidays:

89 Employee not taken to be on paid leave at certain times

Public holidays

(1) If the period during which an employee takes paid annual leave includes a day or part day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid annual leave on that public holiday.

4.4.If an employee took annual leave between 24 December and 31 December inclusive, then that period would include the following days or part days of public holidays in 2012:

(a)24 December

(b)25 December

(c)26 December

(d)31 December

It follows that, applying s 89, that the employee is taken not to be on paid annual leave for those days and would receive the benefit of the public holiday.

4.5The Explanatory Memorandum to the Fair Work Bill 2008 states:

Clause 89—Employee not taken to be on paid annual leave at certain times

Under clause 89, an employee will not be taken to be on paid annual leave:

during a day or part day that is a public holiday which falls during the period of their absence from work on annual leave

...The effect of this clause is that, if a public holiday falls during a period when an employee is absent from work...then the employee's annual leave accrual will not be reduced by that day or period.

4.6.Accordingly, it is possible that claims for additional payment or recrediting of annual leave may be made by any employee who has been required to take annual leave over the Christmas shutdown period, regardless of when the employee usually works ordinary hours.

That is the critical part of the advice. What it is saying is that, regardless of whether you normally work after 5pm or after 7pm on Christmas Eve and New Year's Eve, if you have taken leave between 24 December and 31 December inclusive, under these particular provisions and the National Employment Standards, it is entirely possible that as a worker you would be entitled to an additional payment or a re-crediting of the annual leave you took during the Christmas shutdown period. So, you will get the benefit of the break and then an additional break with the additional costs clearly being borne by small businesses and small organisations that might be structured in this particular way.

The Premier and the minister claim that this relates only to those businesses or workers who work on Christmas Eve or New Year's Eve, but the advice from Minter Ellison makes it quite clear that that is probably not correct. Certainly, the government and the minister need to respond to the specific legal advice that Minter Ellison has given the business coalition and which I have put on the record on its behalf during this debate. Section 6 of the Minter Ellison advice states:

Implications of part-day public holidays under modern awards.

...Modern awards and enterprise agreements which we have reviewed and which raise issues of conflicts and additional costs for employers are:

(a)Manufacturing and Associated Industries and Occupations Award 2010

(b)Hospitality Industry (General) Award 2010

(c)Registered and Licensed Clubs Award 2010

(d)Clerks—Private Sector Award 2010

(e)Vehicle Manufacturing, Repair, Services and Retail Award 2010

(f)Coca-Cola Amatil (Aust) Pty Ltd South Australian Manufacturing Employees Enterprise Agreement 2010-13

(g)Premium Wine Brands Pty Ltd Production (Barossa Valley) Enterprise Agreement 2010.

Section 6.2: employees on rostered days off. An example of provisions is the clause taken from the Manufacturing Associated Industries and Occupations Award 2010.

That is clause 44.3 (I will not read all that), but Minter Ellison then advise, on the basis of that particular award provision:

Accordingly, an employee who usually works past 5 pm and who has a rostered day off on 24 December or 31 December would receive an extra day of pay, day off or day of annual leave at the employer's discretion. This would be the case if any of the employee's ordinary hours of work were normally worked between 5 pm and 12 o'clock midnight. In some industries, such as licensed clubs and hospitality, the obligation for employers to pay an extra day's pay or a day of annual leave in respect of an RDO, rostered on a part-day public holiday, may be incurred regardless of whether an employee usually works any of the hours between 5 pm and 12 o'clock midnight. This entitlement was set out in modern awards such as the Hospitality Industry General Award 2010.

Then there is a reference to 37.1 national employment standards and a reference to the particular award provision. Minter then concludes:

With the definition of an RDO as being a 24-hour period, there is a risk that full-time employees who have an RDO rostered on 24 December or 31 December, and who do not normally work after 5 pm, will receive both the RDO as a paid day off in addition to an extra day's pay, alternative day off or day of annual leave. The same issue is raised under the Registered and Licensed Club Award 2010.

Again, I ask the minister in his response to give us an answer to that. What Minter is saying here is that, in some award provisions and enterprise agreements, workers who have rostered days off on 24 December or 31 December—so you are working your arrangements; you have got an RDO so you are not actually working on those particular days and you actually have that day off—because of this bill, your employer will have to pay you another day annual leave in lieu thereof. How good is that? Where can we get an award or enterprise agreement that does that for us?

You have the day off, but because of this bill that will be passed, Minter Ellison is saying that you will have the day off and then you will get another day off later on. How will members in this chamber—the minister in particular—defend on Leon Byner or on Bevan and Abraham why that ought to be the case in South Australia, why employers in small businesses should have to support that sort of provision in the bill? How do you justify that? When we have a cost base in South Australia already leading the nation, how do you justify those sorts of arrangements, and not just that one but the others that Minter Ellison has highlighted?

The minister must come back with detailed responses. He has access to this sort of advice. He has to come back to the detailed provisions and responses to the issues that Minter Ellison has raised. I am the first to acknowledge that at this stage Minter is saying, 'Hey, there are hundreds of awards and enterprise agreements; we haven't been able to go through all of them—we've only gone through less than a dozen of these particular awards and raised the issues that you as legislators need to be aware of before you vote on it.'

At least with these dozen or so the minister needs to stand up and say, 'Okay; yes this is a possibility, but we support it.' What we are saying is, 'If that is eventually what happens, so be it, it's a bonus for the workers; too bad it is a cost for the employer, for the industry organisation, the NGO or whatever else it is—stuff them, too bad; Peter Malinauskas is happy, so we're happy; you're just going to have to lump it.' That is fine for someone like the Hon. Mr Wortley who does what Peter Malinauskas wants him to do, but it is for each of us as members in this chamber to address seriously the legal advice Minter Ellison has raised and to demand answers from the minister and the government and, if need be, put in protections.

Otherwise, let me just say (as, I am sure, will others in the Business Coalition) to those who are going to support this, the government in particular, that it is beyond me how you justify the next judgement which comes down in the tribunal or whatever it is which says, 'Oh, sorry, parliament passed this bill and there was an RDO. Your enterprise agreement says this, and you not only give you them the RDO, the day off, but you also have to give them another day off at your cost sometime later on, or pay them cash in lieu of that.' The next issue which Minter's raises is 6.3, employees on annualised salary arrangements. They state:

(a)In many workplaces, employees work 'annualised salary arrangements', where a higher annual salary is paid to an employee instead of paying penalty rates, overtime or other award-based entitlements.

(b)Under the Hospitality Industry (General) Award 2010, such employees who work any hours of the part-day public holiday will be entitled to a day off in lieu or a day added to their annual leave entitlement.

I interpose to say that that means for any hours of the part-day public holiday they will be entitled to a day off. The annualised salary arrangement provision in that award states:

An employee being paid according to this clause will be entitled to a minimum of eight days off per four-week cycle. If such an employee is required to work on a public holiday, they are entitled to a day off in lieu or a day added to their annual leave entitlement.

Minter's states:

(c)In this situation, an eligible employee who was rostered until, say, 6.00pm—

and this is when it was going to be 5 o'clock, so one hour into the part-day public holiday—

on a part-day public holiday, would receive the entitlement to a whole day off in lieu or a full day of annual leave, (usually 7.6 hours). It is not necessary for an employee to work the entire public holiday or (part-day public holiday) to accrue this entitlement.

Well, how great is that? That's terrific! You just happen to work one extra hour beyond what was the 5 o'clock start of the holiday but, under the new arrangements we are told is 7 o'clock, so you work one hour extra to 8 o'clock and then you are going to get the entitlement to a whole day off in lieu or a full day of annual leave (7.6 hours) for having to work one hour under that hospitality award arrangement. That's terrific! No wonder Peter Malinauskas is jumping up and down with glee. Stuff the small business employers in the hospitality industry; they can pay the additional full day cost on the basis of having the additional hour worked during this part-time public holiday.

Of course, there are a number of businesses we can all think of on Christmas Eve and New Year's Eve that do not trade through until midnight; they trade through until 8 o'clock or 9 o'clock and they do just go into that particular hour. A number of prominent groups lobbying for the government deal are groups that trade until 8 o'clock or 9 o'clock. I am reminded that the IGAs and some others trade until 8 o'clock or 9 o'clock.

Depending on the award arrangements and the enterprise agreement arrangements, Minter's is saying that in some industries there are potential additional costs for those sort of annualised salary arrangements in those particular industries. At 6.4, Minter's raises the issue of employees rostered on shifts commencing late at night. I will not quote it all, but part of it states:

Other provisions will mean that employees who start shifts outside the part-day public holiday will receive penalties for all the time worked if the shift continues into the part-day public holiday.

(b)As an example of such a provision, the following clause is taken from the Clerks—Private Sector Award 2010:

28.4 Hours, shift allowances, special rates, meal interval

(e) Where ordinary shift hours commence between 11.00 pm and midnight on a Sunday or public holiday, the ordinary time so worked before midnight does not entitle the shiftworker to the Sunday or public holiday rate. Provided that the ordinary time worked by a shiftworker on a shift commencing before midnight on the day preceding a Sunday or public holiday and extending into a Sunday or public holiday is regarded as ordinary time worked on such Sunday or public holiday.

There is a similar provision, though applying at a different time of day, in the Vehicle Manufacturing, Repair, Services and Retail Award 2010. I will not read out all of that particular award provision, but Minter's conclusion is:

As stated above, employees who work on public holidays usually receive penalty rates for doing so. However, the particular timing of the part-day public holidays will lead to some employees in some industries not receiving penalties for those hours, depending on the start time of their shift.

Their conclusion earlier was that employees who start shifts outside the part-day public holiday will receive penalties for all the time worked if the shift continues into the part-day public holiday. So, how good is that going to be? You start your shift, under those particular awards, outside the public holiday but it continues into the public holiday so you will get paid at the public holiday rate for all of the hours that you work—a 250 per cent penalty rate. That is terrific, but not if you are a small business or a non-government organisation trying to provide a list of services.

Minter's go on to say that there are 122 modern awards but they just have not had the time, obviously, to review all of the modern awards in relation to their particular provisions. They then move on to the next heading, Implication of the Part-day Public Holiday under Enterprise Agreements, and they state in 7.3:

An example of where the part-day public holidays will come into conflict with an enterprise agreement is the following clause, taken from the Coca-Cola Amatil (Aust.) Pty Ltd South Australian Manufacturing Employees Enterprise Agreement 2010-2013.

I will not read all of that clause onto the record but Minter's conclusion under 7.4 is as follows:

For Coca-Cola Amatil (Aust.) Pty Ltd, the part-day public holidays will conflict with its enterprise agreement in the following ways:

(a)The part-day public holiday, while only seven hours in duration—

that was the original proposal—

will be treated as 12 hours of ordinary time;

(b)The part-day public holiday, while commencing at 5.00pm, will be treated as commencing at 6.00am on the day and finishing at 6.00am the following day; and

(c)The enterprise agreement has already made provision for employees to take the evening of 24 December as annual leave.

I interpose there that the clause which I did not read said that all shift workers on night shift for the night prior to Christmas Day will be required to take an annual leave day. I continue with Minter's advice:

(c)The enterprise agreement has already made provision for employees to take the evening of 24 December as annual leave. This will come into conflict with the [National Employment Standards] requirement that employees are not required to take annual leave on a public holiday.

Then section 7.5 says:

A further example of a South Australian workplace enterprise agreement which will come into conflict with the part-day public holidays is taken from the Premium Wine Brands Pty Ltd Production (Barossa Valley) Enterprise Agreement 2010.

Again, I will not read all of the provisions of that clause. I quote Minter's advice:

For Premium Wine Brands Pty Ltd, the part-day public holidays will conflict with its enterprise agreement in the following ways:

(a)The part-day public holiday, while commencing at 5.00pm, will be treated as commencing at 12.00am on the day and finishing 24 hours later;

(b)The enterprise agreement has already made provision for employees to take the evening of 24 December as annual leave. This will come into conflict with the [National Employment Standard] requirement that employees are not required to take annual leave on a public holiday.

The examples above are not exhaustive.

They have not gone through all of the enterprise agreements, the hundreds that obviously apply in South Australian workplaces. The next section of Minter's advice, section 8, asks: How might the part-day public holiday affect rostering? I quote:

Under the [National Employment Standards], employees have an ability to refuse to work on public holidays if the request to work is not reasonable or if their refusal is reasonable.

In deciding whether a request or refusal is reasonable, the following matters are to be taken into account (s.114(4) of the [Fair Work] Act)—

and I will not read all 10 or so provisions of that section. Minter's then go on to say:

This raises the question of whether an employee could reasonably refuse to work that part of their shift past 5.00pm on the day. If an employee is entitled to receive penalty rates for the work, has been given notice of the shift in advance and then refuses to work past 5.00pm on the day, these are all matters which would go towards the employee being unreasonable by refusing to work part way through a shift.

What Minter's is doing there is raising the issue of the interplay between this bill and that requirement of the Fair Work Act and the National Employment Standards. Finally, Minter Ellison's advice under point 10, under the heading 'Legal exposure for employers', states:

The additional costs provide great pressure on employers to require their usual workforce to work on the public holiday. There is a risk of employers falling foul of the NES—if an employer 'unreasonably' requires an employee to work on a public holiday, this will contravene the NES with potential penalties of $33,000 per breach and the risk of legal action by the affected employee.

Further on, in 10.3 and following, it states:

In Pietraszek v Transpacific...Fair Work Australia found that the applicant had been unfairly dismissed when his employer terminated his employment after he failed to attend work on Christmas day and Boxing day. The decision considered the NES public holiday provisions.

Fair Work Australia found that there was no valid reason for the termination based on the evidence given at the hearing. It did note that, based on the limited information given by the applicant to the respondent at the time he refused to work, the respondent was entitled to dismiss the applicant. It was only at the hearing that the applicant went into detail as to why he refused the request to work, including evidence of his wife's medical condition and that he had understood that he no longer needed to work any public holidays due to roster changes.

This decision illustrates the scope for employers in managing roster arrangements around public holidays. At the time of terminating the employment, the employer did not know the employee's personal circumstances and yet the decision to terminate was still found to be unfair.

That is lengthy legal advice from Minter Ellison, and I have put not all but the bulk of it on the public record. It is imperative, in the interests of good legislation, for the minister to respond to the detailed questions Minter Ellison has raised in relation to this because we do not want to be in a position months or years down the track where a decision is taken by an industrial court, tribunal or jurisdiction and members of parliament say, 'We weren't warned about that particular implication of the legislation.'

I know Mr Malinauskas's views about these issues—too bad, they are not his concern. He is concerned about the shoppies union. He has made that known to journalists who have put some of these issues to him. He is there to represent the shoppies union and his members; that is fair enough, that is his responsibility, but it is not an excuse that the Premier or the minister in this chamber can use. Mr Malinauskas can say, 'Stuff the rest of the world, the employers, the NGOs and anybody else.' That is his entitlement. That is the arrogance we have become used to from the shoppies union and those who control this government. The minister, for all his feeble inadequacies, needs to take legal advice and stand up in this chamber and read that advice to the chamber in relation to the issues that Minter's and the Business Coalition have raised.

This chamber needs to vote on the bill and its amendments with the full knowledge of what it is voting for. I am the first to acknowledge, and I think Minter's would as well, that with some of the issues they have raised there will be valid and quite possibly other legal interpretations of the legislation. Ultimately, it will be determined by tribunals, courts or others. Given that the issues have been raised, we need to hear the legal advice and the position from the government and the minister in relation to each and every one of those concerns Minter Ellison has raised in relation to the interplay between the awards, the modern awards, the enterprise agreements, the Fair Work Act, the National Employment Standards and this bill and its implications not only for workers but also for businesses and non-government organisations in South Australia.

Coming back to the second reading, we seek from the minister a breakdown of the cost that has been estimated in the budget of $5 million for this deal in terms of public sector costs. I note that this was prior to the recent potential extension of costs to cover some other non-government organisations. Will the minister be able to bring back to the chamber and have tabled a breakdown of the $5 million costs: as to how it has been calculated, and what are the individual costs for each of the departments? My understanding is that each department and Treasury have been asked to put together this $5 million cost which went into the forward estimates, so there is clearly a breakdown that Treasury has in terms of the costs for each of the agencies, and we seek information on that.

We seek also information on the proposed deal with non-government organisations. As I said earlier, for those members who do have the power in relation to this issue, it is my strong view that we should get the precise details of the deal that is going to be offered to the non-government organisations before the bill is passed. What we are seeking from the government is: what is the nature of that proposed additional cost, and what is the cost to the state budget from the proposed extension of the deal and, as I highlighted earlier, which particular groups are being covered by the government's further negotiated offer in relation to them?

In relation to four particular groups of workers in the public sector, namely, police, nurses, fire officers and medical officers (doctors) within the public sector, I ask a series of questions. First, what are the proposed additional costs for each of those groups, that is, police, nurses, fire officers and doctors? Obviously, they will all be a component part of the $5 million estimated cost. In particular, for any one of those categories of workers, if they are rostered on a shift on Christmas Eve or New Year's Eve from 2pm on that day to 10pm (that is, they will be working from 2 o'clock until 7 o'clock), the 7 o'clock to 10 o'clock part of the shift will be in the part-time public holiday component.

For each of those four categories of workers, under the current either enterprise agreement or award arrangements for police, nurses, fire officers and doctors or medical officers, what will be the payment arrangements for those officers during that particular shift? That is, are they paid at ordinary rates from 2 o'clock until 7 o'clock and then paid from 7 until 10 o'clock at the 250 per cent penalty rate, or is there some different arrangement under the current agreements with those four groups of public sector employees?

With that, I indicate the Liberal Party's support for the second reading of the bill. Our position remains the same as we indicated at the outset. We will be trenchantly opposing, and moving amendments to remove, the provisions in relation to part-time public holidays. In relation to the amendments of the Hon. Mr Brokenshire, which I have not been able to address, our position is that we will not be ready to debate those until next week, after we have had the opportunity to receive advice from the stakeholders we consulted last evening in relation to the impact of those amendments.


You can write to Rob at his
GPO Box 2264

His office contact
number is:

Telephone: +61 8 8226 1866

Alternatively, you can email Rob with any issues or feedback.

Rob Lucas on
© Rob Lucas 2016 | Authorised by Rob Lucas, Parliament House, Adelaide SA 5000