The Hon. R.I. LUCAS ( 11:49 :22 ): After many days of waiting, I am pleased to be able to speak to the second reading of the Employment Tribunal bill. Over the last few weeks we have seen some three or four pages of amendments to the government’s own bill moved by the government in the House of Assembly, and up until yesterday we had had three further separate sets of amendments to the government’s legislation. Yesterday the minister, through his office, had wanted to know whether the opposition was prepared to speak and get the bill through today. When I arrived in the chamber yesterday afternoon, unbeknownst to me and obviously the minister’s own office, there was a fourth set of amendments being moved by the minister to his own bill.
One can either be cruel or kind. One could either suspect that the minister and his office do not know what they are doing, or one could be kind and say that the minister’s office is listening to the criticisms of the government’s legislation after finally consulting properly and is responding and moving amendments on an ongoing basis. I will leave the judgement call to other members, given their dealings with minister Rau, and let them make their own judgements. I have to say it has been a little bit of a dog’s breakfast in trying to keep up with all the amendments that the government has been moving. As each new set of amendments is circulated in this particular area, we then circulate those amendments to interested stakeholders to get their response.
I have to say in relation to the most recent set that we only sent the request for consultation out to stakeholders yesterday afternoon. I think, without having had a chance to have a good look at the fourth set of amendments, that one or two of the issues that I will place on the record today as being of concern to a number of the industry stakeholder groups may well be at least partially addressed, perhaps fully, I do not know yet, by one of the amendments that the government has now circulated. If that is the case, as I said, it may well be that albeit belatedly the minister has recognised the deficiency in the legislation and has responded with a further amendment in this particular area. However, until we receive the response from stakeholders, we will not really be in a position to make a final judgement on that.
As I outlined to the minister and his office yesterday, the opposition is prepared, albeit not in relation to the fourth set of amendments, to place on the record some views but in particular questions to the minister and the government. We seek the minister’s response, the government’s response, to the questions that we are putting, in many cases on behalf of a number of stakeholders who have expressed some concerns about the government’s legislation.
On the issue of the amendments, if I could put a general question to the government, whether or not the government can indicate in relation to the now four sets of amendments in the Legislative Council for each of those: who has been consulted from the government viewpoint in relation to the four sets of amendments? Is the government prepared to indicate who is requesting the particular amendment? That is assuming it was as a result of a response to a submission from a stakeholder group. Have there been issues that the government’s own advisers have realised there are some deficiencies in the drafting of the legislation which has prompted some of the amendments that the Legislative Council is now being asked to consider?
In particular, in relation to the four sets of amendments in the Legislative Council, are representatives on behalf of unions supporting any of these amendments or opposing them? Similarly, are industry associations or employer groups supporting, or have they indicated opposition to, any of the proposed amendments that the government has received? In addressing this bill and the companion bill, which is the amendment to the SACAT bill as opposed to the SAET bill (the South Australian Employment Tribunal bill), the minister in the House of Assembly referred to something, and not being a lawyer I had no knowledge of this at all, but he referred to the implications of the Cable case which created enormous amounts of problems for courts.
He was responding to questions that had been asked in the House of Assembly on the role of the SACAT. The government was saying that it was an administrative review body and the role of the Employment Tribunal, which the government says is a court, and he said that the Cable case had tremendous implications for the way the government not only treated the establishment of these two bodies but therefore responded to amendments and suggested amendments.
Would the minister be able to provide a copy of the Cable case decision or, given that I am not a lawyer, perhaps a more detailed explanation as to the implications, as the government sees them, in terms of how they, and we as a parliament, should respond to the structure and the operations of SACAT and the Employment Tribunal, not only on this occasion but I am sure as a parliament we will on many occasions in the future be confronted with proposed changes or suggested changes to the ambit of the SACAT and the South Australian Employment Tribunal. If the government believes that the Cable case is a critical issue in relation to all of this, I will be interested in what I have requested.
One of the key complaints which has come from not just employer associations but, I understand, from some unions and employee associations has been in the area of appointments to the Employment Tribunal, whether they be deputy presidents, commissioners or others. There has been a criticism that in the past that had been done on the basis of practical experience in the field, that being at least an important issue, that is, practitioners in the industrial relations arena both from the employee viewpoint and the employer viewpoint.
Those who support this view of the world see great merit in those who have practical experience. Some of them come from a background of being opposed to this jurisdiction becoming too legalistic. They are critical of the Attorney, given his legal background, wanting to have the lawyers, as they say, take over the world again rather than, as some of the stakeholders would characterise it—and I do not necessarily fully subscribe to their view—real people in the field who actually know what is going on, real people who represent unions and workers, and real people who represent employers and business groups.
Those who subscribe to this view have also, I am sure, put their view to the minister and to the government (and certainly have to the opposition) that in terms of who is appointed to these key positions, in the past the arrangement has been that, again as they would put it, real people representing workers and businesses were consulted. Also, real people from the parliament, from the House of Assembly and the Legislative Council, are required to be consulted by the minister and the government prior to key appointments. Again, that is disappearing, it would appear, in relation to the legislation before us.
There is another key element in relation to this, and I guess it gets caught up a little bit in terms of the politics and the personalities of some of the colourful characters who have inhabited the jurisdiction over the years. When this bill has been raised, the opposition and I am sure crossbenchers and others have received a lot of comment and criticism about the government’s actions and what some stakeholders see as a position from the minister and the government of protecting two existing inhabitants of the jurisdiction, if I can put it that way: Deputy President Bartel and Industrial Relations Commissioner Paul McMahon.
The appointment of Mr McMahon, as I said, has had a long history and has attracted a lot of media attention over the years. I have had forwarded to my office, and I certainly remember the articles at the time, such as the article from The Advertiserof 8 July 2008, with the headline ‘Police Inquiry on Job Row’, which stated:
The police anti-corruption branch has launched a preliminary inquiry into the appointment of Industrial Relations Commissioner Paul McMahon. Mr McMahon was appointed by Minister for Industrial Relations Michael Wright in March and, because of his new job, could not vote two weeks later in a crucial ALP forum against Mr Wright’s Workcover Bill.
I note the article is written by someone with very close connections with the Australian Labor Party, Mr Miles Kemp. Mr Kemp goes on to say:
The Advertiser understands no connection has been made by the anti-corruption branch between the appointment and Mr McMahon’s ineligibility to vote in the April 11 ballot. The unit also is investigating why an additional commissioner was appointed to the Industrial Relations Commission despite the average workload of commissioners and registrars being halved following changes to Federal Government industrial laws. Ms [ Isobel ] Redmond is seeking access through Freedom of Information legislation to a letter between the president of the IRC, Peter Hannon, and the State Government which reportedly states there was no need for Mr McMahon’s appointment because of the decreased workload.
According to that story, and other related stories, supposedly the President of the Industrial Relations Commission, Peter Hannon, had actually written and said, ‘Look, we don’t need another commissioner. We don’t need Commissioner Paul McMahon, or indeed anybody else, because we already have a significantly decreased workload.’
The reason for making this particular point at this stage is that one of the explanations that minister Rau is giving for some of these changes is that, because of the changes in the industrial relations environment and most of the work being sent to the federal jurisdiction, we do not have the need for some of these people who are down in the Employment Tribunal anymore. The article from 2008 indicates that was certainly the case, supposedly, according to the President of the Industrial Relations Commission, Peter Hannon, at the time that this government, admittedly not this minister, but one of his former colleagues, appointed Commissioner Paul McMahon in the first place to the jurisdiction.
The second article, in and around that time, was published in TheAustralian, written by John Wiseman, dated 11 July 2008, which stated:
The South Australian Government is standing behind a controversial appointment to its Industrial Relations Commission despite a District Court judge severely criticising his veracity during a 1998 defamation and sexual harassment trial. Commissioner Paul McMahon was described as unconvincing, vague and failing to be frank when he appeared as a witness in the bitter case between two union leaders. Industrial Relations Minister Michael Wright denied that the scathing criticism affected Mr McMahon’s long-term IRC appointment, saying the court matter was closed 10 years ago. However, anti-corruption squad investigators are inquiring into circumstances surrounding the former union official’s appointment in March. Several people were interviewed by police this week. The state Opposition claims there was a lack of due process and transparency in Mr McMahon’s appointment to the $200,000-plus position. It was made by Industrial Relations Minister Michael Wright at a time when the tribunal’s workload had been halved after changes to federal industrial laws.
Further on in the article from Mr Wiseman:
In the 1998 court case, then Australian Manufacturing Workers Union secretary Paul Noack initiated defamation proceedings against another AMWU official, Caroline ‘Max’ Adlam, who counterclaimed for damages for indecent assault. The case concerned an allegation that Mr Noack had indecently assault Ms Adlam, his former lover, by groping her in a hall of the union’s Adelaide offices after years of bad blood. Judge John Sulan found in favour of Ms Adlam and awarded her $5000 damages. The judge found Mr McMahon’s evidence was coloured by his close relationship to Mr Noack. ‘I did not find Mr McMahon to be a convincing witness,’ the judge said in his summing up. ‘I consider he was not frank.’ Mr McMahon’s evidence was vague, he told the court at the time. Mr McMahon did not return telephone calls [to the Australian reporter] .
So, the appointment of Commissioner Paul McMahon was clouded in controversy: one of those inevitable, ongoing controversial appointments by this state Labor government into this particular jurisdiction.
Evidently, it was opposed by the president of the commission at the time and so there are some very strong views from those who practise in the field in particular about Commissioner Paul McMahon. They have certainly asked questions as to why the government appears to have gone to great lengths to continue to protect Commissioner McMahon and Deputy President Bartel in this complicated arrangement that is outlined in the bill that we have before us.
I am advised and I would ask the minister to confirm whether Deputy President Bartel is currently paid around $323,000 a year for that deputy president’s position whereas Commissioner Paul McMahon is currently paid around about $281,000 a year for his position. If it is correct, these are considerable sums of money to be paid to people for whom the minister is saying—or certainly the president of the commission said eight years ago that they did not need him because there was not enough work to justify his existence. So, the interesting question is: what on earth have they been doing for the last eight years? However, put that aside for the moment. I seek confirmation from the minister and the government as to whether or not that is the case.
What has also been claimed by the stakeholders is that, under this arrangement that the minister is sanctioning and would like us to approve, in essence Deputy President Bartel and Commissioner McMahon for a period of time—and I ask the question for how long?—will be undertaking the work of what essentially are conciliation officers for the remainder of their period being members of the Employment Tribunal.
Again, I ask the minister to confirm whether conciliation officers are currently paid around about $112,000 a year, and if they are not, how much are they paid? It is evidently significantly less than the approximately $323,000 and $280,000 that Bartel and McMahon are currently being paid. If they are going to be substantially undertaking the same level of work as conciliation officers it does beg the question as to why.
The question that stakeholders are asking me to put to minister Rau—and to get a response on the public record—is: what is the legal position? Does the government and the parliament ultimately have the power to terminate the positions of Deputy President Bartel and Commissioner McMahon? I do not know the answer but nevertheless I ask the question. If the government and/or the parliament has the power, what would be the cost to taxpayers of a termination provision? I am the first to reserve my position on that to ask: (a) we need to know whether or not it is legally and constitutionally possible; and (b) what would the cost be?
If the cost is outrageously large, given the employment arrangements, then it might not be something that can even be contemplated and I would be prepared to potentially accept that argument. However, we need to get a response from the minister and the government in relation to the legal position and what the potential cost might be.
I am reminded—and I could not find it this morning as I prepared to speak to this—that in the not too distant past the government had a battle with a fellow I think named Jeremy Moore who was a former Labor Party candidate and who I think held a statutory position and the government sought to terminate that position. It was certainly discussed in this chamber at the time. I think legal advice was taken by Mr Moore—if I have the name correct; if not I will stand corrected and correct the record—and I think there were threats of legal action because in that position he could not be terminated.
I think the government’s argument was—certainly, I remember minister Rau saying to me—that this particular position does not have any more work to do, and that is the end of it. Some are saying that there is a similar argument here: if there is no further work to be done, maybe there was not any work in the first place, if you accept president Hannon’s position in 2008. However, if there is no work, can the government explain why they took an action in relation to the previous example that I indicated and why they cannot or will not take that action here?
There are some claiming that it is because of the close relationship between Mr McMahon and some in the government. I do not know, but I think there are significant questions being raised by stakeholders, and it is appropriate that minister Rau puts on the public record his involvement and his officers’ involvement in these particular issues and justifies publicly why we continue to pay someone $323,000 for however many years and someone else $280,000 a year, when perhaps they are not being productively employed and, under these arrangements, might be doing very similar work to conciliation officers who are paid significantly less than those two particular persons.
In relation to this issue of the conciliation officers, my understanding is that, for some reason, the government has in this bill decided to retitle conciliation officers as ‘commissioners’. So, they are all going to be promoted. There is a provision in the bill which says they are going to be promoted to the position of commissioner, which is clearly a more substantive title and infers much greater status. As I read the bill, it appears that the intention is that they will not be paid any more than they are currently being paid. So, if they are being paid $112,000, or whatever it is, as conciliation officers, they are now going to be called commissioners but will still be paid $112,000—bearing in mind that Commissioner McMahon, I think, is being paid approximately $280,000 at the moment.
My questions to the minister and the government are: how many conciliation officers are there at the moment? Can the minister indicate the names of the conciliation officers, for how long they have been appointed, and—I am not sure whether or not this is relevant under the current appointment arrangements—whether they have come from a union, business, employer or organisation background, or some other background? I also ask them to confirm, again, their salary levels and confirm the claim that some are making that, in essence, we may well have commissioners at two quite separate salary levels; that is, we will have at least 10 or so former conciliation officers who will be commissioners paid at one salary level, which is $112,000, but we will have Commissioner Paul McMahon being paid $280,000.
If that is what minister Rau is wanting us to support here, I seek his explanation. Firstly, to confirm if that is what he wants us to support, and can he justify why he wants us to have—if that is the case—10 or so conciliation officers doing their work at $112,000 and Paul McMahon, as the commissioner, being paid almost three times that amount and doing, in essence, the same work with the same title? There might be a simple response or answer to that from minister Rau, and I look forward to it if there is.
Certainly, minister Rau says—and in public discussions and in the House of Assembly debate he repeats it on any number of occasions—that he is not going to be appointing any more commissioners, but in the bill he seems to be asking us to appoint at least another 10 commissioners. On the one hand he says there is no work for the commissioners to do down there, but on the other hand he seems to be wanting us to appoint at least another 10 commissioners. I ask him to explain how he reconciles those two conflicting statements in what we are being asked to support in the legislation.
I would also ask him to explain—and on page 6897 of the Hansard the minister explained the current arrangements, as I understand it; that is, the present conciliation officers or soon-to-be commissioners. He says:
The process of appointing those people is we put an ad in the paper, people express interest, we have a selection panel, and all comers can come forward. We ask the selection panel to recommend the best people and ultimately that comes to the minister of the day to make appointments.
I ask the minister to outline: when was the last selection panel established; who were the members of that selection panel; and, for the last selection panel, who the selection panel recommended to the minister (whether it was this minister or the minister before him); and whether or not all of the selection panel recommendations were accepted by the minister? I assume the minister has the power to accept or reject the selection panel recommendations but again I ask for confirmation as to the legal position. In particular, I ask whether minister Rau at any stage has rejected or amended selection panel recommendations for conciliation officers and, if he did, on what grounds did he reject or amend recommendations of any selection panel?
Similarly, if there has not been a selection panel under the current Minister for Industrial Relations—and there have been some pretty quick changes in industrial relations ministers, so rather than say the last minister for industrial relations, perhaps if we go back over a period of five years—whether or not previous ministers during that particular period have either rejected or not accepted or amended recommendations of the selection panel in relation to conciliation officers.
Certainly, the minister, in his statements in the house, seems to indicate that at least the government’s position is—and I am not sure whether it is the legal position or whether it is their policy position or a position of policy convenience—that he is not going to be appointing any more commissioners, although, as I said, he is appointing at least 10 new commissioners. He says:
It just means that the two existing commissioners—I am not sure how much longer they want to stay there—have been sort of red-circled. When they finish, that will be the end of it.
My question is: is that, in essence, the legal position, and the government and the parliament has no capacity to make a different decision, or is it just a policy position of convenience that the minister has adopted; that is, he is saying that they can stay there even if they are not doing much work down in this particular jurisdiction?
I am also advised that some time in around 2013 or 2014, and one of the industrial advocates has made this claim to me, Judge Bleby conducted the Bleby review (unsurprisingly) and that that Bleby review of industrial relations supposedly came to the conclusion and the recommendation to the government was that there was no need to expand or increase the number of members in the tribunals that are down there. I ask the minister whether or not he is prepared to provide a copy of the Bleby review report. If he is not, can he give us an explanation as to why he is not prepared to?
If he is not prepared to provide a copy of the Bleby review report, can he at least respond to and outline any particular recommendation that Judge Bleby made in relation to any issue which might appertain to this bill? That is, in particular, the position of whether or not we should continue to pay for people down there who, evidently, are not doing much work at all, or whether we should continue to have a position where one commissioner is going to be potentially paid almost three times the amount of money as all of the other commissioners are going to be paid under the government’s arrangements.
I am also advised by another one of the industry associations that some of these people down on the jurisdiction hold duel appointments, both the Industrial Relations Court and Commission and also with the Fair Work Commission. I am advised that this relates, potentially, to Deputy President Bartel, Commissioner McMahon and Judge Hannon. I seek confirmation from the minister in relation to that particular claim.
That claimant also indicates to me that they thought that there was a federal-state funding agreement where part of the salary is paid for by the Fair Work Commission—I assume on some sort of pro rata basis—that if any of those persons are undertaking work in the Fair Work Commission jurisdiction, the Fair Work Commission pays for part of the salary. If that is the case, can the minister indicate what were the details for each of these in the last three years? That is, how much of the total salary, if any, was paid for by the federal jurisdiction?
So, I guess, in part, if the commonwealth government is paying for part of the 323,000—or 280,000 at least—that reduces some of the cost to the South Australian tax payers directly. Can the minister also confirm, if there is this federal-state funding agreement, what the expiry date is? There was some thought that maybe that expiry date had either just occurred or is just about to occur. Has that or will that federal-state funding agreement be renewed, or is there some issue in relation to the potential renewal of that particular agreement?
Many stakeholders have been putting the point of view, as I have said, that they believe that they wanted people with practical experience in the field, and in particular, referring to the field that relates to the private sector, in addition to the public sector and also the need for the employer and employee associations to be consulted about potential appointments. The minister’s position is quite clear that there is, in his view, no further work, and therefore he is not going to appoint anyone. But more particularly, he has also argued that there is no longer any need for tribunal members with private sector experience.
He essentially, and very colourfully, indicates in the House of Assembly that there is no need for them, that the South Australian jurisdiction now only handles public sector and local government sector issues. There are no issues that relate to the private sector and therefore there is no need to have anyone with any expertise or experience in the real world of the private sector, as some of these stakeholders would have argued.
That contention has been strongly contested by a number of the stakeholder groups. Before I refer to some views given to me from one of the industry associations in relation to that, I do want to refer to a comment piece made by Mr Ben Duggan. I think it is a bulletin under the heading ‘DW Fox Tucker Lawyers Proposed Amendments to the South Australian Employment Tribunal Act 2014’. Mr Duggan outlines the background to the legislation and says:
A princip al jurisdiction of the IR C ourt is the ability to hear monetary claims in accordance with section 14 of the F W Act .
A monetary claim is a claim by an employee for a sum of money:
Due under a contract of employment;
Due under an industrial instrument (award or enterprise agreement); or
Due pursuant to a statute such as the Long Service Leave Act.
The jurisdiction conferred by section 14 of the FW Act does not empower the IR Court to deal with an employment claim for damages arising from a breach of a contract of employment including a claim for reasonable notice.
Currently a manager, senior staff or specialist (who earns in excess of the remuneration cap for an unfair dismissal application) seeking to make an employment claim for damages needs to commence such a claim in State Courts, such as the District Court, where a risk exists of an adverse costs order if their claim is not successful.
Proposed expanded jurisdiction for State Industrial Court.
State Labor has recently released the Statutes Amendment (South Australian Employment Tribunal) Bill 2016 for comment as part of its consultation regarding proposed amendments to the South Australian Employment Tribunal Act (SA) 2014 (SAET Act).
An interesting aspect of the proposed amendments is the introduction of a new Industrial Court, the South Australian Employment Court (SAE Court), with an expanded jurisdiction to replace the current IR Court.
The expanded jurisdiction would provide the SAE Court with the ability to hear a claim arising for damages for breach of a contract of employment.
An action for the grant of an injunction or specific performance would also be able to be heard by the SAE Court.
Interestingly, the proposed amendments include sub-section 26A(3) of the [ Fair Work ] Act which would enable the SAE Court the ability to grant an injunction or provide for specific performance as a remedy where it ‘would best serve the interests of justice in a particular case.’
The SAE Court would in the exercise of consideration of the ‘interests of justice’ be required to consider the following factors in accordance with sub-section 26A(4)(b) of the [ F air W ork] Act:
It lists those particular elements and then goes on to state:
Additionally, the SAE Court may take into account ‘such other matters as the Court thinks fit.’
The effect of the proposed expanded jurisdiction of the State Industrial Court .
An expansion of the jurisdiction to enable an employee to commence a claim against their employer for damages for breach of their contract of employment is a significant step.
The SAE Court would likely enable managers, senior staff and specialist staff to seek an inexpensive and quick remedy seeking damages for breach of their contract of employment.
In practice, the enactment of the proposed changes means the SAE Court may become the preferred Court for such managers and staff to commence claims for breach of their contract of employment particularly for those in the context of the termination of their employment such as claims for reasonable notice.
It further states:
Of particular concern for employers is that the SAE Court in the exercise of its enhanced jurisdiction would in this instance be required to consider the ‘interests of justice’ which it could be anticipated likely mitigates against the employer’s decision to alter or remove an employee benefit that is no longer sustainable into the future.
In practice, the expansion of the jurisdiction in this manner could be expected to make it more difficult for an employer to introduce change at its workplace entrenching inflexible work practices.
As I said, that is written by Ben Duggan.
That explains in legalese—which is why I read it in detail—a number of the stakeholder claims, in particular from employer associations, who are saying either, ‘We think John Rau has got it wrong,’ or ‘John Rau doesn’t know what he’s talking about,’ (depending on how strong the language is that is being used by the various stakeholders) when he said that the Employment Tribunal has nothing to do with the private sector, that it is only about the public sector and it is only about local government. They are arguing that in this bill, what minister Rau is seeking to do is to extend the jurisdiction to make it apply to a whole range of new unfair dismissal cases in the state jurisdiction and, for the reasons Ben Duggan outlines, it might become the jurisdiction of choice.
If that is the case—and I invite the minister’s response as to whether he agrees or disagrees with Ben Duggan’s outline of what the government and the minister are up to in the legislation—can the minister indicate why he has chosen to do this? Who has been pushing for this particular change? I assume it has come from unions and union representatives, but I do not know that. Certainly, from the range of comments I have had from employer associations, those who have picked this issue up have strongly opposed the principle of it, but they have also strongly opposed the minister’s arguments that this jurisdiction really has nothing to do with the private sector at all.
I also ask the minister to confirm what this remuneration cap is. I think it might be indexed at around about the 130,000s, but I seek clarification from the minister as to what the remuneration cap is that Mr Duggan has referred to in relation to unfair dismissal applications. I do not intend to read all the individual associations’ comments to me, which broadly support Ben Duggan’s contentions in that area.
The second area that stakeholders have raised with me—again indicating that either the minister does not know what he is saying or does not understand this particular jurisdiction—is their significant concerns in relation to the training and TAFE disputes area. If I can refer to some examples in relation to apprentice dispute resolution, these stakeholders are again saying, ‘We think this jurisdiction still applies to the private sector and another example of it is in terms of apprentice dispute resolution.’ The submission from the MTA to the Liberal Party, signed by Anna Moeller, General Manager—a name that should be familiar to the minister—dated 4 October 2016 states:
Apprentice Dispute Resolution.
The MTA further wishes to reiterate its position in relation to consequential amendments to the Training and Skills Development Act 2008, which inform our comments in the above, flowing from the original South Australian Employment Tribunal amendment legislation.
In matters where the apprentice conduct and possible training contact—
‘Contract’, it should be, I think—
c ancellation, is concerned, the legislation only provides for conciliation before the [South Australian Employment Tribunal], sitting as the Training and Skills Commission whose President now has the status of a Magistrate. There is no arbitration function envisaged in the legislation as written.
Tribunal members are to be appointed by the minister without specific reference to any representation for expert panels covering industry experience, working with youth, employer representation or union representation.
Further, the elevation of the Presidency to Magistrate rank has necessitated the elevation of representation, so those appearing before the [South Australian Employment Tribunal/Training and Skills Commission] are now required to have legal counsel, rather than allowing for lay advocates with industry knowledge to appear on their behalf.
This diminishes the prospect of fair and reasonable outcomes for employers and employees/apprentices, who are now subject to an adversarial approach rather than a conciliation and arbitration approach that is determined on the facts. It also increases the costs of the process unnecessarily for all parties for a diminished outcome.
Most of the bill is an improvement on current arrangements but on these issues there needs to be a more productive approach in the interests of apprentice well-being and training outcomes.
I have had a range of further submissions on this issue. I will refer to one other which states:
1. In terms of disputed applications to cancel an apprenticeship at the employer’s request, after extensive attempts at performance management, the employer with no strict right of any representation, has to appear opposite the Training advocate (who rarely shows any consideration of the employer ) and put his [or her] own case and argue for cancellation or suspension for a maximum period of 28 days. (Training and Skills Development Act 2008.)
2. Currently these disputes go before a commissioner both in conciliation and, if cancellation is not agreed, then arbitration…
3. … [this permits] Registered Agents to assist as advocates during conciliation, they have not done so in arbitration, leaving the employer, especially small business, unrepresented—whilst the Training and Skills Development Act 2008 gives full representation to the…Training advocate—who, in the past has been less conciliatory than the unions, in [this stakeholder’s] opinion.
Further on, the stakeholder asks about the merits of a particular case about non-performance of an apprentice:
5. The merits of the case were apprentice ignoring the instructions of the employer and other tradespersons, electronic threats to SafeWork SA staff when the investigations revealed the employer’s views were reasonable and 5 conciliation conferences over 6 months (unsuccessful).
This particular stakeholder was arguing the particular case which justified in the employer’s viewpoint the cancellation of the training contract with this particular apprentice. The stakeholder continues:
6. Going forward, the bill suggests (apart from Ministerial discretion to appoint Commissioners for conciliation) that Magistrates will now hear any arbitrations.
7. Our concerns are that such appointees are less likely to have the relevant background to assess the real performance management issues involved here.
8. The solution would be to require the Minister to appoint suitably experienced persons (union and Employer backgrounds as currently applies) to perform the conciliatory and arbitral roles to adjudicate on these matters.
Again, a second stakeholder mirrors the views of the MTA, as Anna Moeller put to the opposition. There are two or three other industry associations which have raised that particular issue again, saying that this relates to employers in the private sector, justifying their different view to the minister in relation to this part of the jurisdiction.
It may well be that the fourth set of amendments that we had tabled yesterday seeks to address, at least in part—maybe in whole, I do not know—this particular TAFE or apprentice training dispute area. It certainly covers that area, but as to whether it addresses the issue to the satisfaction of the MTA and others, we are not aware of their response to the amendments yet. They were the major issues that stakeholders have raised.
There are some specific ones which I will now place on the record by way of questions from some stakeholders and ask for the government’s response to the requests from individual stakeholders. I am wondering whether the minister and the government could give a detailed explanation of clause 41 of the bill (pages 26 and 27) in terms of what the government intends and what the practical impact of these transitional provisions will be.
It talks about what happens to the person holding the office as president of the tribunal. Immediately before the relevant day the person holding the office as a deputy president, etc. So, could the minister outline in actual fact what this means to the president of the tribunal, to any deputy presidents—in particular, I presume deputy president Bartel—and what the transitional provisions will mean for each person currently under the transitional provisions?
I also had a question in relation to clause 52 in the bill we have before us. It is the one in relation to costs, the new amendments in relation to costs. I have been asked from one stakeholder to indicate whether the new costs provision that the government has included changes any of the costs provisions which currently apply in the Fair Work Act—for example, section 110 I think it is, of the Fair Work Act relating to unfair dismissals—and whether or not that continues to operate. Could the government respond to that particular query?
The South Australian Wine Industry Association has put to the opposition a significant number of concerns about the proposed bill and the amendments that have now been incorporated. In essence, I have broadly referred to their first concern, which is about the background and appointment and the appointment process of further members down there. The second one is covered by the issues that Ben Duggan has raised. The third one is covered by the Training and Skills Development Act issue. I will not repeat them. They were the three issues the South Australian Wine Industry Association asked the opposition to raise.
The Motor Trade Association—in addition to the one about the apprentice dispute resolution, which we have already read onto the record—has also raised issues, and these comments are in relation to the first set of amendments which were moved in the House of Assembly, and they are entitled amendment Nos 1, 2, 3, 4 and 5. In relation to amendment No. 2 in that first set of amendments that the government moved in the House of Assembly, the MTA states:
The MTA considers that this wording is vague as to what ‘assistance’ may be provided or what ‘appropriate’ circumstances may trigger such assistance. On this basis the MTA does not support this amendment at this time.
The MTA indicates it does not support amendment No. 3 that the government has moved and successfully introduced into the legislation. The MTA also opposes amendment No. 4 for the following reasons:
The MTA does not support this amendment as it would appear to undermine the conciliation process and remove certainty from conciliated outcomes by allowing for the Tribunal to call up matters regardless of agreed outcomes and re-litigate them, thus increasing the costs, stress, and complexity of matters being considered before the Tribunal without necessarily improving the outcomes for employers and employees. It is unclear why a settlement by consent in this jurisdiction should be less determinative and of less value than in any other.
I ask the government to respond to those concerns the MTA has expressed and whether or not, since the passage of the bill in the House of Assembly, the government, or its officers, have met with the MTA and addressed any of the issues the MTA has addressed by way of any of the four sets of amendments that are now before the Legislative Council. The MTA opposed amendment No. 5 that was moved in the House of Assembly and stated:
The MTA does not support this amendment as it, again, removes industrial expertise from the tribunal and places arbitration powers in the hands of Magistrates who may not have any specific knowledge of industrial matters or of the specific industry in question before the Tribunal. This lack of expert knowledge could compromise outcomes for employers and employees while raising litigation costs and the risk of appeal.
Finally, the Housing Industry Association’s concern was again one that we have already raised, which was in relation to the Training and Skills Development Act. The HIA raises the further issue that it notes that the Employment Tribunal sitting as a South Australian employment court could hear certain criminal matters. The HIA does not support the confer of a criminal jurisdiction to the SAET members. In the HIA’s view, such matters should continue to be heard by the Magistrates Court proper. I ask the minister to respond to that particular concern expressed by the HIA and whether or not the minister, or his officers, have met with the HIA about that particular concern and if so, what their response to the HIA’s concern is.
That is a fair summary of the concerns and issues and questions that have been raised with the Liberal Party about the government’s bill. As I said, it is currently a bit of a dog’s breakfast before the council, with an amended bill from the House of Assembly and now with four separate sets of amendments from the government, and there may well be further sets before we sit again. So, I seek from the government, and its officers, a considered response to the questions that we have posed.
We certainly reserve our position in relation to potentially moving amendments during the committee stage. To assist the passage of the bill, if the government was able to provide written responses to these questions at some stage before we sit again, the Liberal party and its party room could at least then take advice from parliamentary counsel about potential amendments and that might assist the expedition of the consideration of the bill in the Legislative Council.
From the opposition’s viewpoint, we have no wish or intent to unnecessarily delay the passage of this bill and its companion bill but, to be fair, the government is, on an ongoing basis, amending its own bill and we are just trying to keep up with the latest version of it. The government, not unreasonably, has accepted that we will need some time to further consult, so I make no criticism of that. However, if the government would like to expedite the issue by potentially providing written copies of responses to the opposition we will certainly do what we can to decide whether or not we intend to move amendments and at least then place them on file early enough for the government to consider its response to any potential amendments that we might or might not move.