STATUTES AMENDMENT (SOUTH AUSTRALIAN EMPLOYMENT TRIBUNAL) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 4 August 2016.)

Ms CHAPMAN ( Bragg—Deputy Leader of the Opposition) (16:06): I rise to speak to this bill and indicate that we will be supporting the passage of the bill. We are still consulting with some groups, and we indicate that we may need to reserve our position on any possible amendments in the Legislative Council. The Hon. Rob Lucas has assisted the opposition in advising us on this matter, as he covers industrial relations matters for the opposition. I indicate that to date we have received some responses from Business SA and the Australian Industry Group, which does not fill us with confidence in respect of the support for this bill, but there may be a number of other stakeholders who wish to express a view.

I also indicate that I have spoken to some in the profession who deal with areas in respect of employment law, and there has been a general indication of support from those who practise in this jurisdiction. I understand that the Law Society of South Australia has not put in a submission and will not be doing so. We are assuming that they are quite agreeable to the bill that is being presented, otherwise I am sure that we would have heard from them. As I say, there are a number of matters that have been raised by the two significant stakeholders who have responded.

This bill was introduced on 4 August by the Attorney as the Minister for Industrial Relations. The rationale for this bill is that it is to establish a one-stop shop for employment-related disputes at the South Australian Employment Tribunal. It is not a jurisdiction with which I am overly familiar, but my understanding is that apart from back pay disputes, which can relate to anybody in South Australia in an employment situation, largely this is an area of industrial matters that relate to the government as the employer or local government as the employer in disputes with their employees. We are talking about public servants, whether they are supporting local or state government.

Members might recall that some years ago in South Australia this parliament agreed with the government to allow industrial disputes between all except public servants in the state or council arena to be transferred to the Fair Work Commission and dealt with at a federal level. We were left with a structure, I think it is fair to say, that would have been built for a much more expanded area of dispute down to a smaller pool.

When the government in 2014 (I contributed to that debate) appointed under statute the South Australian Employment Tribunal, which was to establish a tribunal with jurisdiction to review decisions on employment and to confer powers to that tribunal, it was to coincide with return-towork legislation that had been advanced and passed, and there was to be a new era in respect of the return-to-work regime and its implementation and enforcement.

The model that was promulgated in the statute we are now amending followed the model undertaken in SACAT (the South Australian Civil and Administrative Tribunal), which had similarly been established in the preceding year, and then accepted jurisdictions on guardianship and residential tenancy disputes and valuer-general disputes, as I recall. However, largely that entity has been left untouched since, notwithstanding promises from the government that they were going to transfer many other jurisdictions to that entity. We have not seen those bills as promised.

I was particularly looking forward to the transfer of the Freedom of Information Act application appeals, which of course still have to wallow away in the old District Court. Nevertheless, that promise has not been fulfilled. The government went out after the 2014 election in a consultation frenzy of reviews, and we had 'transforming' everything. We ended up with Transforming Health, which of course is a complete disaster. We had Transforming Criminal Justice, which had some good points and bad, and we also had the Transforming Employment Dispute Resolution issues paper and policy statement, issued in April last year, to deal with reform in this area.

Ultimately, having got through the election, the government were desperate for ideas. They went out to the public to try to get some response to what they might do. It is fair to say that in this jurisdiction it was not unreasonable that, if they were going to have a separate court to deal with workplace injury disputes, it would be extended to other areas of employment law and the disputes that needed to be determined with it.

I could never understand why the return-to-work disputes were not put into SACAT. It is exactly the same model. It was a model that was to bring in a regime where you had a president, a deputy and magistrates and you had power to compel to give evidence. There were to be provisions for expert reports and it was to be a no-cost jurisdiction. This was sympathetic with the industrial dispute regimes that existed, and it was consistent almost exactly with the model that was supplied to SACAT.

Why did it never go into that? The only reason I was ever given was that they needed to get on with transferring other jurisdictions into SACAT, that is, guardianship and residential tenancies. As I say, they were busy doing that and there really was no time. On 1 July, a date that was in imminent—namely, 10 months later—they needed to get something in place for the new WorkCover legislation. That was the explanation given. I suspect it was more in line with those who were members of the various panels and tribunals that have existed independently of SACAT wanting to remain in place and not have their positions wiped out. I suspect that that is the real reason. Nevertheless, having set up a separate tribunal, it is not unreasonable that, under this bill, we then transfer the other areas of employment dispute to the Employment Tribunal.

Consultation on this is interesting. It is fair to say that one of the aspects under consideration is who should appoint commissioners and the like in this tribunal, especially with other existing entities like the industrial commission now to be transferred. The groups consulted were a whole list of employee associations, which, of course, are largely unions—everything from the Ambulance Employees Association of SA to United Voice, with about 40 or so unions or employee representative bodies in between—and the employer associations which, of course, include Business SA and a number of other associations representing industry.

Some judicial members were consulted, which is reasonable, as well as the other 'usual suspects'—if I can describe them that way—including the Law Society and the Australian Lawyers Alliance. The consultation was extensive to the extent of what has been dealt with. Two parties so far have introduced some concern. Firstly, Business SA supported in principle the establishment of the South Australian Employment Tribunal. They are happy to welcome some simplifying process if it reduces red tape and achieves cost-effective outcomes. Those are always welcome initiatives and Business SA confirms that.

However, they are concerned about loss of expertise, lack of stakeholder consultation and what they describe as 'an increasingly legalistic approach to employment disputes'. There was, I suppose, some scepticism as to what would be delivered for the practical outcomes sought by employers. In respect of the claim of loss of expertise, what I have seen in the bill really relates to a new order as to the appointment of those who are to be on the panels, etc. Historically, these personnel have been nominees of the associations or the respective unions or, at least, a number of candidates from whom the government can choose.

I think it is fair to say that, if this was the Attorney's view in having a different regime—which I agree is consistent with what I would now call a skills-based type appointment model rather than a representative body appointment—as much as these associations or unions think they are a voice of their group, the fact is that they usually have only a small number of their membership in those unions or associations. Indeed, if one looks at the profile of the members of Business SA, it is pretty clear that they do not represent the business community in South Australia.

They have some membership of it but, in fact, a number of industries have their own representative bodies and they, too, do not always have amongst their membership anywhere close to a majority of the businesses that operate. It is so, too, for unions, which may well have the interests of their members at heart, but may well not represent the views of an extended group.

Even if one looks at a highly unionised workforce like the train drivers in South Australia, I note that, in the course of a recent enterprise bargaining process, they had their union representative quite appropriately discussing with the government the terms of a new enterprise agreement. There has been a breakaway group. I cannot remember the name of the chap who headed it now but, in any event, he purported to represent those in the driving or signalling community of that industry. This is a real-life, contemporary example of where to simply nominate a particular association or union as being the body that is appropriate to nominate a representative falls foul of what I think is an acceptable test.

In the last 14½ years, I must say there have been plenty of bills that have come into this parliament where the poor old industry groups and unions have been smashed along the way when it comes to being able to actually nominate members of boards, but there are also a number of boards that have just been abolished and repealed. Certainly, I will say the government have been consistent on one thing.

Firstly, they have salvaged a number of unions along the way, but can I say they have at least put into the statutes some skills-based criteria or experience criteria for consideration. Whilst current or future ministers might still have a very large area of discretion in respect of the appointments they ultimately put to cabinet and approve, the fact is there are some guidelines there and there is, I suppose, at least on the face of it, some administrative law that helps to support that.

I also refer to the Australian Industry Group. They actually outright oppose the bill and its intention to extend the Industrial Relations Court. They do not see that it is appropriate for it to have the jurisdiction to deal with damages claims regarding alleged breaches of contract for employment, including claims for reasonable notice where employment is terminated. Currently, those claims need to be pursued in the state courts, such as the District Court.

The Australian Industry Group are very concerned that we are moving into a tribunal model which is not the same I should not say 'standard' because it is a different model approach, but they say that the District Court, Supreme Court or industrial court, which has been transferred, are the better courts to deal with a number of these matters, and that even things such as unfair dismissal matters could of course come into this area.

If I can just say one other thing about this bill, I and, I am sure, other members are mindful of the fact that, when we talk about employment disputes, we are talking about disputes between the government and an employee, or a local council and an employee, for most of the disputes that we are talking about. In the back pay of wages or in return-to-work disputes, obviously, we are talking about everyone but big business and the government because we are talking about all of those who are in—

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: I beg your pardon, it does include those, and the Attorney is quite right. It deals with those who are bound by the Return to Work Act, that is, government, self-insureds—the former is actually a self-insured—and those who are bound to pay a levy through the Return to Work Act through the corporation, and this tribunal is going to have a much more expanded role.

I am a bit cautious about some of the concerns that have been raised, and the Hon. Rob Lucas has certainly raised some concerns, so I would like to reserve our position on what may be considered in the other place. I see I have just been handed a number of amendments. I am sure the Attorney will explain what they mean and who has asked for them.