South Australian Employment Tribunal (Miscellaneous) Amendment Bill

Tuesday 9 April 2017

South Australian Employment Tribunal (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 13 April 2017.)

The ACTING PRESIDENT ( Hon. J.S.L. Dawkins ): I call the Hon. Tammy Franks.

The Hon. T.A. Franks: I am happy for Rob to go first—he seemed keener.

The Hon. R.I. LUCAS ( 16:18 :25 ): I thank the Hon. Tammy Franks. I assure the honourable member that I will not delay the passage of the bill. I rise on behalf of Liberal members to put the Liberal Party's position on the South Australian Employment Tribunal (Miscellaneous) Amendment Bill 2017. As members who were involved in the discussion on the parent legislation some time ago will indicate, there was a substantive debate at that time. The Liberal Party has determined that this is essentially a technical bill. A number of specific provisions, omissions, are being corrected in the legislation, and for those reasons we are supporting the legislation and do not intend to delay its passage through the Legislative Council.

Essentially it corrects some omissions from the Statutes Amendment (South Australian Employment Tribunal) Act 2016, and it further expands the scope of the jurisdiction of the South Australia Employment Tribunal. We passed that parent act in late 2016, and it is proposed by the government, we understand, to commence the operation of the legislation on 1 July 2017.

The overall intent of this particular bill is to consolidate additional employment-related jurisdiction powers onto the tribunal, in addition to the existing jurisdiction under the Return to Work Act 2014. Section 45 of the parent act is being amended. The current effect of section 45 is that the tribunal cannot proceed to hear any matter unless a prehearing conference has first been held before a presidential member. This bill will remove this requirement unless it is related to proceedings under the Return to Work Act 2014 and other regulations prescribed.

The impact of the amendment in this bill will be that certain cases can move immediately from an unsuccessful conciliation and mediation or arbitration process with parties to a tribunal hearing, rather than having to go through another element, such as a prehearing conference before a presidential member. We sent this bill, as we do with all bills, out to stakeholders. It is fair to say we were not swamped with replies from stakeholders in relation to the legislation. The only replies we received were from Self Insurers of South Australia and the Motor Trade Association. We thanked them for their feedback, but they indicated that they had no major concerns with the legislation. For those reasons, we support the passage of the bill.

The Hon. T.A. FRANKS ( 16:24 :12 ): I rise on behalf of the Greens to make a second reading contribution and to the South Australian Employment Tribunal (Miscellaneous) Amendment Bill 2017. The Minister for Industrial Relations introduced this bill on 29 March in the other place. It has been before this council since 13 April. It appears on the surface to be somewhat of an uncontroversial bill, other than to make note that it is indeed what I would call a 'fixer-upper bill'. It is a bill that we need to pass before the other bill comes into operation to fix it up.

Of course, this bill seeks to correct omissions from the Statutes Amendment (South Australian Employment Tribunal) Act 2016, which is soon to go into operation. The Minister for Industrial Relations outlined some of the reasons for this in the other place, and I will reflect on some of those words:

Since the passage of the Amendment Act, a need to amend s45 of SAET Act has arisen. In brief, the current effect of s45 is that SAET cannot proceed to hear any matter unless a pre-hearing conference has first been held before a Presidential member. The proposed amendment of s45 will be beneficial to parties and to SAET.

SAET proposes that, on the commencement of the Amendment Act, a SAET Commissioner or Presidential member undertaking a conciliation, mediation or arbitration (ADR) process with parties that proves to be unsuccessful would be able with the parties consent to move immediately into a contested hearing of the matter to arrive at a binding determination of the dispute. That is, it is not anticipated that the proceedings would be adjourned for the parties to return at a later time for the contested hearing of the matter.

At this time, it is proposed that this process would mainly occur in the case of reviews under the Public Sector Act 2009 and employment disputes currently heard in the Industrial Relations Commission under the Fair W ork Act  1994.

The minister goes on to state:

The Bill proposes to amend s45 so that the requirement for a mandatory pre-hearing conference before a Presidential member of SAET will only apply in the case of proceedings under the Return to Work Act 2014 and in any other prescribed class of proceedings. The latter would have the advantage of allowing the making of Regulations to require pre-hearing conferences under other legislative schemes as appropriate.

The amendment of s45 will produce benefits to SAET and the community in those cases where it is appropriate to move immediately from an unsuccessful ADR process to a hearing.

He goes on to say:

The Bill makes a small number of other amendments to the Education Act 1972, the Equal Opportunity Act 1984, the Technical and Further Education Act 1975 and the Amendment Act which were overlooked during the original drafting of the Amendment Act.

The question to which I seek a response from government is: how were these amendments that are now before us overlooked in the original drafting of the amendment act? In introducing this bill, the minister goes on to say:

The amendment of s54(2) of the Education Act 1972 will ensure that the President of SAET can choose to list Supplementary Panel Members for all review proceedings under that Act. This is achieved by changing the world 'Division' to 'Act '.

The minister goes on to note in his contribution:

Serious consequences could result if these other amendments proposed in the Bill are not made, and would represent a change from the status quo. This includes most importantly that Supplementary Panel Members will not be available to sit for the full range of review proceedings under the Education Act 1972, that the power in s18A(2) of the Technical and Further Education Act 1975 to reinstate an officer will not be able to be exercised as broadly as intended and that the appointments of members of SAET may be at risk.

That is at the midway point of the minister's contribution. My second question is: are these minor amendments or amendments that indeed could have serious consequences if not fixed? By way of further background, I note that the Greens do and did support the amendment act, and indeed the South Australian Employment Tribunal quite rightly will resolve disputes relating to the return to work scheme but will also hold responsibility to address other jurisdictions.

These of course include the jurisdiction of the Industrial Relations Court of South Australia, matters relating to dust disease, an aspect of the criminal jurisdiction that has also been added including the summary and minor indictable offences that are currently in listed as 'industrial offences' under the Summary Procedure Act and matters relating to the civil jurisdiction relating to contractual disputes between employers and employees. These of course are some of the wideranging areas of responsibility and, indeed, a very important range of responsibility held by the South Australian Employment Tribunal.

The South Australian Employment Tribunal, as the Minister for Industrial Relations in the other place in speaking to this amendment bill has put it, is really a one-stop shop for resolving matters relating to industrial relations in this state. As I mentioned in my contribution to that establishment act, it is the objective of the tribunal to provide fair and independent resolution of workers compensation cases and indeed assist injured workers to return to work and also to address the list of industrial relations disputes arising in the jurisdictions that I have mentioned.

However, I will take the chamber's time to put on notice our concerns that have been raised to my office just today by the Australian Education Union (SA Branch) not with specific regard to this bill but with regard to the regulations that will come from this bill. I will note their points of concern, and I would seek some response from the government at the second reading and in the committee stage and, of course, in the longer term I would hope that the Minister for Industrial Relations can address these particular AEU(SA) concerns. The concerns raised with my office state:

The AEU SA Branch is concerned that the amended wording in the draft Education Variation Regulations 2017, seems to indicate (without prior consultation) a diminishment in the appointment and the role/functions of the AEU within the prospective SAET appeal jurisdiction. The Australian Education Union does not support any changes in regard to their functions as prescribed, in the existing Education Act and Regulations as a result of implementation of the South Australian Employment Tribunal processes and seeks urgent consultation if there is a change in the AEU's role in this manner.

For the purposes of this debate, it would be I think, appropriate for the minister to present whether or not there is a change in the AEU's role as a result of this bill and if there is not, to clarify that and if there is, to clarify what the next steps will be. The note continues:

1. Education Variations Regulations 2017. The reference to the "Director-General" in regulations 4 and 40 remains perhaps in lieu of Chief Executive in the Education Variations Regulations 2017. This is consistent with the current Education Act 1972 and presumably may be updated further when the amalgamating education and children's services legislation progresses further.

The proposed regulation 38 concerning lodging of appeals with SAET, which replaces current wording, does not detail the form of the notice of appeal per the current regulation. Assumedly there will be a notice of appeal form to complete however this is not clear and does not detail the content required e.g. groun ds of the appeal per regulation  38 in the current education regulations.

The next point is:

The draft regulations specify that the current regulation 39 will be revoked. The current regulation 39 specifies that the appellant and respondent will be notified regarding the appeal hearing date at least 7 days beforehand and that the appeal will be heard as soon as practicable.

Further clarification may be required regarding proposed wording in draft regulation 11 as [it] proposes to substitute wording 97(1) in the current regulations effectively removing reference to AEU in new wording in regard to 'vacancy in the membership of a panel of officers of the teaching service under 54(1)(b) of the act.' Also the reference to s54(1)(b) of the act doesn't seem to correlate with that section in the Education Act.

Point 2 of the issues raised by the AEU with my office just today is:

2. The proposed variations in the other draft regulations are more insignificant e.g. fair work regulations etc and do not make substantive changes but minor procedural amendments such as updating words to include SAET etc.

The AEU wishes to express their concern that in future iterations the government may seek to move the disciplinary jurisdiction of the Teachers Registration Board to SACAT or SAET. I put on record, on behalf of the AEU, that they strongly believe that the Teachers Registration Board should remain in its current form. So if the minister representing the minister could clarify whether the government has any intention of making amendments to the AEU in terms both of that membership of the panel and whether they have any changes afoot for the Teachers Registration Board, if they could make it clear now that would be appreciated—or ruling them out would be further appreciated.

Further, I do hope that we will have some answers as we proceed through these debates into the committee stage. With those few words, we will be supporting the second reading of the bill. We do find it somewhat uncontroversial, and heartily unnecessary had the due diligence been done with the original bill in terms of the drafting, but in this case we are happy to help the government with yet another fixer-upper from this minister.

The Hon. T.T. NGO ( 16:32 :54 ): I rise to speak in support of the South Australian Employment Tribunal (Miscellaneous) Amendment Bill 2017. On 1 July 2017 the Statutes Amendment (South Australian Employment Tribunal) Act 2016 (the amendment act) will commence. The amendment act will confer additional employment-related dispute resolution jurisdictions on the South Australian Employment Tribunal (SAET).

The SAET was established by the South Australian Employment Tribunal Act 2014 (the SAET act). SAET commenced operations on 1 July 2015 with jurisdiction over workers compensation disputes under the Return to Work Act 2014. SAET was established on the premise that the collective industrial relations skills and experience of SAET's members and administration would, in the future, be utilised for resolving other employment-related disputes. The aim is that SAET will, as much possible, be a one-stop shop for resolving disputes between employers and employees. The amendment act confers the following employment-related jurisdictions on SAET, in addition to its existing jurisdictions under the Return to Work Act 2014, namely:

1.Dust disease matters, under the Dust Diseases Act 2005;

2.The Industrial Relations Court and the Industrial Relations Commission of South Australia, under the Construction Industry Long Service Leave Act 1987, Fair Work Act 1994, Fire and Emergency Services Act 2005, Industrial Referral Agreements Act 1986, Long Service Leave Act 1987, Public Sector Act 2009, Training and Skills Development Act 2008, and Work Health and Safety Act 2012;

3.The Equal Opportunity Tribunal, under the Equal Opportunity Act 1984;

4.The Teachers Appeal Board and teachers' classification review panels under the Education Act 1972 and Technical and Further Education Act 1975;

5.Part of the jurisdiction of the Police Review Tribunal under the Police Act 1998;

6.The Public Sector Grievance Review Commission under the Public Sector Act 2009;

7.Criminal jurisdiction in respect of summary and minor indictable offences that are currently industrial offences under the Summary Procedure Act 1921; and

8.The common law civil jurisdiction in respect of contractual disputes between employer and employee, and common law claims for damages under part 5 of the Return to Work Act 2014.

The current bill is primarily required to correct omissions and errors in the amendment act and to support the jurisdictional expansion of SAET. The details of the proposed amendments are set out in the minister's second reading explanation and I refer to some of them here. Since the passage of the amendments act in December 2016, a need to amend section 45 of the SAET Act was identified by SAET.

This is the purpose of clause 4 of the bill. The proposed amendments of section 45 will be beneficial to parties and to SAET as it will allow a SAET commissioner or presidential member undertaking a conciliation, mediation or arbitration (ARD) process with parties that prove to be unsuccessful to move immediately into a contested hearing of a matter, with the parties' consent to arrive at a binding determination of the dispute. It will not be necessary for the proceedings to be adjourned for the parties to return at a later time for the contested hearing of the matter.

The bill proposes to amend section 45 so that the requirements for a mandatory pre-hearing conference before a presidential member of SAET will only apply in the case of proceedings under the Return to Work Act and in any other prescribed class of proceedings. At this time, it is proposed by SAET that this process would mainly occur in the case of reviews under the Public Sector Act and employment disputes currently heard in the Industrial Relations Commission under the Fair Work Act.

The amendment of section 45 will produce benefits to SAET and the community in those cases where it is appropriate to move immediately from an unsuccessful ARD process to a hearing. The bill makes a small number of other amendments to the Education Act, the Equal Opportunity Act, the Technical and Further Education Act and the amendments act which were overlooked during the original drafting of the amendments act.

The need to amend section 54(2) of the Education Act was first raised by the Australian Education Union during consultation on the amendment act. Section 54(2) has been inadvertently drafted too narrowly and does not reflect the status quo where panel members can sit for all proceedings under the Education Act.

As drafted, section 54(2) would only to apply to have the president elect that supplementary panel members sit in review proceedings 'under this division', that is, proceedings under division 8 of part 3 of the Education Act, which is only concerned with appeals in respect of promotional level positions. It does not include proceedings for review of retrenchment, transfer and retirement decisions, disciplinary decisions and other review rights that might be provided for under the Education Regulations 2012 from time to time.

This amendment in clause 1 of the schedule to the bill will ensure that the President of SAET can choose to list supplementary panel members for all review proceedings under that act. If section 54(2) is not amended as proposed by this bill, the President of SAET will not be able to elect to have supplementary panel members sit with a SAET member to hear these other types of proceedings. This was not intended to be the result of the drafting of the amendment act.

The need to make the remaining amendments in the bill to correct errors in and emissions from the amendment act was discovered by legislative services staff of the Attorney-General's Department and staff of the Office of Parliamentary Counsel in the time since the passage of the amendment act. At this stage, on its proposed commencement on 1 July 2017, the government intends that the amendment act will confer all the additional employment-related jurisdictions on SAET, except for jurisdiction under the Education Act and the Technical and Further Education Act in parts 8 and 20 of the amendment act.

Given the importance of the amendments in this bill as they relate to SAET's jurisdiction under the Education Act and the Technical and Further Education Act, parts 8 and 20 will not come into operation until this bill is passed. Should the parliament pass this bill, it will enable these parts to also come into operation on 1 July 2017.

Serious consequences could result if the amendments proposed in the bill are not made and would represent a change from the status quo. This includes that supplementary panel members will not be available to sit for the full range of review proceedings under the Education Act and that the power in section 18A(2) of the Technical and Further Education Act will not be able to be exercised as intended. With that, I commend the bill to the council.

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) ( 16:44 :02 ): I would like to thank all members for their contributions on this important legislation. I look forward to further discussing the bill in depth during the committee stage.

Bill read a second time.

 

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