Second Reading

[Speeches and comments from various members]

HON ALISON XAMON (North Metropolitan) [2.15 pm]: I rise as the lead speaker on behalf of the Greens on the Industrial Relations Amendment Bill 2018. I note that the significant change made by this bill is to abolish the position of president of the Western Australian Industrial Relations Commission, and the rest of the bill essentially deals with a series of housekeeping matters. For a long time, there has been a fairly broad, although not universal, consensus to abolish the position of WAIRC president. It was originally suggested in the 1995 Fielding review and then again in the 2003 Cawley review. I note the 2008 Carpenter government bill and the 2012 Barnett government green bill, which both lapsed when Parliament was prorogued, and also the interim report of the 2018 Ritter review. The final report of the Ritter review is yet to be made public by the government. It is a shame that the government has chosen to not release that report prior to this debate, because it is always helpful for members to be fully informed about whether their views are consistent with the most recent advice. I also note that many, though not all, submissions made following the interim report of the Ritter review supported abolishing the role of the president. The Greens are supportive of this position, particularly because much of the state Industrial Relations Commission’s work has been taken over by the Australian Industrial Relations Commission, and it is acknowledged that there simply is not enough work within the state commission to justify continuing with that role.

What I do note, however, is that there has not been consensus on what should happen following the abolition of the role of president, specifically because the president’s role includes appellate functions and dealing with enforcement matters and, importantly, questions of law. I note that these are judicial functions exercised within a tribunal. Although the WAIRC is highly valued as a lay tribunal specialising in conciliation and arbitration of industrial relations matters, it nevertheless works within statutory frameworks and is obliged to follow the law. The lack of broad agreement on what should happen following the abolition of the role of president arises from that tension between the Industrial Relations Commission’s judicial and lay specialist functions. Under the act at the moment, only the president is required to have legal expertise. Section 9 currently requires the president to be an Australian lawyer with at least five years’ experience. In fact, the president has the same status as a judge. I also note that the Industrial Relations Commission’s current acting president is a Supreme Court judge. The next most senior person at the Industrial Relations Commission is the chief commissioner, who is not required to have legal expertise. Under section 9, to become chief commissioner a person needs to have obtained either a high level of experience in industrial relations or a degree or similar qualification within the last five years for studies that the Governor considers have substantial relevance to the chief commissioner’s duties, and that is not necessarily a law degree. The importance of legal expertise to ensure the proper discharge of judicial functions has nevertheless been broadly acknowledged in the last couple of decades since the Fielding review. It is fair to say that there is also a broad view that the need to have industrial relations expertise is even more important. Having appeared as a representative in the state Industrial Relations Commission, I very strongly concur.

There is also strong resistance to any reform that could make the Western Australian Industrial Relations Commission more formal, complex, overly legalistic or costly, because we want to ensure that the Industrial Relations Commission, as a specialist lay tribunal, remains accessible to workers, and we do not want to reduce its efficiency. It is particularly important that we do not reduce the current focus on conciliation as a means to address matters and have too strong a focus on its judicial determinations. We therefore have an inherent tension in trying to strike the right balance between ensuring that the IRC operates effectively as a semi-judicial body and maintaining its core focus on the conciliation of matters. That is not easy. Reports published over time have shown that tension has never been satisfactorily resolved. Over the last decade, a series of models floated have suggested that we carve out the Industrial Relations Commission’s judicial functions and give them to courts; allow non-lawyer members of the Industrial Relations Commission to exercise judicial functions, but I am not sure that I am fine with that; require the chief commissioner, and possibly the other commissioners, to have legal expertise, as well as industrial relations expertise, and there might be something in that; and have a Supreme Court judge assigned to the Industrial Relations Commission on a case-by-case basis—effectively, whenever the Industrial Relations Commission is exercising its judicial functions. None of the proposed models has been met with anywhere near universal acceptance. Right now, the issue is largely academic because four of the five industrial relations commissioners happen to have a law degree, and three also have legal experience. I note that that will not always necessarily be the case. The act has no requirement for any commissioner to have legal expertise.

The Industrial Relations Amendment Bill 2018 takes the path of least resistance, by simply abolishing the role of the president. I note that it retains the Industrial Relations Commission’s judicial functions without introducing any requirement for any of the commissioners to have legal expertise, although most of the current industrial relations commissioners have legal expertise. That will be a problem at some time in the future; it will be interesting to see the decisions a future government might make on that. The commissioner appointments of a future government might result in the Industrial Relations Commission not having a single commissioner with enough legal expertise for it to properly exercise its judicial functions. Hopefully, that is unlikely and will not be the case. I urge any future minister to bear that in mind when making future appointments. It needs to be ensured that some level of legal expertise is retained on the Industrial Relations Commission.

In the meantime, section 90 of the act states that an appeal lies to the Industrial Appeal Court from any decision of the full bench, and the commission on a stay application under section 49(11), or the commission in court session. The appeal right is limited to three grounds only: that the matter is not actually an industrial matter, and therefore the decision exceeded the jurisdiction; that the appellant has been denied the right to be heard; and that there has been an error in the construction or interpretation of an act, regulation, award, industrial agreement or order in the course of making the decision appealed against. My concern lies primarily with that last point, because industrial relations is an increasingly complex area of law and, inadvertently or otherwise, it would be the last ground that commissioners with no legal expertise could potentially fall foul of. Members would be aware that appeals processes are costly and time-consuming, and it would be greatly concerning if merely because we have not ensured that the commission is made up of people who understand how to work within legal frameworks, we end up driving people down this path. That would not be an unlikely occurrence. People who have worked in industrial relations, particularly in the federal system, are aware of a history of quite a number of appointments of people with a very poor understanding of industrial relations law who have repeatedly made appalling decisions that have been subject to appeal over and again. Indeed, I am aware of one commissioner who was notorious for virtually inviting the appeal process to commence as soon as people were aware that a matter was to be considered in front of that particular commissioner, just because we could almost count on the bias of that commissioner ensuring that the law would not be followed. That particular commissioner was appointed from industry, not the union movement.

There has not been any specific consultation on this bill, although, as already noted, the relevant issues have been the subject of considerable discussion for many years. It is clear from those discussions, including some of the submissions provided to the most recent review, that there is some support for the line taken by this bill. However, I again note that the views of the final review of Mr Ritter remain unknown, except potentially by government members, because the government has chosen not to release that final report. I think that is most unfortunate.

Even though there is broad support for the provisions of this bill, I need to put on the record that the Greens are not without reservations about the potential implications of this bill. We would have much preferred a bill that ensured that internal legal expertise at the Industrial Relations Commission was formally maintained in some way to ensure that it would continue to properly exercise its judicial functions. However, we again note that given the current commissioners, this is likely to be achievable, so we will not stand in the way of the bill in its current form.

On the transitional provisions, I have two matters that I would like the minister to confirm on the record. The first relates to the pension and other rights and entitlements of past and present presidents. Following the briefing, I understand that the bill will not change or remove any right or entitlement of a past or current president. I further understand that although clause 19 of the bill removes rights under the Superannuation and Family Benefits Act 1938, no person will be affected by that. I note that this place is currently considering another bill that will have a very substantial effect on existing —

Hon Alannah MacTiernan: Member, can I just clarify this? You are clear about the position of the president, but you want to know whether any existing members will be affected by that provision to —

Hon ALISON XAMON: Specifically, I want to know whether the bill changes or moves any right or entitlement that a past or present president currently has. People would be aware that the Greens have very strong views about not changing people’s entitlements unilaterally. I seek an assurance from the minister on the record that this bill will not reduce the rights or entitlements of any person in any way. I understand from the briefing that that is the case, and it would be good to get that on the record.

The second matter about transitional provisions, on which I am seeking confirmation, is about the cases that have been partly heard by the acting president or by the full bench, including the acting president, as at 26 December 2018, when current employment is due to expire. It is my understanding, following the briefing, that the Industrial Relations Commission is trying very hard to ensure that all cases that are currently before the acting president, whether alone or on the full bench, will be finalised by 26 December this year; and, if so, my concerns fall away. In the event that that is not the case, will the minister be approving the continuation of the acting president’s term, under proposed section 2 of schedule 6, “Transitional provisions”, until they have been finalised? I understand that it is the government’s intention to ensure that any cases currently being heard by the acting president will not have to, effectively, be re-heard by an entirely new individual. In the event that they are not able to be finalised by the time this position is abolished, I seek an undertaking or at least clarification from the government about what will happen with those particular matters. Those are the two things that I particularly want clarified: how the bill will affect the current case load; and to confirm that it will not retrospectively affect the entitlements of people who have duly earned them. I retain concerns about a future make-up of the Industrial Relations Commission and the need to ensure that there will be legal expertise on the commission so that we do not end up in a situation whereby people are consistently flouting the law simply because of a lack of knowledge. However, I note that that can certainly be dealt with through appropriate appointment. Not everybody who is an industrial relations commissioner needs to be a lawyer, and I note that some of the best industrial relations commissioners are those who have extensive industrial relations history, particularly those who are very skilled at appropriate conciliation functions. I recognise that we are trying to achieve that balance. It is one that we will have to keep a close eye on, particularly around the areas of appointment. We do not want an Industrial Relations Commission that is top-heavy with black-letter lawyers who may have absolutely no clue whatsoever how to resolve a dispute, but we also have to ensure that we do not go down the path whereby people are so consistently getting the law wrong that we are just forcing people into ongoing appeal processes that are time-consuming and expensive.

[Speeches and comments from various members]

Hon ALANNAH MacTIERNAN: Hon Alison Xamon asked about the transitional provisions regarding the entitlements of past members. The legislation preserves all the existing entitlements, including superannuation entitlements for presidents. The judicial pension entitlements are preserved by clause 66 of the bill under the Judges’ Salaries and Pensions Act. That clause continues the operation of sections 20(12) and 20(13). The provisions in sections 20(8c) and (8d) of the Industrial Relations Act do not apply to any former acting president or president. Consequently, no transitional provisions are necessary on the repeal of those provisions by the bill.

Hon Alison Xamon also asked for clarification on what happens to cases that have been partly heard. The full bench has made a commitment that it will continue to deal with those cases, if that is possible, and that the acting president, up until such time as the position is abolished, will seek to bring to fruition as many of those matters as is possible. Given her other duties, the acting president is obviously at some point not going to be able to continue to fulfil that role. Therefore if we did not abolish the position, we would still have to appoint another acting president regardless, so the issue of matters being part heard and having to be re-heard would happen in any event. Although it is an issue, and the current acting president is working very hard to resolve and minimise it, the abolition of this position, in reality, is not going to cause that problem because the acting president’s current appointment expires on 26 December. At some point we are going to have to deal with that but, knowing the work ethic of the current acting president —

Hon Alison Xamon: All matters will be resolved—I hope so.

Hon ALANNAH MacTIERNAN: Yes, but, as I said, it is an unavoidable problem, because her appointment expires on 26 December in any event.

Hon Alison Xamon: Is that confirming that it is unlikely that that position might be extended on an acting basis for the purpose of the resolution of any outstanding matters?

Hon ALANNAH MacTIERNAN: Obviously, the workload of being on the Supreme Court is pretty huge, but that will be the subject of discussion with the minister. We are very mindful of not imposing too much of a burden but, as I said, we will be seeking to minimise any disruption and the number of matters that might have to be reheard. There are not a huge number of matters going before the court in any event, but all efforts will be made to minimise the number of matters that might need to be re-heard.

With that, I thank members for their support. I think everyone recognises that it is important for us to abolish this position. The cost of a position that is the equivalent of a Supreme Court judge, I am advised, is in the order of $700 000 a year, when salary, staff and chambers are taken into account. I gather from the comments in the other place that it is recognised that that is not a wise allocation of resources. I thank members for their support and I look forward to being able to conclude this bill.

The PRESIDENT: Minister, before you sit down, you talked about tabling that document.

Hon ALANNAH MacTIERNAN: Yes. Can I also get a copy of it?
[See paper 2286 - Industrial Relations Assessment Bill 2018 — table of matters concluded.]

Question put and passed.

Bill read a second time.

Leave granted to proceed forthwith to third reading.

Third Reading

Bill read a third time, on motion by Hon Alannah MacTiernan (Minister for Regional Development) and passed.


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