Long Service Leave (Calculation of Average Weekly Earnings) Amendment Bill - 13 October 2015

Wednesday 10 February, 2016

Mr TARZIA ( Hartley ) ( 11:09 :13 ): I also speak in favour of the Long Service Leave (Calculation of Average Weekly Earnings) Amendment Bill 2015.

As we have heard this morning, it was introduced by the Deputy Premier on 9 September 2015. The bill seeks to amend the Long Service Leave Act 1987, and it has been drafted in response to a very significant Supreme Court appeal case heard in January of this year, that is, Flinders Ports Pty Ltd and Woolford.

Justice Stanley made a number of comments in his judgement. I have had the pleasure of having a little bit to do with Justice Stanley in the past, and he is an outstanding legal mind and an outstanding advocate as a solicitor as well. I know that he is an expert in this area of law and extremely well qualified to comment.

I implore the Attorney-General to not only listen to Justice Stanley's comments but also listen to some of the other judges who have, in recent times, made judgements and called on the parliament to bring into law their suggestions. The most brilliant legal mind in South Australia would have to be the Chief Justice, Chris Kourakis, who, in recent times, has made a suggestion to this parliament that the parliament correct part of the drug trafficking laws in this state. The Attorney has ignored the most outstanding legal mind and his suggestion—

The Hon. J.R. RAU: Point of order, Deputy Speaker.

The DEPUTY SPEAKER: Order! There is a point of order. Minister.

Mr Tarzia interjecting:

The DEPUTY SPEAKER: Be seated for a point of order.

Mr Tarzia interjecting:


The Hon. J.R. RAU: The tribute presently being offered to the Chief Justice by the member for Hartley is indeed touching, and if we were having a valedictory or something for him, I think it would be entirely appropriate, but considering the fact that we are not talking about either the Chief Justice or anything to do with drugs—

The DEPUTY SPEAKER: Your point of order is relevance?

The Hon. J.R. RAU: Yes.

Mr TARZIA: Thank you, Deputy Speaker.

Mr GARDNER: Point of order, Deputy Speaker.

The DEPUTY SPEAKER: The member for Morialta has a point of order.

Mr GARDNER: I make the point that the Attorney's point of order is mischievous because clearly the member for Hartley's comments about the Chief Justice go to the merits of the bill.

The DEPUTY SPEAKER: I think that we will dispense with all the extra noise and return to the substance of the bill.

Mr TARZIA: I will say, Deputy Speaker, that when the Attorney does become a judge, I will have nice things to say about him too.


Mr TARZIA: Getting back to this bill, the bill does seek to amend the Long Service Leave Act 1937, and it has been drafted in response to a landmark court case, as I have said. It was a decision related to a casual worker at Port Lincoln who had worked on a number of contracts, I believe, from about 1990 until 2008. From 2008 to 2011, when his employment was formally terminated, that worker was unable to work, due mainly to the work-related injury he had sustained. Justice Stanley, in his conclusion, goes on to say at paragraph 115, that he was of the view that the deceased:

…was entitled to a payment in lieu of long service leave upon the termination of his employment on 23   September 2011. However, in the unusual circumstances that obtain in this case, where the deceased did not work for almost all of the three years immediately preceding his entitlement to payment in lieu of long service leave arising, the calculation of that entitlement pursuant to section 3(2) is in a negli gi ble sum. This is an unfortunate result. I consider it deserves the attention of the Parliament.

He went on to allow the appeal to set aside the order made by the Industrial Court magistrate and to remit the matter to the Industrial Court magistrate for the purposes of making an order, after calculating the entitlement to payment in lieu of long service leave, in conformity with the reasons that he had given.

As my colleague has pointed out, payments under the Long Service Leave Act are based on an average calculation of the worker's last three years of employment. In this case, due to the injury sustained, as we have heard, that earning capacity was not much at all because of the injury he had sustained. The bill seeks to clarify these aspects and to confirm the principle that part-time and casual workers should not be treated differently from full-time workers, who do not have their long service leave payment impacted as a result of workers compensation. Obviously the government is arguing that if a casual or part-time employee is entitled to long service leave payments they should not end up with a zero minimal payment because they were injured while performing their work.

The government has also claimed, I believe in a briefing to members on this side of the house, that the bill has been supported by IRAC, and obviously that organisation includes not only employers but also employee organisations. I understand that also we have had verbal confirmation supporting the bill by an array of organisations, including the Master Builders Association, the Australian Hotels Association and the Law Society of South Australia.

Obviously some organisations have flagged to us that this could potentially be another burden, hindrance and cost to business, however, I would say to them that on balance in this instance I think we do need to do what is right and stick with the judgement of the Full Court of the Supreme Court and the bill that the government has put before us. I think it is a common-sense bill; and, once again, I would implore the government to listen to the Supreme Court on more occasions, and I support the bill.