Kelly Vincent MLC

STATUTES AMENDMENT (SHOP TRADING AND HOLIDAYS) BILL

27/03/2012

Adjourned debate on second reading.

(Continued from 15 March 2012.)

The Hon. R.I. LUCAS (15:32): I rise to speak to the second reading of the bill on behalf of Liberal members in this chamber. First, in relation to this particular debate and all that has gone around it, I indicate that it will demonstrate the enormous power of the shoppies union and its operatives here in South Australia and in the South Australian parliament.

One only has to look at the donations to the Australian Labor Party from the shoppies union in South Australia to see the enormous financial clout that the shoppies union and its operatives have over the Australian Labor Party and the Labor government in South Australia. A minimum of $1.2 million has been donated by the shoppies union to the Australian Labor Party since it was elected in the 2001-02 financial year. That clearly buys a significant amount of influence on a party such as the Labor Party and a government such as this—and that is only what is declared under the provisions of the disclosure requirements of electoral legislation in South Australia.

One is also aware of the enormous influence and support that the shoppies union provides in a range of other ways, through the provision of staff for campaigns in particular. One only has to look at the maiden speeches of newly elected members from the right in South Australia to see a litany of acknowledgements of paid officers of the SDA (or the shoppies union in South Australia), being acknowledged for their tremendous amount of work, and the financial assistance obviously being provided by the union, its members, and supporters to those members of the right who are elected to the caucus.

When one looks at the register of interests, one can see that just under 50 per cent of members of the government are members of one union: the shoppies union in South Australia. Given the potential complications of unnamed members and others, I will not actually list the members of the shoppies union and their dual membership of the Labor Party because of potential legal complications, but nevertheless when one goes through the register of interests, without putting a precise number on it, it is quite clear that just under half the members of caucus are members of the shoppies union.

The only reason some ministers, such as the member for Bright, become ministers in the end is by transference of union allegiance from the former union the member was a member of which, in essence, was an arts industry alliance—I am not sure of the exact title of it, the MEAA, I think—and eventually in the recent past she converted to the shoppies union and, miraculously, having done that, become a minister last year.

When one controls the purse, when one controls the numbers, one has significant influence. We saw that last year when the head of the shoppies union in South Australia, Mr Malinauskas, of the Malinauskas dynasty I have spoken on before (and I will not delay proceedings by referring again in detail to those), together with the Treasurer, Jack Snelling, had the power and influence to go to the former premier, tap him on the shoulder and say, ‘You’re time’s up; we’re going to install a creature of the left on the nomination of the right as premier.’

That is the tremendous power the shoppies union has in South Australia. So, when the shoppies union finalises a deal on behalf of its members, completely separate from the government of the day, with the head of Business SA here in South Australia (and I note without the going to the board of Business SA for approval or endorsement, but that is an issue for that organisation to resolve in terms of it is own governance), and at that stage presents the deal to the supposedly duly-elected, democratically-appointed Premier and leader of the state, Mr Weatherill, for his approval.

The deal is done, negotiated, finalised: this is the arrogance of the shoppies union in South Australia, the arrogance of its operatives, that it negotiates and concludes the deal, and only at that stage goes to the Premier of the state. Forget about the minister of the Holidays Act or minister for shop trading—he is an insignificant part of this, as we have seen over the last weeks and months when the Premier has had to take control of this debate and deal—and poor old the Hon. Mr Wortley; they took just about everything out of his portfolio and left that in there and then they realised well, hell, he can’t handle this either, we’d better handle it ourselves, so the Premier has been handling the deal in relation to the issue.

So the Hon. Mr Wortley, as the minister responsible, was ignored. The deal then went to the Premier. Even during the negotiations and what we are evidently going to see in terms of the final deal that has been negotiated with a number of members in this chamber, that was a deal that had to be approved by Mr Malinauskas and the shoppies union; that is, the Premier was not allowed to, was not in a position or authorised to, was not able to negotiate the compromise, unless Mr Malinauskas and the shoppies union said to Mr Weatherill, ‘We will now let you go ahead with this particular deal.’

That is the state of this government in South Australia, that is the state of the Labor Party in South Australia. If you have the dollars, if you give them money, if you control the preselections, if you control the appointment of premiers, if you control the appointment of ministers and if you control the appointment of ministerial staff into ministers’ offices, then ultimately you are running the government of the state on issues that are of importance to you. Shop trading is clearly an issue of importance to the shoppies union, and one can understand that.

What this parliament is being asked to do with this whole deal, even with its negotiated compromises, in essence is to sanction the takeover of decision-making in this state on this issue by Mr Malinauskas and the shoppies union. The government cannot do anything, is not given approval to do anything, to agree to any changes, unless Mr Malinauskas and his union allow it. It is as simple as that; and, when we come to debate the government’s amendments and the other amendments during the committee stage of the bill, we will see the sticky fingerprints of Mr Malinauskas and his colleagues from the shoppies union all over not only the original bill but also the amendments that the government and the Premier have been allowed to negotiate. That is the essential background to the legislation that we have before us.

I want now to look at the history of shopping hours deregulation in South Australia. It has been such a minefield that I do not propose to go through every aspect of the changes, but suffice to say that since the 1970s we have seen referenda, we have seen royal commissions and we have seen committees of inquiry to make changes to shopping hours in South Australia. The brutal reality is that, irrespective of government (and I say that advisedly, Liberal or Labor), the trend has been over each of the last decades—the seventies, the eighties, the nineties, the noughties and whatever we are up to now—for further liberalisation of shopping hours within South Australia. As I said, that is irrespective of the government of the day. It has occurred under Liberal governments and under Labor governments.

When I was first elected to this chamber in the early 1980s, believe it or not the issue in relation to shop trading hours—which was the most thorny issue of the day, a controversial issue which was opposed by the Labor Party for years and years—was in relation to red meat sales in South Australia. The then leader of the opposition in this chamber, the Hon. Martin Cameron, led the charge in relation to liberalising shopping hours in relation to red meat.

In 1984 and prior to that he moved a number of private member’s bills. The situation, believe it or not, as ludicrous as it sounds, not that many years ago was that red meat could be sold in butcher shops either on late shopping nights, which was either a Thursday or Friday night, or on Saturday mornings, but it was not allowed to be sold on both those occasions. You had to make a choice as to whether you were going to sell red meat in a butcher shop on Saturday morning or on the one night of late night shopping—Thursday or Friday night—during that period.

There were three private members’ bills controversially argued through that particular period in terms of liberalising access for working families and families to buy red meat at hours which best suited them. All the arguments of a similar nature that we are hearing now we heard during the 80s in relation to that bill. There were various things, including royal commissions, commissions of inquiry and a referendum in 1970, etc.

Then, again, in the early 1990s the Labor government made moves in relation to liberalising shopping hours and then in 1995, with the election of the Liberal government. In 1993 the former Labor government gave ministerial certificates of exemption to allow supermarkets to trade until 9pm on weekdays. That was a controversial issue at that time, that is, late-night trading until 9 o’clock on weekdays for supermarkets.

With the election of the Liberal government eventually, after a number of things occurred, in 1995 there was a bill which again further liberalised shopping hours in South Australia so that what we saw was an opening up of trading in the CBD on Sundays. That was the first occasion, in mid-1995, when we moved to Sunday trading. When one goes back to that particular debate now, everyone said at the end that this was going to be the beginning of the end—depending on which side you were on, I should say. There were those who supported it and those who opposed it said it was going to be the beginning of the end for a number of businesses.

In 1995 everyone (Labor and Liberal) said, ‘That’s it. We’re not going to allow a further extension of trading hours,’ because that was a special deal done for the CBD for Sunday trading in 1995. Everyone said at that stage, ‘We’re not going to allow Sunday trading in the suburbs.’ Of course, what happened? In 2003, with the election of a Labor government this time, the government introduced a bill for Sunday trading in the suburbs, and the arguments used were on equity grounds.

There were competition principles which asked: how do you justify allowing a Coles to operate in the CBD on a Sunday and not allow the same Coles supermarket in Unley, Burnside, Norwood or Plympton to open to trade on a Sunday? This was a Labor government arguing that you had, on competition principles, to extend the trading options into the suburbs after both Labor and Liberal in 1995 saying, ‘That’s it; we’ve opened up the trading in the city; we’re not going to extend it to the suburbs at all.’

The reality was that almost a decade later a Labor government came in and introduced those changes at that stage. It had a financial gun at its head in that the National Competition Council (or commission at the time, with Graeme Samuel) was saying that there would be financial penalties on the basis of competition if we continued to persist with a situation which penalised businesses in Burnside, Norwood or Plympton from opening at a time when we were allowing those same businesses or equivalent businesses to operate in the CBD.

Now we have this situation where we are going to have public holiday trading in this bill in the CBD. I know the argument that is being used: it is being used publicly. We had the most unusual situation of having the two Peters lobby the Leader of the Opposition Isobel Redmond and myself—the two Peters being Messrs Malinauskas and Vaughan, up until now the most unlikely duo of joint lobbyists that I could have contemplated. There they were, in the Leader of the Opposition’s office, almost holding hands and hugging each other, supporting the deal and urging the Liberal Party.

Mr Malinauskas, to his credit, was quite frank as to why he was supporting this particular change. He was saying—and the argument he has been using to members of parliament as well, I know, because he has put it to us—that by doing this we will forever and a day prevent any further liberalisation of shopping hours in South Australia. This will be the end of it, because Peter Malinauskas said it will be. He will defy the tidal wave of evidence that we have seen over the last 30 or 40 years in relation to shopping hours under Labor and Liberal governments; he, Peter Malinauskas, so decrees, he has said that this will be the end of it.

I know he has put that to members of parliament. He has said, ‘This is it; there will be no more.’ He says that the reason he supported this was that he believed Business SA was an advocate for further liberalisation of shopping hours in South Australia, and in this way he would stymie Business SA. He would lock them into a position of achieving this. Indeed, whilst Peter Vaughan said, on behalf of Business SA, that their position would remain the same, he nevertheless, arm in arm and hand in hand, happily chimed in and said that this is the last chance for liberalisation of shopping hours; that it is either this or it’s nothing, there will be nothing in the future.

As deluded as Mr Malinauskas is, whilst he has tremendous power now he will not have that power forever and a day. At some stage he will be promoted to state or federal parliament through the shoppies union, and he will become an operative within the state or federal parliamentary party. He is not in a position to bind future parliaments—or, indeed, future governments, Labor or Liberal.

As I have traced the history of shopping hours deregulation and liberalisation, it has been Labor and Liberal governments that have inevitably moved to further liberalise shopping hours in South Australia for all the obvious reasons at the time. Mark my words, whether it is in 10 years’ time (it seems to happen about every 10 years) or 15 years, at some stage in the future a future parliament will be debating—as they did in 2003 under a Labor government—the issue of the inequity between a business in the CBD such as a supermarket being able to open, while less than a couple of kilometres away, in Unley or Burnside or Norwood or Plympton, exactly the same supermarket is not able to open.

That is the reality. Those who believe Mr Malinauskas’ story that this is the end of it, that nothing more will ever happen, are flying in the face of history and in the face of the facts and what has occurred over the years. The reason it is inexorable—painful, but inevitable and inexorable—is that when one looks at this shop trading act it is a farce. Look at the regional areas of South Australia. With the exception of a small number of about five or six limited shopping districts, every area in regional South Australia can open any day of the week for the whole year. In my home town of Mount Gambier, every store can open on Christmas Day, Good Friday, ANZAC Day or any other day of the year.

For good reasons, many of them, or most of them, do not, but the shopping hours act that we are supporting here says that in regional areas they can open. And regional areas are not the far-flung areas from Adelaide. Mount Barker is in the regional areas—one of the growth areas of Adelaide, of which there has been much debate, is completely deregulated. The supermarkets and shops in Mount Barker can open on Christmas Day, Good Friday and ANZAC Day. They can do whatever they like. Just south of Aldinga, it is exactly the same; just north of Gawler, the interesting debate is going to be in relation to Roseworthy when the huge development potentially occurs there as part of the—whatever it is called, the greater Adelaide CBD—I forget the technical description. That area is totally deregulated in terms of shop trading hours.

So, that is the brutal reality. We are not talking about something which applies across the state; in terms of trading, we are talking about only that bit of the state within the areas of Mount Barker, Gawler, and Aldinga. And now we are talking about the central business district as defined by the terraces and the Torrens. In addition to that, any shop under 200 square metres can open whenever it likes. I know we have had views from the IGA group and others, but my local IGA in my suburb opens on Christmas Day, and that is terrific for all of us around the suburb that I live in, because we can go to the IGA on Christmas morning—it is generally open until 1pm on Christmas morning—and do all of our shopping on Christmas Day.

The Hon. R.L. Brokenshire: Couldn’t you have done it before Christmas Day?

The Hon. R.I. LUCAS: Well, I could have done it. But the reality is that it is there, and they are opening and trading. We have not forced them. The reality is the act that we are supporting allows IGA—I think for supermarkets it might be under 400 square metres—but the local IGA in our suburb, and in many other suburbs, trades every day of the year, and certainly on Christmas Day. All of those smaller stores can open whenever they like—cafes, restaurants, delis, whatever—can choose to open whenever they wish. That is the situation that we have.

Then you have the exemptions for hardware stores, and heaven knows what else. I am not going to delay the chamber by going through all of them, but have a look at them. Basically, anyone who sells food can open whenever they want to—Christmas Day, Good Friday, ANZAC Day—whatever you intend to do. That is the state of the law that we have at the moment, and that is because it is a product of members like us over the years wrestling and agonising with the sorts of changes that we have made on this particular occasion, and that is inevitable, I accept that.

There are pressure groups, and it is not just the shoppies union, there are others who are advantaged by the current laws who will seek to maximise their advantage. There are those who are disadvantaged who will seek to get rid of the disadvantages in the law. The law that we have at the moment is a product of decades and decades of decisions taken by members like us responding to those particular pressures over the years.

The point I make in relation to this is that those people like Mr Malinauskas, who have said to members, ‘This is it, vote for this because that finishes it, there will be no more,’ are deluding themselves. The only issue is when, and under what government—Liberal or Labor—at some stage in the future. I know the Hon. Mr Brokenshire has flagged some potential amendments in the media in relation to that, but the reality is that you can amend whatever you want to amend but a future parliament and a future government can just amend the amendments away.

The Hon. R.L. Brokenshire: At least it has to come through the parliament.

The Hon. R.I. LUCAS: Well, they can all come through parliament.

The Hon. R.L. Brokenshire: This is not really through the parliament. This was done outside.

The Hon. R.I. LUCAS: Well, I don’t know how you’re going to stop that either. The shoppies union will always have the power with a Labor government in South Australia. They will not with a Liberal government, I can assure you. Mr Malinauskas will not be walking in and tapping Liberal leaders on the shoulder saying, ‘Don’t come Monday.’ That is something for the province of the Labor Party.

That is the brutal reality of shop trading hours regulation in South Australia. I know what Mr Malinauskas and others have been saying, that this will be the end of it. All I am saying is, for those of us who can live long enough, in 10 or 15 years have a look at the parliament of the day debating it, and they will be debating the next step in relation to this. Mark my words: just as Labor came back in 2003 to say, ‘We must extend Sunday trading to the suburbs on competition grounds,’ the same arguments will develop over the next 10 years in relation to public holiday trading.

How do you say to the Competition Council, the competition commissioners, or whatever it will be at the national level under national governments, that you can say to one business in the CBD, ‘You can trade and take all the business from everyone else on public holidays, but if you happen to be located two kilometres away we are not going to allow you, on geographic grounds, to trade, to protect your business and your employees and the jobs within your industry’? That is why Labor came back in 2003 with the changes to extend Sunday trading to the suburbs. As I said, in 10 years or so, at some stage a Labor or a Liberal government, on competition and other grounds, will inevitably need to respond to those sorts of pressures.

This issue has obviously been controversial, with two key groups of people both supporting and opposing the bill, or aspects of the legislation. The Liberal Party’s position, as enunciated by Isobel Redmond, myself and others, is that we do support the liberalisation of trading hours in South Australia, and we support this particular step towards liberalising trading hours. However, we do not support the bribe, the payout or the buy-out to Mr Malinauskas’s shoppies union in South Australia with penalty rates of 250 per cent for any of the hours to be worked on these two part-day public holidays on Christmas Eve and New Year’s Eve.

There are many, many groups that I will read onto the record because they have been active as part of the SA Business Coalition, but indeed there have been others as well: the Australian Hotels Association, Clubs SA, the South Australian Wine Industry Association, the Restaurant and Catering Association, the ACAA, the Caravan and Camping Association, the Motor Trade Association, the South Australian Tourism Industry Council, the SA Liquor Stores Association, the Baking Associations of Australia, the Australian Automobile Dealers Association (AADA), Tourism Accommodation Australia, the YHA, Hosted Accommodation Australia Ltd., Service Station Division SA, the Boating Industry Association, the Shopping Centre Council of Australia, the Australian Newsagents Federation, the South Australian Dairyfarmers Association, the Supported Accommodation and Care Services group, and the South Australian independent liquor outlets, Sip’n Save.

Separately, we have received lobbies from the Aged Care Association, the Printing Industries Association of Australia, one of the national retailer groups whose exact acronym and name escapes me at the moment, and there are many, many others. I have listed just a number of them to indicate the diversity of the groups that are opposing this particular aspect of the legislation in relation to the 250 per cent penalty rates for Christmas Eve and New Year’s Eve.

I am sure other members will go into some detail, but let me touch on some of the aspects, because they have been well canvassed in the media. The Business Coalition has highlighted, in the main, the essential unfairness of the legislation, that is, that small businesses from Ceduna to Mount Gambier, right across the State of South Australia, will have to bear the financial penalty, or cost, to allow a small group of retailers to open in the central business district for trading on public holidays. Their position is understandable. They say, ‘Why should we, as a small business, struggling as we are in this state economy with the lowest growth prospects and growth performance of any state in the nation, be lumbered with the additional costs of two extra public holidays which do not exist anywhere else in Australia?’

I have heard members in this chamber say the economy is struggling, there are problems for businesses with our tax impost on businesses, our WorkCover premiums are the highest in the nation, our tax regime is the highest and toughest in the nation, our threshold for payroll tax is terrible compared to the other states, and our land tax provisions in this state (particularly above $1 million for commercial operators) are the worst in the nation. All of those costs are being imposed on families and, in particular, small businesses in South Australia. We bemoan those costs in South Australia yet this parliament, potentially, is going to be voting to add to those costs for small businesses in South Australia.

We are saying: let us be the nation’s leaders not in anything else such as economic growth, job growth, retail sales growth or anything like that, but let us lead the nation in the number of public holidays we can dream up to increase the cost base of businesses in South Australia. If we cannot lead on the indicators that everyone would like to lead on, let us lead on the number of holidays we can think up—and we will not even think about a real holiday for a real day: we will think about a part-day public holiday that starts at 7 o’clock at night. The original plan was 5 o’clock at night and now it is 7 o’clock at night. We will have public holidays starting at 7 o’clock to midnight for two extra days in the year.

At least this Labor government and its supporters will be able to say we are leading the nation in the provision of public holidays for our workers. I can see why Mr Malinauskas, the shoppies union and the other unions that have supported this campaign would jump up and down and say that is a wonderful thing but, for the life of me, I cannot understand why Mr Vaughan and Business SA would be holding hands with Mr Malinauskas and jumping up and down in unison on increasing the cost base in South Australia, again, on the quite erroneous basis that they claim, that this is the last chance for any change in relation to shopping hours regulation in South Australia.

It is for Mr Vaughan and Business SA to argue their case with businesses in South Australia but, certainly on the information available to me, not only have members of Business SA resigned but they have also taken action in lobbying the board of Business SA in relation to not only this issue but how on earth that organisation managed to get itself into this predicament.

One would imagine, with the imminent passing (in a position sense) of Mr Vaughan from the position of chief executive of Business SA in June of this year, there will be the opportunity, one would hope, for possibly a newly elected or re-elected board of Business SA to look at its own governance arrangements and perhaps make the necessary changes to ensure that such a situation cannot occur in the future where a deal can be done without consultation with everyone else that will be implicated and affected in South Australia, in the way that this particular deal has been done.

There is much evidence—because there are a number of other major issues I need to address today—I will leave to my colleagues to address, in particular those who represent regional communities. We know the evidence of the motor traders and others who have indicated their views, and the pressure will be on regional communities, as opposed to big population areas such as the suburbs of Adelaide. In the regional communities, where, in terms of population or travellers, it is a marginal thing for a business to open between 7 o’clock and midnight on Christmas Eve or New Year’s Eve—and, in particular, we are talking about service stations and businesses like that—in the view of those business associations it is likely that a number of those services and businesses will make the decision not to trade on those nights.

I am sure that in other areas where the populations are bigger and they can justify it some will continue to trade. It will just mean that the rest of us end up having to pay significantly increased costs for whatever service is being provided in those establishments on those nights. Again, it impacts the cost base of working South Australian families, and those who seek entertainment, hospitality or other services on Christmas Eve or New Year’s Eve, which, because of the 250 per cent penalty rate, will be significantly higher.

Another group has raised its head, and they are not the small businesses: they are the associations, the non-government organisations, that provide 24-hour services that will be impacted—Mr Paul Carberry from the Aged Care Association and a number of others, such as the disability services sector—and I know there has been contact from those within the sector that provides women’s shelters, men’s shelters or youth shelters. I understand that my colleague the Hon. Michelle Lensink, who has some background in this area, will be able to put on the record in some greater detail the concerns that have been raised in that area.

We understand that as part of the final deal (and I have some questions to put to the minister at the closure of my contribution) there have evidently been some undertakings given in relation to state-funded, non-government organisations. It is obviously going to be important that we are aware of what those deals are before debate concludes on the legislation because I would not trust this government, or this Premier as far as I could drop-kick him—and that is not very far at all.

My advice to any other members who are flirting with the idea of trusting him is that they do not. If you are going to do a deal, do the deal whilst you have the leverage and can see the colour of their eyes and the pile of money they are going to promise in relation to supposedly additional moneys to cover the increased costs because, once the bill is through, there is no leverage. Once the bill is through, they can say what they wish in terms of what they are prepared to offer.

I think that is important as another reason the minister needs to come to this house before the bill is concluded and passed in this house to provide the precise details of what is going to be done for the non-government organisations. It does not suffice to say, ‘We are going to negotiate a package.’

What we need to know is who is being included and what groups are being included within this negotiated package. The press release says ‘state funded’ (again, my colleague the Hon. Michelle Lensink will understand the funding arrangements better than I), but if the aged-care sector is a federally-funded sector, what is being done, or proposed to be done, in relation to compensating those organisations that inevitably have increased costs because they have to provide care and staffing 24 hours a day, 365 days a year, and therefore a 250 per cent penalty rate for this number of hours inevitably increases their costs?

What we need to know is: what are the groups that are being considered in terms of the government funding? Do they include the aged-care sector and, if they do not, what is being done for them? In the disability sector, which particular groups are being looked at? Are the shelters being looked at? What are the other 24-hour care organisations or facilities that will have increased costs, and are they being considered? What we need to know is the precise nature of the deal the government is going to offer to members in this chamber to get them to support the bill, and that is something which obviously needs to be done.

In relation to that, I will address some comments a bit later in my contribution. The Hon. Mr Brokenshire has tabled amendments. He provided copies of those amendments late yesterday afternoon to the Liberal Party and I assume to some other members as well. We immediately last evening sent those amendments out to interested parties to seek their urgent comment. We will not be in a position to debate those amendments until the next sitting week, which will be next week, because, as I have said, the amendments were not received until yesterday afternoon.

Already, in the initial stages of feedback from some groups, they have raised significant concerns about the drafting of the Hon. Mr Brokenshire’s amendments. I am not blaming it on the Hon. Mr Brokenshire because, obviously, the drafting instructions are given to parliamentary counsel, but one particular group has raised the complication that the amendments by the Hon. Mr Brokenshire appear to be predicated on the basis of 5 o’clock continuing to operate as opposed to 7 o’clock.

One group has raised potential unforeseen circumstances in relation to what will occur in terms of current trading regulations for certain stores on Christmas Eve and New Year’s Eve; that is, that Mr Brokenshire’s amendments will actually cut back on trading hours in certain circumstances for some existing stores if his amendments are approved. I suspect that is not what Mr Brokenshire’s is intending, but it is proof of the point I am making; that is, we received the amendments yesterday. We sent them out last evening to some stakeholders, and we are awaiting their response. The normal course of events in this chamber is that we would certainly have at least the sitting week to be able to consult and then to form a view as a party, and other members to form a view, based on the consultation in relation to the amendments the Hon. Mr Brokenshire is proposing to move.

To that end, the government is playing a game at the moment. The game is, ‘We’re not going to proclaim holiday trading in the CBD over this coming Easter, just over 10 days away, until you lot in the parliament do what we tell you to do and pass the legislation within the time we stipulate.’ It is for other members to respond to that sort of bluff and bluster by the Premier, the minister and the government. The reality is that it is not essential. The government says that it has the numbers in this chamber when it ultimately comes to a vote, whether it is this week or next week, to put its deal through the parliament. If that is the case, there is no plausible reason the government, on the basis that it has the numbers next week, cannot do what it has done for the three public holidays already, and that is to proclaim the additional shopping hours, if that is its intention, in the CBD over the coming Easter.

The traders were saying, two weeks ago and again last week, ‘You have to give us a reasonable amount of time to organise shifts, workers, advertising, and all those sorts of things. We need to know when we are going to be open.’ It is intolerable to leave it until late this week at the very earliest—or, in more likelihood, sometime next week—before they make a decision and say, ‘Okay, the legislation has now passed.’

Clearly the reality will be that, if the legislation passes, it is unlikely to be proclaimed and receive royal assent, etc., so the government is probably going to have to proclaim trading in the CBD over Easter under the existing act anyway, rather than rely on the passage and royal assent of this bill. It is certainly my strong view that those who have influence over the government at the moment ought to be telling them they should get on with it. They have the numbers; put the retailers in the CBD out of their misery in terms of what is happening over the coming Easter period, and then this parliament can appropriately consider the amendments from the Hon. Mr Brokenshire next week, after there has been appropriate consultation.

These were the provisions in relation to the original bill, and they dominated the debate for quite a number of weeks. It has only been in the last week to 10 days that a whole new complication has arisen, as a result of legal advice from Minter Ellison that has been commissioned by some members of the Business Coalition, in relation to the implications of the legislation. I intend to put on the record significant amounts of that legal advice, and I will be seeking, through the committee stages of the debate, detailed responses from the minister to the issues that have been raised.

Contrary to what the Premier and the minister have been saying, it is not just those businesses that choose to open after five or seven on Christmas Eve and New Year’s Eve that might have increased costs as a result of this bill; hundreds—and possibly thousands—of other businesses and organisations which do not actually open after five or seven on Christmas Eve and New Year’s Eve might potentially have increased costs as a result of the deal that has been done between the shoppies union, Business SA and the government.

Just before I go through the advice from Minter Ellison, I will give just one example of this. I received a letter from the General Manager (SA and NT) of the Printing Industry Association of Australia, Peter Mansfield, who has raised this particular issue in the legislation. One of my colleagues, Mr Griffiths (member for Goyder), was contacted by his local newspapers as a result of the Printing Industry Association’s concerns.

Mr Griffiths, who has asked me to raise this issue, says that he was contacted by the editors of two regional newspapers operating in his electorate who were concerned with this proposal—this bill that we are talking about—for two additional part-day public holidays. The editors were concerned that they would be required to provide time off in lieu for all their employees. Mr Griffiths says these concerns were directed to the two regional editors by Mr Mansfield. Mr Mansfield’s letter to me states:

The bill adds two new part-day public holidays for South Australia, being 5pm to midnight on 24 and 31 December. We understand that these new public holidays are being introduced as a reward for retail and hospitality employees who may be required to work at such times in return for allowing additional opening hours for businesses in the Adelaide CBD. We also understand that the additional public holidays are not quarantined to employees in the Adelaide Central Business area, but will apply across the State.

A number of our member printing businesses have staff who work regular shifts covering the 5pm to midnight hours. If this Bill becomes law it appears that these staff will have the choice as to whether or not they work the critical production shifts on Christmas & New Year’s Eve. If they do choose to work they will be entitled to public holiday penalty rates.

In addition, if this Bill becomes law it appears that all other staff, whether they usually work these hours or not, will be entitled to paid time off in lieu for these additional public holidays, consistent with every other public holiday.

South Australia is already the highest taxed State in Australia according to the Commonwealth Grants Commission, making it a difficult place to do business. The addition of two more public holidays will further increase the competitive challenge and financial burden on our members and all of South Australia, for no benefit to members and minimal to the state.

I ask the minister, in his response, to provide a detailed response to the concerns of the Printing Industries Association. In raising that issue, I use that as where this is already going; that is, these groups are raising issues that costs might increase for businesses (and this is a newspaper) and organisations like theirs where workers do not work from 5 o’clock (or 7 o’clock) to 12 o’clock on Christmas Eve or New Year’s Eve.

If his concerns and the concerns that Minter Ellison has raised in its legal advice are correct, then we are talking about hundreds, if not thousands, of other businesses and/or organisations that might potentially see increased costs, depending on the enterprise bargaining arrangements and award provisions that apply to them and their workers. The letter from Minter Ellison is addressed to a member of the Business Coalition, Mr John Chapman, Executive Director, Motor Trade Association of South Australia. The executive summary states:

1.1If passed, the Bill has the potential to impact SA employees and employers, irrespective of their hours of operation on 24 December and 31 December. That potential will not be done away with by reducing the length of the part holiday.

1.2In many instances, the interplay between the part-day public holidays and provisions of modern awards and enterprise agreements will either provide an additional cost to employers, uncertainty for employers in how to correctly pay employees or create a direct conflict between the State law and particular industrial instruments.

1.3The Bill will potentially affect businesses which usually close between 5.00pm on 24 December and reopen the working day after 1 January and require employees to take annual leave for that period. Such businesses may be required to recredit annual leave taken by those employees over the shutdown period.

There are further details which I will put on the record in a moment, but what Minter Ellison is saying is that for all those businesses and organisations that close down on Christmas Eve and come back to work the day after New Year’s Day and whose employees are required to take annual leave during that period, depending on enterprise bargaining arrangements and award provisions there is the potential for those employees to be given additional pay or additional annual leave, but those businesses with those employees to incur the additional costs.

We can all think of any number of organisations like that. Indeed, Parliament House closes down from Christmas Eve (generally at 3pm) and work recommences the day after New Year’s Day. Whatever the enterprise bargaining arrangements are for this chamber and the staff who work for members, the staff of Parliament House are required to take annual leave during that particular period. So, a question that will go to you and/or the Clerk will be: what are the implications in relation to the award provisions and enterprise bargaining arrangements for staff in Parliament House, should this particular bill pass, in light of the evidence provided from Minter Ellison? The Minter Ellison advice states:

2.4The NES provide that:

(a)employees are entitled to be absent from work on a public holiday;

(b)if an employee is absent from work, they are to be paid their base rate of pay for their ordinary hours of work on the public holiday;

(c)employees may reasonably refuse to work on a public holiday; and

(d)employees are not required to take annual leave while on a public holiday.

Under section 4 of this advice—’Which employees will be entitled to the benefit of part-day public holidays?—it states in part:

4.2It would seem to be the case that employees who do not normally work their ordinary hours of work between 5.00pm and midnight, will not receive the benefit of the part-day public holidays. However, due to the novelty of a part-day public holiday and its timing, we are unable to be certain about this position.

4.3This uncertainty is exacerbated in the context of the NES provisions concerning taking annual leave in a period during public holidays:

89 Employee not taken to be on paid leave at certain times

Public holidays

(1) If the period during which an employee takes paid annual leave includes a day or part day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid annual leave on that public holiday.

4.4.If an employee took annual leave between 24 December and 31 December inclusive, then that period would include the following days or part days of public holidays in 2012:

(a)24 December

(b)25 December

(c)26 December

(d)31 December

It follows that, applying s 89, that the employee is taken not to be on paid annual leave for those days and would receive the benefit of the public holiday.

4.5The Explanatory Memorandum to the Fair Work Bill 2008 states:

Clause 89—Employee not taken to be on paid annual leave at certain times

Under clause 89, an employee will not be taken to be on paid annual leave:

during a day or part day that is a public holiday which falls during the period of their absence from work on annual leave

…The effect of this clause is that, if a public holiday falls during a period when an employee is absent from work…then the employee’s annual leave accrual will not be reduced by that day or period.

4.6.Accordingly, it is possible that claims for additional payment or recrediting of annual leave may be made by any employee who has been required to take annual leave over the Christmas shutdown period, regardless of when the employee usually works ordinary hours.

That is the critical part of the advice. What it is saying is that, regardless of whether you normally work after 5pm or after 7pm on Christmas Eve and New Year’s Eve, if you have taken leave between 24 December and 31 December inclusive, under these particular provisions and the National Employment Standards, it is entirely possible that as a worker you would be entitled to an additional payment or a re-crediting of the annual leave you took during the Christmas shutdown period. So, you will get the benefit of the break and then an additional break with the additional costs clearly being borne by small businesses and small organisations that might be structured in this particular way.

The Premier and the minister claim that this relates only to those businesses or workers who work on Christmas Eve or New Year’s Eve, but the advice from Minter Ellison makes it quite clear that that is probably not correct. Certainly, the government and the minister need to respond to the specific legal advice that Minter Ellison has given the business coalition and which I have put on the record on its behalf during this debate. Section 6 of the Minter Ellison advice states:

Implications of part-day public holidays under modern awards.

…Modern awards and enterprise agreements which we have reviewed and which raise issues of conflicts and additional costs for employers are:

(a)Manufacturing and Associated Industries and Occupations Award 2010

(b)Hospitality Industry (General) Award 2010

(c)Registered and Licensed Clubs Award 2010

(d)Clerks—Private Sector Award 2010

(e)Vehicle Manufacturing, Repair, Services and Retail Award 2010

(f)Coca-Cola Amatil (Aust) Pty Ltd South Australian Manufacturing Employees Enterprise Agreement 2010-13

(g)Premium Wine Brands Pty Ltd Production (Barossa Valley) Enterprise Agreement 2010.

Section 6.2: employees on rostered days off. An example of provisions is the clause taken from the Manufacturing Associated Industries and Occupations Award 2010.

That is clause 44.3 (I will not read all that), but Minter Ellison then advise, on the basis of that particular award provision:

Accordingly, an employee who usually works past 5 pm and who has a rostered day off on 24 December or 31 December would receive an extra day of pay, day off or day of annual leave at the employer’s discretion. This would be the case if any of the employee’s ordinary hours of work were normally worked between 5 pm and 12 o’clock midnight. In some industries, such as licensed clubs and hospitality, the obligation for employers to pay an extra day’s pay or a day of annual leave in respect of an RDO, rostered on a part-day public holiday, may be incurred regardless of whether an employee usually works any of the hours between 5 pm and 12 o’clock midnight. This entitlement was set out in modern awards such as the Hospitality Industry General Award 2010.

Then there is a reference to 37.1 national employment standards and a reference to the particular award provision. Minter then concludes:

With the definition of an RDO as being a 24-hour period, there is a risk that full-time employees who have an RDO rostered on 24 December or 31 December, and who do not normally work after 5 pm, will receive both the RDO as a paid day off in addition to an extra day’s pay, alternative day off or day of annual leave. The same issue is raised under the Registered and Licensed Club Award 2010.

Again, I ask the minister in his response to give us an answer to that. What Minter is saying here is that, in some award provisions and enterprise agreements, workers who have rostered days off on 24 December or 31 December—so you are working your arrangements; you have got an RDO so you are not actually working on those particular days and you actually have that day off—because of this bill, your employer will have to pay you another day annual leave in lieu thereof. How good is that? Where can we get an award or enterprise agreement that does that for us?

You have the day off, but because of this bill that will be passed, Minter Ellison is saying that you will have the day off and then you will get another day off later on. How will members in this chamber—the minister in particular—defend on Leon Byner or on Bevan and Abraham why that ought to be the case in South Australia, why employers in small businesses should have to support that sort of provision in the bill? How do you justify that? When we have a cost base in South Australia already leading the nation, how do you justify those sorts of arrangements, and not just that one but the others that Minter Ellison has highlighted?

The minister must come back with detailed responses. He has access to this sort of advice. He has to come back to the detailed provisions and responses to the issues that Minter Ellison has raised. I am the first to acknowledge that at this stage Minter is saying, ‘Hey, there are hundreds of awards and enterprise agreements; we haven’t been able to go through all of them—we’ve only gone through less than a dozen of these particular awards and raised the issues that you as legislators need to be aware of before you vote on it.’

At least with these dozen or so the minister needs to stand up and say, ‘Okay; yes this is a possibility, but we support it.’ What we are saying is, ‘If that is eventually what happens, so be it, it’s a bonus for the workers; too bad it is a cost for the employer, for the industry organisation, the NGO or whatever else it is—stuff them, too bad; Peter Malinauskas is happy, so we’re happy; you’re just going to have to lump it.’ That is fine for someone like the Hon. Mr Wortley who does what Peter Malinauskas wants him to do, but it is for each of us as members in this chamber to address seriously the legal advice Minter Ellison has raised and to demand answers from the minister and the government and, if need be, put in protections.

Otherwise, let me just say (as, I am sure, will others in the Business Coalition) to those who are going to support this, the government in particular, that it is beyond me how you justify the next judgement which comes down in the tribunal or whatever it is which says, ‘Oh, sorry, parliament passed this bill and there was an RDO. Your enterprise agreement says this, and you not only give you them the RDO, the day off, but you also have to give them another day off at your cost sometime later on, or pay them cash in lieu of that.’ The next issue which Minter’s raises is 6.3, employees on annualised salary arrangements. They state:

(a)In many workplaces, employees work ‘annualised salary arrangements’, where a higher annual salary is paid to an employee instead of paying penalty rates, overtime or other award-based entitlements.

(b)Under the Hospitality Industry (General) Award 2010, such employees who work any hours of the part-day public holiday will be entitled to a day off in lieu or a day added to their annual leave entitlement.

I interpose to say that that means for any hours of the part-day public holiday they will be entitled to a day off. The annualised salary arrangement provision in that award states:

An employee being paid according to this clause will be entitled to a minimum of eight days off per four-week cycle. If such an employee is required to work on a public holiday, they are entitled to a day off in lieu or a day added to their annual leave entitlement.

Minter’s states:

(c)In this situation, an eligible employee who was rostered until, say, 6.00pm—

and this is when it was going to be 5 o’clock, so one hour into the part-day public holiday—

on a part-day public holiday, would receive the entitlement to a whole day off in lieu or a full day of annual leave, (usually 7.6 hours). It is not necessary for an employee to work the entire public holiday or (part-day public holiday) to accrue this entitlement.

Well, how great is that? That’s terrific! You just happen to work one extra hour beyond what was the 5 o’clock start of the holiday but, under the new arrangements we are told is 7 o’clock, so you work one hour extra to 8 o’clock and then you are going to get the entitlement to a whole day off in lieu or a full day of annual leave (7.6 hours) for having to work one hour under that hospitality award arrangement. That’s terrific! No wonder Peter Malinauskas is jumping up and down with glee. Stuff the small business employers in the hospitality industry; they can pay the additional full day cost on the basis of having the additional hour worked during this part-time public holiday.

Of course, there are a number of businesses we can all think of on Christmas Eve and New Year’s Eve that do not trade through until midnight; they trade through until 8 o’clock or 9 o’clock and they do just go into that particular hour. A number of prominent groups lobbying for the government deal are groups that trade until 8 o’clock or 9 o’clock. I am reminded that the IGAs and some others trade until 8 o’clock or 9 o’clock.

Depending on the award arrangements and the enterprise agreement arrangements, Minter’s is saying that in some industries there are potential additional costs for those sort of annualised salary arrangements in those particular industries. At 6.4, Minter’s raises the issue of employees rostered on shifts commencing late at night. I will not quote it all, but part of it states:

Other provisions will mean that employees who start shifts outside the part-day public holiday will receive penalties for all the time worked if the shift continues into the part-day public holiday.

(b)As an example of such a provision, the following clause is taken from the Clerks—Private Sector Award 2010:

28.4 Hours, shift allowances, special rates, meal interval

(e) Where ordinary shift hours commence between 11.00 pm and midnight on a Sunday or public holiday, the ordinary time so worked before midnight does not entitle the shiftworker to the Sunday or public holiday rate. Provided that the ordinary time worked by a shiftworker on a shift commencing before midnight on the day preceding a Sunday or public holiday and extending into a Sunday or public holiday is regarded as ordinary time worked on such Sunday or public holiday.

There is a similar provision, though applying at a different time of day, in the Vehicle Manufacturing, Repair, Services and Retail Award 2010. I will not read out all of that particular award provision, but Minter’s conclusion is:

As stated above, employees who work on public holidays usually receive penalty rates for doing so. However, the particular timing of the part-day public holidays will lead to some employees in some industries not receiving penalties for those hours, depending on the start time of their shift.

Their conclusion earlier was that employees who start shifts outside the part-day public holiday will receive penalties for all the time worked if the shift continues into the part-day public holiday. So, how good is that going to be? You start your shift, under those particular awards, outside the public holiday but it continues into the public holiday so you will get paid at the public holiday rate for all of the hours that you work—a 250 per cent penalty rate. That is terrific, but not if you are a small business or a non-government organisation trying to provide a list of services.

Minter’s go on to say that there are 122 modern awards but they just have not had the time, obviously, to review all of the modern awards in relation to their particular provisions. They then move on to the next heading, Implication of the Part-day Public Holiday under Enterprise Agreements, and they state in 7.3:

An example of where the part-day public holidays will come into conflict with an enterprise agreement is the following clause, taken from the Coca-Cola Amatil (Aust.) Pty Ltd South Australian Manufacturing Employees Enterprise Agreement 2010-2013.

I will not read all of that clause onto the record but Minter’s conclusion under 7.4 is as follows:

For Coca-Cola Amatil (Aust.) Pty Ltd, the part-day public holidays will conflict with its enterprise agreement in the following ways:

(a)The part-day public holiday, while only seven hours in duration—

that was the original proposal—

will be treated as 12 hours of ordinary time;

(b)The part-day public holiday, while commencing at 5.00pm, will be treated as commencing at 6.00am on the day and finishing at 6.00am the following day; and

(c)The enterprise agreement has already made provision for employees to take the evening of 24 December as annual leave.

I interpose there that the clause which I did not read said that all shift workers on night shift for the night prior to Christmas Day will be required to take an annual leave day. I continue with Minter’s advice:

(c)The enterprise agreement has already made provision for employees to take the evening of 24 December as annual leave. This will come into conflict with the [National Employment Standards] requirement that employees are not required to take annual leave on a public holiday.

Then section 7.5 says:

A further example of a South Australian workplace enterprise agreement which will come into conflict with the part-day public holidays is taken from the Premium Wine Brands Pty Ltd Production (Barossa Valley) Enterprise Agreement 2010.

Again, I will not read all of the provisions of that clause. I quote Minter’s advice:

For Premium Wine Brands Pty Ltd, the part-day public holidays will conflict with its enterprise agreement in the following ways:

(a)The part-day public holiday, while commencing at 5.00pm, will be treated as commencing at 12.00am on the day and finishing 24 hours later;

(b)The enterprise agreement has already made provision for employees to take the evening of 24 December as annual leave. This will come into conflict with the [National Employment Standard] requirement that employees are not required to take annual leave on a public holiday.

The examples above are not exhaustive.

They have not gone through all of the enterprise agreements, the hundreds that obviously apply in South Australian workplaces. The next section of Minter’s advice, section 8, asks: How might the part-day public holiday affect rostering? I quote:

Under the [National Employment Standards], employees have an ability to refuse to work on public holidays if the request to work is not reasonable or if their refusal is reasonable.

In deciding whether a request or refusal is reasonable, the following matters are to be taken into account (s.114(4) of the [Fair Work] Act)—

and I will not read all 10 or so provisions of that section. Minter’s then go on to say:

This raises the question of whether an employee could reasonably refuse to work that part of their shift past 5.00pm on the day. If an employee is entitled to receive penalty rates for the work, has been given notice of the shift in advance and then refuses to work past 5.00pm on the day, these are all matters which would go towards the employee being unreasonable by refusing to work part way through a shift.

What Minter’s is doing there is raising the issue of the interplay between this bill and that requirement of the Fair Work Act and the National Employment Standards. Finally, Minter Ellison’s advice under point 10, under the heading ‘Legal exposure for employers’, states:

The additional costs provide great pressure on employers to require their usual workforce to work on the public holiday. There is a risk of employers falling foul of the NES—if an employer ‘unreasonably’ requires an employee to work on a public holiday, this will contravene the NES with potential penalties of $33,000 per breach and the risk of legal action by the affected employee.

Further on, in 10.3 and following, it states:

In Pietraszek v Transpacific…Fair Work Australia found that the applicant had been unfairly dismissed when his employer terminated his employment after he failed to attend work on Christmas day and Boxing day. The decision considered the NES public holiday provisions.

Fair Work Australia found that there was no valid reason for the termination based on the evidence given at the hearing. It did note that, based on the limited information given by the applicant to the respondent at the time he refused to work, the respondent was entitled to dismiss the applicant. It was only at the hearing that the applicant went into detail as to why he refused the request to work, including evidence of his wife’s medical condition and that he had understood that he no longer needed to work any public holidays due to roster changes.

This decision illustrates the scope for employers in managing roster arrangements around public holidays. At the time of terminating the employment, the employer did not know the employee’s personal circumstances and yet the decision to terminate was still found to be unfair.

That is lengthy legal advice from Minter Ellison, and I have put not all but the bulk of it on the public record. It is imperative, in the interests of good legislation, for the minister to respond to the detailed questions Minter Ellison has raised in relation to this because we do not want to be in a position months or years down the track where a decision is taken by an industrial court, tribunal or jurisdiction and members of parliament say, ‘We weren’t warned about that particular implication of the legislation.’

I know Mr Malinauskas’s views about these issues—too bad, they are not his concern. He is concerned about the shoppies union. He has made that known to journalists who have put some of these issues to him. He is there to represent the shoppies union and his members; that is fair enough, that is his responsibility, but it is not an excuse that the Premier or the minister in this chamber can use. Mr Malinauskas can say, ‘Stuff the rest of the world, the employers, the NGOs and anybody else.’ That is his entitlement. That is the arrogance we have become used to from the shoppies union and those who control this government. The minister, for all his feeble inadequacies, needs to take legal advice and stand up in this chamber and read that advice to the chamber in relation to the issues that Minter’s and the Business Coalition have raised.

This chamber needs to vote on the bill and its amendments with the full knowledge of what it is voting for. I am the first to acknowledge, and I think Minter’s would as well, that with some of the issues they have raised there will be valid and quite possibly other legal interpretations of the legislation. Ultimately, it will be determined by tribunals, courts or others. Given that the issues have been raised, we need to hear the legal advice and the position from the government and the minister in relation to each and every one of those concerns Minter Ellison has raised in relation to the interplay between the awards, the modern awards, the enterprise agreements, the Fair Work Act, the National Employment Standards and this bill and its implications not only for workers but also for businesses and non-government organisations in South Australia.

Coming back to the second reading, we seek from the minister a breakdown of the cost that has been estimated in the budget of $5 million for this deal in terms of public sector costs. I note that this was prior to the recent potential extension of costs to cover some other non-government organisations. Will the minister be able to bring back to the chamber and have tabled a breakdown of the $5 million costs: as to how it has been calculated, and what are the individual costs for each of the departments? My understanding is that each department and Treasury have been asked to put together this $5 million cost which went into the forward estimates, so there is clearly a breakdown that Treasury has in terms of the costs for each of the agencies, and we seek information on that.

We seek also information on the proposed deal with non-government organisations. As I said earlier, for those members who do have the power in relation to this issue, it is my strong view that we should get the precise details of the deal that is going to be offered to the non-government organisations before the bill is passed. What we are seeking from the government is: what is the nature of that proposed additional cost, and what is the cost to the state budget from the proposed extension of the deal and, as I highlighted earlier, which particular groups are being covered by the government’s further negotiated offer in relation to them?

In relation to four particular groups of workers in the public sector, namely, police, nurses, fire officers and medical officers (doctors) within the public sector, I ask a series of questions. First, what are the proposed additional costs for each of those groups, that is, police, nurses, fire officers and doctors? Obviously, they will all be a component part of the $5 million estimated cost. In particular, for any one of those categories of workers, if they are rostered on a shift on Christmas Eve or New Year’s Eve from 2pm on that day to 10pm (that is, they will be working from 2 o’clock until 7 o’clock), the 7 o’clock to 10 o’clock part of the shift will be in the part-time public holiday component.

For each of those four categories of workers, under the current either enterprise agreement or award arrangements for police, nurses, fire officers and doctors or medical officers, what will be the payment arrangements for those officers during that particular shift? That is, are they paid at ordinary rates from 2 o’clock until 7 o’clock and then paid from 7 until 10 o’clock at the 250 per cent penalty rate, or is there some different arrangement under the current agreements with those four groups of public sector employees?

With that, I indicate the Liberal Party’s support for the second reading of the bill. Our position remains the same as we indicated at the outset. We will be trenchantly opposing, and moving amendments to remove, the provisions in relation to part-time public holidays. In relation to the amendments of the Hon. Mr Brokenshire, which I have not been able to address, our position is that we will not be ready to debate those until next week, after we have had the opportunity to receive advice from the stakeholders we consulted last evening in relation to the impact of those amendments.

The Hon. K.L. VINCENT (16:59): Today, I speak in favour of the amended shop trading and holidays bill. By amended, I mean the recently announced government change that will see the public holidays commence at 7pm rather than 5pm. This bill seeks to halt the never-ending debates surrounding shop trading hours and public holidays in this state. The discussion on this has been going on since before I was born (I am sorry to put it in that harsh context), and we hope that this clarifies the situation for all sectors and settles the matter once and for all.

The bill will see the retail sector open in the city on most public holidays and it will also create public holidays after 7pm on Christmas Eve and New Year’s Eve. As all crossbenchers would have found since the opposition declared its opposing intent, lobbying and correspondence surrounding this bill has been intense from both sides of the debate. There have been some in the business community predicting that the sky will fall in following the introduction of part-day public holidays; however, I do not think that an extra 12 hours a year of public holiday will see the collapse of business. We already have one less public holiday than New South Wales and the Australian Capital Territory, and I do not believe that the extra evening public holidays will cause the collapse of businesses.

I have had many, many letters and emails on this issue, but the largest quantity of correspondence has come from retail workers who stand to benefit from the additional public holidays. My office has received about 5,000 postcards to date, campaigning for the creation of these extra public holidays. Many restaurants and pubs already pay extra wages, or offer a non-cash incentive, to entice people to work on these two special evenings. All this legislation does is enshrine the extra pay for workers in law by creating the public holidays.

Many restaurants and venues already charge extra to consumers for special events on these evenings to cover these extra costs. If businesses choose to close at this time of year, then that will be their prerogative. If I go out to a restaurant, an evening show, or to the pub on Christmas Eve or New Year’s Eve, I expect that I should pay extra to have someone cook food for me, perform for me or serve drinks to me. If I cannot afford the extra cost, then I can stay at home with my family and friends.

I do believe that the already low-paid workers in these sectors deserve to receive penalty rates on these two evenings. In many eastern European cultures, Christmas Eve in fact has more cultural significance than Christmas Day itself; codifying this in legislation recognises this fact. New Year’s Eve is a much bigger party event than New Year’s Day and also making it a public holiday acknowledges this.

The existence of these new public holidays did create some other issues. I was very concerned when I heard that it may reduce or remove the services provided to people with disability and those in aged care. As with ambos, salaried doctors, nurses and police officers, I believe that disability support workers and aged-care workers deserve to be paid extra on public holidays for the very important work that they do in servicing the community.

When I learned that these additional public holidays could jeopardise the care and support the disability and aged-care sectors could provide clients, I approached the Premier with my concerns. I would not want people to be left without care at their bedtime shift, or overnight personal care, because of this legislation.

I appreciate the consideration the Premier has given me on this and, given the state controls funding for disability, he was able to commit to all government-funded services being extended to ensure no services are lost on either Christmas or New Year’s Eve. My support for this bill was, of course, conditional on this reassurance being given, and I am grateful that the Premier did this—as he properly should.

Aged care is not a state-funded sector, as we all know; it is almost entirely federally funded. I was approached by this sector to consider removing aged care from the provisions that would see workers paid penalty rates; however, I do not believe this could ever be workable—to have just one part of the health and caring sector excluded—as workers would surely walk off the job, and excluding one group could lead to others seeking exemptions. It is either a public holiday for all, or it is not.

I do appreciate the significant cost pressure on aged care, particularly those in the not-for-profit sector, and I am grateful for the interactions I have had, particularly with Alan Graham and Paul Carberry, on this matter. Given the arrangements for funding of this sector are currently being debated with the federal government, I think those within the South Australian sector need to explain the extra costs they will bear as a consequence and ensure they broker a better deal for their sector with the government.

I also think the Premier needs to continue investigating the costs that he can alleviate from a state perspective, whether this be council rates, water costs, or something similar. Given that aged care is unintended collateral damage, if you like, in this bill, I think it is the Premier’s duty to continue to consider this. To be realistic, an extra 12 hours of public holiday in the context of 365 days, or 8,760 hours of labour costs, will not break this sector. I think the benefit of recognising the undervalued endeavours of aged care workers outweighs the cost that sector will bear.

I, as much as anyone, am concerned about Adelaide’s reputation as a vibrant, modern city that can cater for the needs of tourists, residents and South Australians in general. I want Adelaide’s heart to be a place that people with disabilities, cyclists, tourists, visitors, students, the elderly, families, children and young people can all access on public holidays and have a role to play in making our city a place that people want to be in. Whether that be shopping in the CBD, having coffee in Rundle Street, visiting free attractions like the art gallery or the museum, studying at the library, wheeling down Rundle Mall to check out the buskers or meeting at the mall’s balls, all of us have a valuable role to play in making the city centre somewhere that we want to be.

I do not want Adelaide to be seen as a mothball city, where people need to turn out the lights when everyone leaves at Easter or ahead of a long weekend. I look forward to being able to enjoy our city centre on public holidays, and if I do go out on Christmas and New Year’s Eve, as I already stated, I will happily pay more in the knowledge that the extra dollars will reward those sacrificing special time to serve me. I am also relieved that all of this can be achieved whilst ensuring that the most vulnerable in our community do not lose any essential services which are essential to their human rights provision. I commend this bill to the chamber.

The Hon. R.L. BROKENSHIRE (17:07): This is a bill that I will be speaking on for some time. Sometimes you can speak for a few minutes and get your point across, other times you need to spend quite a bit of time trying to articulate the reasons why you are supporting, or not supporting, a bill. That is the democratic process of this parliament.

Family First supports the second reading, and in fact made a commitment to the government that if there was a problem with respect to getting this bill underway today with debate in the Legislative Council we would certainly vote with the government on that. Clearly, that was not needed, everyone has agreed to start debating this bill today.

I would also support the initiative of addressing the public holiday scenarios over Easter as a matter of urgency for the government. I see no reason at all why the government could not be putting in place (under existing law) arrangements for this Easter, just as it has for Easters long gone when it had the opportunity for making those decisions. The issue of putting pressure on members of parliament to get legislation through prior to Easter so they can make a decision on Easter Sunday, frankly, is not a valid argument, in my opinion.

First, I want to talk about parliament and process. In my 17th year in this place, like all members, I am passionate about the fact that at least until now we had a situation where the parliament had an opportunity of debating, through both houses, including being able to debate and foreshadow amendments to a bill of the government. Unfortunately, on this occasion the democratic processes of the parliament have been undermined. I put on the public record that that is a very serious issue.

I believe that when governments start to do deals in back rooms and do not allow full and open transparency and opportunity through the parliament, to the point where we have an announcement before the bill is even debated in this council, that that is a sad day for the democracy of this parliament and I, for one, would argue undermines the Westminster system. As a legislator, I will continue to try to ensure that we do have due process and that we do have the intent of the Westminster system being carried out in this chamber.

With respect to the deal, I have known Mr Malinauskas for some time, and I respect the man. He has certainly done a very good job in getting an outcome for his workers, and I am sure that those workers will congratulate him for that. I am sure that Mr Malinauskas will go a very long way in his career. As a young man, he has a lot to offer. I think he has more capacity and gets better outcomes than most of the ministers in the government. I am certain that he will end up in parliament at some time in the future, probably not in this council, because things such as industrial relations and the like are better in the commonwealth today than they are in this council and in this parliament, where we have an announce and defend approach when dealing with industrial relations.

I want to come back to the issue of announce and defend. There are two key issues that we need to split up. One is that the Premier has said that, as part of his different track and direction to the previous premier, he wants to focus on making Adelaide a vibrant city. In fact, even yesterday, further announcements were made on initiatives to try to fast track development in city.

The Hon. G.A. Kandelaars: And shop trading hours will.

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): Interjections are out of order, Hon. Mr Kandelaars.

The Hon. R.L. BROKENSHIRE: Having talked to a lot of colleagues in both houses, the Premier did not have a problem in getting that through. I can say that the absolute majority of members, if not all, supported the deregulation of the CBD. If the Premier had gone through a democratic process, possibly initially with a ministerial statement or even, in fact, by introducing legislation to deregulate the CBD and the surrounding precincts—as long as it did not include, from Family First’s point of view, the half ANZAC Day arrangement with the retail sector and certainly not Christmas Day and Good Friday and, I would argue, Easter Sunday—we would have actually signed off straight away and supported the Premier.

It makes good sense to deregulate the CBD, particularly when another deal is putting this state further into debt, namely, the Adelaide Oval redevelopment, a deal where the AFL CEO on that occasion allegedly got $100,000 for forcing the government into that, and we, the taxpayers, have had to pick up a tab of over half a billion dollars that we do not have. We have to make sure that we see some capitalisation of those opportunities in the CBD. So, I want to actually put to bed the myth that there had to be an interlocking between the CBD and the deregulation of the CBD and the two half public holidays.

I will put this on the public record, because every now and again I think it is fair to put things that you do not agree with on the public record. However, before I do that, I want to congratulate not only Mr Malinauskas for what he has got for his members but also all the unions—United Voice—that got together. If I were running one of those union organisations and I saw an opportunity to get something for workers through the back door, I would do the same thing. So, I do not have any problems at all with anything that the unions have done.

In fact, our door will certainly be open to all those unions whenever we can help them. There are issues on which we are working with them at the moment, and I am sure that there will be lots of other issues in the future. I know of some already coming up, where the union will need help to defend itself against the government, and Family First will be there for the union. However, on principle, we cannot support the way this arrangement has occurred.

I actually have an oral version of the transcript, where it actually slipped out in a debate that the whole purpose of the interlocking of this—and I will get to that in a moment—the purpose of giving the two half-day public holidays was—and I underline what I am about to say—a mechanism for a union being able to get a deal for its workers outside of the Industrial Relations Commission, general award schemes, etc. I know that the unions have worked very hard for a long period of time against successive governments to try to get a fair and reasonable industrial relations structure in South Australia and, more recently, in Australia.

I also know that governments have worked hard to work through enterprise bargaining agreements, and on many occasions I was involved in them myself. They are tough, hard and exhaustive. In fact, on one occasion I recall that both the union head and the head of the government who was engaged on behalf of my portfolios to negotiate an enterprise agreement were so exhausted that, as soon as it was signed off, they both went on leave. It is pretty intense stuff, but they got good democratic outcomes for the workers and for the government, and they did it through due process. That is the problem we have with the way this has been handled.

Whilst it has been put to me, ‘Well, you know, Robert, there’s a deal here, there’s a deal, you got to support the deal,’ well, I am sorry, sir: you do not have to support deals done outside this chamber, outside this parliament, particularly when those deals are not through full and proper process and consultation. That is the truth of the matter. No-one in this house or outside this house can stand up and say that there has been proper, open consultation and consideration of the impact of this deal about which we, effectively, were told, ‘Well, it’s been done, Robert, the deal’s been done—back it!’ ‘My way or the highway’ was basically the pressure put on us.

I am sorry, sir, I do not work for the government: I work for the community of South Australia. I work for the whole of the South Australian community because the Legislative Council’s boundaries, as we all know, are from border to border—north, south, east and west. This is where the ramifications and unintended consequences are about to come in. We have talked often about unintended consequences when legislation comes up, and that is what we are here for: to deliberate and amend unintended consequences. I foreshadow that the unintended consequences of what we are debating here this afternoon and tonight are not known but will be horrendous.

I want to say and leave it at this (but want to put on the public record) that it was said to me that Family First will put families last by not supporting these two half public holidays. I do not accept that at all. In fact, had we had an opportunity to actually debate this properly, I believe Family First (and probably quite a few of our other colleagues in this house) would have had amendments that could have addressed the issue because the bottom line is that these workers in the retail sector do not actually want to work on Christmas Eve, on New Year’s Eve or, I might add, on the eve of Good Friday, Maundy Thursday, in particular because sometimes that is the only chance they have to get a four-day break.

When you drill into it, you find an interesting scenario and someone is making a lot of money out of this. This is the second time lately when computers have been almost in meltdown because there is a structure now in place where through the databases people are given a prototype of what is the debate and the argument and they just hammer that through into your computer. I took notice and looked at those, and I took notice of the postcards as well. I also took notice of the people who did not opt for the postcards or the prototype email but who actually put pen to paper or sent in their own emails.

When you actually divide up all that, for most of the people the key penalty rates and additional pay on this occasion were secondary to the fact that they actually do not want to work. I do not blame them for that at all. If I was in a situation working in retail, I would not want to work on those evenings either. We could have fixed that because, in giving the business sector what it wanted with a vibrant CBD, we could have said that there is a caveat, a condition, that is, that on those three nights you will close up at 7 o’clock. Shut up the retail sector.

I am not talking about the entertainment sector and other sectors that have been caught up in this. Why could we not have an amendment to shut the shops at 7 o’clock on Christmas Eve, New Year’s Eve and Good Friday eve? That would accommodate what most people want. They want to be able to go home and prepare a meal and spend some family time, or socialise a little bit with their friends or perhaps go to church on Christmas Eve, or cook the meal so that they can go to church or have family over—whatever they want—on Christmas morning.

We could have talked about the merits of that, but we have not even had a chance to do that in this chamber, because a deal was done. If parliament is going to start rubberstamping deals done in back rooms then, in my personal opinion, we are on a slippery slope to a very bad legislative framework in the future. That is why we cannot support the situation as it stands.

Also, we are putting families first, and we will always put families first. However, there are families that own small businesses that will not be able to pay for this. There will be implications for families in the country in getting to Adelaide and families in Adelaide that want to get to the country for Christmas and there will be implications and impacts that have not even been thought about properly. I also put it that, from the point of putting families first, the first thing people want and need is a job for themselves and for their children.

We live in most difficult times at the moment. I do not want to talk this state down, and I have come in here, as I am sure all members have, to make this state better but the reality is that, at the moment, this state is in diabolical trouble. There is $8 million to $9 billion worth of core debt, ballooning out unfunded recurrent deficit issues, and a business sector that, by and large, is bleeding. At the moment I find that very few businesses have much of a profit margin.

In retail that is especially so. Just in the last week or two the facts show that across Australia it is estimated that 100,000 retail jobs are at risk. If there are 100,000 retail jobs at risk—and I would assume that, on average based on our 8 per cent, 8 per cent of those are at risk in South Australia, and that worries me immensely—why would we put an impost on small business now that is only going to put those jobs even more at risk?

On top of that, we have coming at us like a juggernaut, a situation with online purchasing that we have not even started to think about yet. Young people in particular are becoming very quickly initiated to online shopping. We have a lot of threats and a lot of risk, particularly in retail at the moment, and more so in retail than anywhere else. On top of that, we have a duopoly (namely, Coles and Woolworths) employing a lot of people, but they are only interested in two things: paying their executives ridiculous amounts of money and returning great dividends to shareholders.

I do not believe they have their heart in the general retail workforce. They are already starting to explore IT and how they can downsize jobs in the retail sector through IT. Just the other day I saw a program about this. It is all there now: people will not even have to go into shops. They will be able to go to certain coffee shops or things like that and have it all there. They can use their electronic card to order there and it will be delivered.

The only job opportunities for growth there that I see are for TOLL and other express couriers. On top of that, we can already see in those shops where people use their cards to pay the money and move past a lot of cash registers and the people operating them. We live in a nation and in particular in a state at the moment where jobs are an issue that I think we should be very careful about protecting and ensuring that we can at least protect what we have now.

Of course, I have heard the line—even from the most senior members of government—that there are two things: No. 1, that business can absorb the cost, is one throwaway line that government has been putting forward; and No. 2 is that business can add on a cover charge just as they do in the hotel and entertainment industries on those nights.

That might be all right for those executive members of government who said that and who are on $200,000 or more a year, but, do you know what, Mr Acting President? Most South Australians would not earn $200,000 in four years. The average pay is under that, and they would work four years for that. They actually save to go out on occasions around Christmas and New Year, and they will not be able to afford these built-in cover charge costs; maybe some in Adelaide will still go, but we do not govern just around Adelaide, surely.

I want to ask the minister to explain, and I will put it on notice for him so he has plenty of time to consult his advisers, why this deal is interlocked. No-one has been able to explain—in fact, they have dodged it. I have read pretty much all the transcripts I could get hold of and, when the specific questions have been put to the executive of this government, ‘Why are these two deals interlocked?’ do you know what the answer is? There is no answer. Now, as we come into the committee stage, I look toward forward to the Minister for Industrial Relations articulating why these two arrangements are interlocked, because I do not think he can.

I have been a witness to leadership spills in the past myself. They are never nice—in fact, they rip your gut apart when they happen. Some people win and some people lose but, in the couple of leadership spills I have seen, the arrangements or the deals have always been about, ‘You go and crunch those numbers for me,’ or, ‘You go out in the media, take them head on, coffee the media, unnerve the Premier, and we will take notice of that down the track.’ The reward for that has been positions in the parliament or positions in the party.

They are things that are out of the control of the parliament. They are things that are done between the factions and people who are prepared to help with the spill. On this occasion, I can only say that this is reward for effort that has been done to ensure a smooth transition in the change of premier. That is all I can assume because I have no evidence to the contrary. However, we may get that from the Hon. Mr Wortley when he starts to answer our questions on clause 1 in committee.

I will use my own industry as an example because this is just a classic example of unintended consequences. The dairy industry is an industry that has a perishable product and people work 24/7. It is not an industry that you can close down. Cows have to be milked at least twice a day. There is not a lot of profit in the dairy industry when you have Coles and Woolworths pushing price down through the supply chain. We do not have time to go into that tonight—you have heard me talk about it before—but all the facts are there. From the paddock to the plate, you have Coles and Woolworths pushing back to the farm gate, and you also have the high dollar.

What this implicates (and I am sure there was no scoping done on this) is all these other sectors. With the dairy industry, those workers who are not on a share or permanent casual, will be subjected to public holiday rates when they are working now, and a lot of those workers will be still working when this new arrangement comes through. But, even if they are not working, there is a tanker driver who comes around and picks up the milk, and 2½ times the hourly rate will be required to pay that tanker driver. When the milk gets to the factory, it has to be processed, so there will be people there paid at 2½ times. And it goes on. That is just one industry sector, and I would suggest that there are a lot more that will be impacted; and I can tell you, sir, that the margins are not there to absorb this.

I do not know, sir, if you ever played the game when you were a kid and playing with someone else where you had a camel with two saddlebags with very fine little holes. It was called Straws. You would push those straws through and, at some stage, no matter how clever you were, the last straw broke the camel’s back. This government is being very flippant when it says, ‘Don’t exaggerate, Robert, this won’t break the camel’s back.’ Well, sir, it is another nail in the coffin and I suggest to you that there are quite a lot of camels in business, if I can use that analogy, that are close to breaking their backs. Look at how hard it is to get money for product that people have provided within the normal trading terms and that will give you a pretty good litmus test on how tight business is today.

The Hon. G.A. Kandelaars: So Business SA has got it all wrong?

The Hon. R.L. BROKENSHIRE: There is a great intervention from the Hon. Gerry Kandelaars, a man who I respect—one of the brighter new members in this place, on the government side.

The Hon. R.I. Lucas: So it’s a very low threshold you are working on!

The Hon. R.L. BROKENSHIRE: He is one of the brighter ones. What the Hon. Gerry Kandelaars said was, ‘So Business SA has got it all wrong?’ I think they have. I am sure they have. Fair enough to the CEO, Mr Vaughan, on this occasion: he had a passion for wanting to get vibrancy into the CBD. As I have said, that could have happened without what is now occurring.

I think Business SA has got it wrong a fair bit in the last 10 or 15 years, because I have not seen them represent the core people who they should represent for a very long time. In fact, I have seen Business SA more often than not in bed with the Labor government, which is unusual because I would have thought that they were diametrically opposed.

Of course you see the unions working with the Labor government—that is the way it has always been—but I do not think Business SA has done businesses much of a favour for a very long time, generally speaking, in this state. I certainly have not seen the benefits that they have supposedly been delivering to their members. I assume one thing that will happen as a result of this is that there will be a major shake-up of Business SA, or possibly Business SA may not be here anymore; maybe there will be a new structure. Certainly there are some issues that need to be addressed when it comes to representing business.

A few years ago the Fair Work (Commonwealth Powers) Bill was brought into the parliament. It was debated in this house on Tuesday 17 November 2009. The Fair Work (Commonwealth Powers) Bill was brought into this house because the government wanted to push industrial relations across to Fair Work Australia and the commonwealth; send it to Canberra. They wanted to do that. It dared not actually interfere with the public sector because it had problems with that, so the then premier said, ‘Okay, we will leave the Public Service as the responsibility of the South Australian Industrial Relations Commission but we will push all of the private sector across to the Commonwealth.’

Some of us in this house did not agree with that. I note when the vote was taken it was similar to what we are going to see with this bill. With two paired off it was 9:10 and it did get just passed to go to Canberra. The reason that some of us were opposed to it was because we thought we were better positioned to look after workers if they actually capitalised on the knowledge of the local industrial relations commissioners and the knowledge of the South Australian parliament. Clearly, the intent of going to Canberra was because the private sector thought that they could do better for their workers.

So far on this issue with the retail sector it appears that they have not been able to get what they want so they have seen this as a back door way of getting something for their workers. I do not believe that the parliament is an industrial relations commission, particularly when it comes to the private sector where we have no legislation to deliberate for the private sector; it is all in Canberra.

I want to place on the public record that the issues the public sector brought up were things that I thought we could and needed to address, and we were going to move amendments, particularly because the government had miraculously found $5 million. They must have plenty of lazy piles of $5 million lying around because they found this one pretty quick.

We would have moved amendments to honour our obligations as being responsible for the public sector industrial relations and supported them, particularly on things like cross-shifts where I was not really aware, even when I was minister, of what was happening for a long time with respect to New Year’s Eve. On a cross-shift, the police organised it, allegedly, so that the rank and file of police worked the majority, by half an hour, of their shift before the public holiday, and therefore SAPOL did not have to pay those workers a penalty rate. That sort of thing needed to be addressed.

The Hon. R.P. Wortley: How much longer have you got to go?

The Hon. R.L. BROKENSHIRE: Quite a while, actually.

The Hon. R.P. Wortley: I’m just worried about blindness. That’s all I’m worried about.

The Hon. R.L. BROKENSHIRE: I beg your pardon?

The Hon. R.P. Wortley interjecting:

The Hon. R.L. BROKENSHIRE: I will go blind? Would you like to say why, minister? Would you like to say why I would go blind because I am democratically debating—

The Hon. R.P. Wortley interjecting:

The Hon. R.L. BROKENSHIRE: Beg your pardon, minister?

The Hon. R.P. Wortley: It is a nonsense.

The Hon. R.L. BROKENSHIRE: A nonsense?

The Hon. R.P. Wortley: I’m worried about you, that’s all.

The PRESIDENT: Order!

The Hon. R.L. BROKENSHIRE: You worry about yourself, minister, because you have a lot of things to worry about, believe you me. I would be getting my head around the committee stage for a start.

The PRESIDENT: Order! We might all go back to worrying about the workers.

The Hon. R.L. BROKENSHIRE: Thank you, Mr President. We have seen other arrangements occur where, to get a member into Port Adelaide, on the last week, a preference deal occurred, and something that was apparently a big government commitment with respect to industrial development on an island that is part of that electorate was, all of a sudden, no longer important economically. I put that on the public record, too, because I think it is time that a bit of a picture was painted of this government and how it is more prepared to do deals than it is to show good governance as a government.

On the issue of announce and defend, I thought we were going to be looking at consult and decide. I put it to this house that the legislation we are debating now is a classic announce and defend. I read on the weekend, ‘No, no. It’s not an announce and defend. It’s actually a debate and decide.’ Where is the debate and decide? We are having a debate here now, but it is already decided. We certainly do not have what I thought we were going to have, that is, ‘consult and decide’. Had the government consulted widely and then decided and come into this house, we probably would have been able to support this differently from the way in which we are going to be able to support it now.

We have foreshadowed a number of amendments. I am not going to go into great detail in relation to those amendments now because I will have time to talk to them when we get to the committee stage. One of the words the government has used many times is ‘forever’. The government has said that, once this goes through, forever that will be it. ‘There will be no more deregulation. This is it. Take my word for it: this is forever. This fixes it forever.’ That is the exact wording, I recall, of the government’s argument on this.

It is interesting that only about two years ago, when the Hon. Paul Caica was the minister for industrial relations and there was some tweaking of industrial relations with respect to deregulation, Mr Caica said that the balance was right, that there was no need to go any further. Yet now, not that long after that, we have more issues on deregulation.

When we had a look at the bill, we saw that, if the government wanted to have this ‘forever’, it could have removed a couple of clauses from this bill that would have then meant that any further deregulation at all would have to come before the parliament. How can you trust the government when it says that forever there will be no further deregulation when it has left two clauses in the bill that will allow indefinitely, I might add (and I will talk more about that during the committee stage), further deregulation at the minister’s discretion?

So, we will be moving amendments because one thing I do know is that the SDA will be pleased to see enshrined in law the ‘forever’ so that there is no deregulation unless it comes through both houses. We know the Liberals have been open and honest on their policy but, by having this enshrined in this house, if the Liberals win government they will actually have to move amendments through this house, so it gives us a chance for a democratic process.

There are also other amendments, including one relating to the issue of carers and Adelaide Cup Day. I have moved an amendment that states we should consider relocating Adelaide Cup Day back to where it was. I note with interest that Michael Wright, former minister for racing and a former senior minister in this government, on the weekend came out publicly and said that we should be moving the Adelaide Cup Day back to May.

Given that the government actually has what is now the Queen’s Birthday and Volunteers Day public holiday on the June long weekend, I think it would be fantastic to consider moving the public holiday from Adelaide Cup Day (where it was shifted into ‘mad March’) back into May. The heads of SAJC and Thoroughbred Racing have flagged that they would like to hold the Adelaide Cup on the second Monday in May.

The second Sunday in May happens to be Mother’s Day—no-one cares for anyone any more than a mother, in my opinion—and there are, of course, other carers to acknowledge. We could have a specific focus on that weekend. Economically, it would be good; it would free up ‘mad March’ a little and spread the economic opportunity.

We also have some amendments regarding the right to refuse to work, which I will talk about in more detail during the committee stage. As I said before, most of the retail workers expressed concerns about being forced to work, and those amendments will hopefully come some way to assist with those concerns.

Just on political correctness, I believe that Christmas Day is called ‘Christmas Day’, not ‘the 25th of December’ and that ANZAC Day is called ‘ANZAC Day’, not ‘the 25th of April’, and I will be moving an amendment to be considered by colleagues in this chamber that we actually refer to these days by their significant names and not as dates.

I just want to finish with a few last points, some of which have already been raised. There is potential impact on employers and employees irrespective of the hours they may work on Christmas Eve and New Year’s Eve. One of the things I asked the minister to explain to the house refers to TOIL, where people take time off in lieu on a public holiday; certainly the police, as I understand it, are entitled to two days for that.

I would like the minister to check and tell us what the situation would be if people decide to take TOIL. The advice given to us all by the opposition, as received from Minter Ellison—I will not go through it all, because the Hon. Rob Lucas has already done so—was that, clearly depending on your awards and agreements, there are huge unintended consequences in this area.

I want to put on the record a few other things, but I first want to read a letter I got from Senator Chris Evans. I wrote to Senator Chris Evans in November 2010 regarding public holiday arrangements for Christmas Day, and the minister replied:

The current arrangements in relation to public holidays reflect long standing practices. Public holidays form part of the National Employment Standards (NES), which provide employees in the national workplace relations system with an entitlement to be absent from work (with pay) for a range of nationally significant public holidays. The NES, however, leave the declaration of public to state and territory governments.

Similarly, consistent with long standing practice, the NES leave the payment of penalty rates for working on public holidays, and indeed for weekend work more generally, to be determined by modern awards and enterprise agreements. This follows the approach set by the Australian Industrial Relations Commission in the Public Holidays Test Case of 2005. A modern award or enterprise agreement may also include provisions for an employer and employee to agree to substitute a day or part-day for the public holiday.

The point I put that into the debate on is that there are processes hard fought for and pushed across from this place by this government to the federal arena. I think it is pretty clear there that Senator Chris Evans articulates in one page the processes when it comes to how you go about benefits in awards.

In the country, there are some unintended consequences for what has occurred today. Having been in Mount Gambier recently, which traditionally is a pretty vibrant city, I went to do a bit of doorknocking in the main street. In the few months since I was last down there, I noted that, unfortunately, there were a number of shops shut. By the look of it, one of those had only recently opened and was already closed—I had been in there and bought stuff the time before.

When you pick up The Murray Pioneer of Friday 23 March, the headline is, ‘Adelaide CBD deal another headache for Riverland businesses. Public holiday pain’. The article talks about the imposts that are going to be a real struggle for businesses in that district.

The Hon. J.S.L. Dawkins interjecting:

The Hon. R.L. BROKENSHIRE: It does. It states, ‘Riverland MP Tim Whetstone criticised those behind the decision’, and he goes on to name them, because he says ‘there was “no consultation with regions”.’ That is part of my point: there was no consultation with the regions. Rural and regional South Australia will have bigger imposts on this than probably any other sector of the community when it comes to business. The article goes on to state:

‘It is another impost on small business owners (and) just makes it tougher for people to keep operating.’…’It makes it less enticing for someone to enter small business.’ Berri District Business Association president and secretary Barry Phillips said the need to pay penalty rates would force some traders to close on the new part-public holidays.

That is my point. In walking down the main street of Mount Gambier and talking to one business owner, we discussed what the impact of this would be. He started to tell me about what online shopping was already doing to his business. He told me that he could not work out why one product that he was selling, and selling quite well, all of a sudden was not selling. The wholesaler came in to see him and said, ‘What’s going on? You’re not getting the stock through.’ He did some research and discovered that the product he was selling was cheaper online, direct from the USA, than the wholesaler could wholesale it to him for his shop.

So, those are the sorts of impacts we are already seeing on small businesses. I understand that to try to overcome this (legally) some small businesses are buying parcels (to the threshold) online, with no GST, and bringing them back into Australia to their shops just to try to survive. I said to him, ‘What are you going to do on Christmas Eve?’

For those of you who do not live in the country, Christmas Eve coincides with what, for most, is the pretty busy harvest period. Families find it difficult to shop or even get together in the lead-up to Christmas Eve. So, often in a place like Mount Gambier, and many other country towns, the family will come into that town on Christmas Eve, knowing, up until now, that they could buy some presents, have a meal at a reasonable price and do some socialising.

I said to him, ‘What are you going to be doing?’ He said to me, ‘When I have to pay two and half times the hourly rate, Robert, I will close. I will close at 5 o’clock. It’s not worth it to actually open after 5.’ If those retail workers were like many and wanted to go home, then that would be fine because it would not be an impost on them, but if they did want to work they will not be working at all that night.

In answer to the government saying that it could pass the cost on, there are little country towns with little taverns where traditionally a lot of people (especially our young people) go to celebrate Christmas Eve and have a meal with their friends before they have their family day. They will not be able to pay an additional cover charge. I can tell you that for a fact because I know those young people. They do not have that much spare money to pay another $10  for their meal. You can say, ‘Well, that’s flippant. Forget it. That’s just an excuse’. It is not. It is the truth and it is reality. Those smaller places will not be able to pay two and a half times.

The first argument was that it was only 14 hours but, like I said, one more straw can break the camel’s back. Sunday closure is a reality, retailers say. We have seen retailers now coming out publicly saying that this could have ramifications for other retail opportunities. We also saw a good article from Lainie Anderson, who highlighted some of the anomalies that I raised earlier. In amongst the emails that we received, there were some from businesses. One email from a small business in the Adelaide Hills states:

The new public holidays will not help our family business whatsoever. We will not be able to afford to open our restaurant due to hefty pay increases. There are plenty of other times for these people to spend time with families. If people work in these industries, they are aware that those times of the year are the busiest.

Yes, that is true but, as I said, an option for those people who did not want to work was to actually give them a choice to leave work at 7pm.

Retirement villages and aged-care facilities are other examples of unintended consequences. I received letters and information from some of those aged-care facilities, and they are struggling. In fact, they are struggling to the point where they now acknowledge that workers need more base rate salary, and I, for one, can see why, because when you look at their schedules, they are fairly low-paid workers.

However, they are trying to put a case to the commonwealth government for $3 billion, and they are doing it through due process and they do not have any slack to pick up. One of them wrote to me and said that their WorkCover costs alone had gone from $100,000 to $200,000 a year. I can tell you that a worker on an average wage will now cost an employer $370 a month for WorkCover alone.

When you see all these other costs and charges, we can see that we now actually live in the highest taxed and highest charged state in Australia. It is not hard to see how decisions that are not worked through properly can be very damaging to jobs, and to families being able to meet their commitments if they do not have jobs.

I will ask the minister a couple of questions on notice. Can the minister assure the council that, when we debate clause 1, superannuation, leave loading and WorkCover, which are all additional costs, will be considered, bearing in mind that the commonwealth government has just passed legislation whereby, over the next few years, an employer will have to pay not 9 per cent as it is now but up to 12 per cent?

Factoring in the forward estimates, I want to know whether the government is actually going to include in this $5 million not only the base rate for all workers in the public sector but also the topping up of all the other add-on costs. Can the minister assure this council of that, because I would not want to see a situation where we have fewer police on the beat. We already see a situation where the police budget faces $34 million in cuts in the forward years. This government, with sleight of hand, gives a rough ballpark figure of $5 million, but we actually then discover that that does not include WorkCover, any leave loading or the potential impact on police.

The police already rightly have six weeks’ annual leave. If this actually gives them six weeks and two days or possibly six weeks and four days—I am not sure, but I want an explanation from the minister—is the Police Commissioner going to get all of that in his budget? So, I am not talking nonsense; I am talking about issues that are very relevant to this debate, and I expect not a nonsense argument from you for a change, minister; I expect to have facts tabled in this house for all to see, because no way can we pass legislation if the Police Commissioner is then going to hit police harder. I do not want to see that happen.

I also question the government’s decision with respect to aged care. I congratulate Kelly Vincent on getting some top-up for the carers; they are important people and they actually do not get a lot of money either. As well as people with a disability the other most vulnerable people who should be cared for and supported are the aged, yet we have not heard anything from the government about the aged. Will the minister explain in clause 1 why there was no consideration by this government to assist with the deficit that will be there for the workers in aged care on clause 1?

Will the minister further assure this house that, if indeed there is a net cost increase that will not be supported by the government to the aged care sector, people who have paid their taxes all their life and often are in there on a pension where most of the pension is already gone—just a little bit of spending money and the rest goes and families still come in to top up the care support—there will not be an increase in the ratio of aged care residents to carers, as these things have an impact as well?

There are other questions I will ask the minister in committee as I move amendments. I know this has taken a little while to explain. As I said in summarising, there is no doubt that issues like cross-shift needed to be addressed. There is no doubt that every worker in this state needs more money. In our own industry, at 3.30 on Christmas morning there will be hundreds and hundreds of people in agriculture up trying to feed their animals, milk their cows and do all that work, and they do not have an opportunity either for any increase. In fact, ABARE shows that farm gate prices for many commodities will go backwards.

There are a lot of issues where people have to work outside the normal hours, and they do not always get compensated for that, but I am not complaining, because those in agriculture, like my own family, put up our hand to do it and we love it. But to get back to the final point: yes, the government should be looking after issues like police, ambulance, fire services and nurses, irrespective. A vibrant city, yes, but if there is to be a deal done it should have been done on principle in this house in a democratic process rather than in a back room.

There is a place in Canberra where the state has shifted all the responsibility and where it would have been due consideration of the unintended consequences that we are yet to have explained. With those words, I look forward to a vigorous committee stage where we can get all the answers that I think many of us want from the minister on behalf of his government.

Debate adjourned on motion of Hon. C. Zollo.

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