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Cabinet - Subjects for Consideration, 09 September 2002 11:00 Am CABINET - SUBJECTS FOR CONSIDERATION, 09 SEPTEMBER 2002 11:00 AM 1 New Initiatives/Policy Matters Not Relevant 107 MIR-WPS008/02TC1CS Cole Royal Commission - Proposed South Australian Government Position and Representation and Indemnification of Subpoenaed South Australian Government Officers APPROVED (WITH AN AMENDMENT TO 3.12 OF THE SUBMISSION) All Ministers CABINET COVER SHEET 1. TITLE: COLE ROYAL COMMISSION — PROPOSED SOUTH AUSTRALIAN GOVERNMENT POSITION AND REPRESENTATION AND INDEMNIFICATION OF SUBPOENAED SOUTH AUSTRALIAN GOVERNMENT OFFICERS 2. MINISTER: Hon Jay Weatherill MP Minister for Administrative Services Acting Minister for Industrial Relations 3. PURPOSE: To seek Cabinet approval in relation to various matters regarding the Cole Royal Commission into the Building and Construction Industry. 4. RESOURCES REQUIRED Costs to the State could include both internal and FOR IMPLEMENTATION external legal representation and advice, the extent of which is not clear. 5. RELATIONSHIP TO Consistent with Government policy that State GOVERNMENT POLICY: Government officers be indemnified while performing required duties as directed. 6. CONSULTATION: • Department of Treasury and Finance • Department of the Premier and Cabinet • Crown Solicitor's Office • WorkCover 7. URGENCY: Cole Royal Commission is expected to hold hearings in Adelaide in September. 8. IMPACT STATEMENTS Due to the timeframe given for the development of this Submission, the preparation of the required impact statements has not been undertaken. 9. RECOMMENDATIONS: It is recommended that Cabinet: 4.1 notes that the Cole Royal Commission into the Building and Construction Industry has foreshadowed that it may subpoena State Government officers to appear before the Commission; 4.2 approves a policy under which the public sector and Government Corporations cooperate with the Cole Royal Commission; 4.3 approves a policy of advising the Cole Royal Commission into the Building and Construction Industry that all correspondence to the South Australian Government and Government Corporations should be addressed through the Chief Executive of the Department for Administrative and Information Services; 4.4 approves the presence of a legal adviser on each occasion that an officer of the South Australian Government or a Government Corporation is subpoenaed or otherwise required to appear before the Commission in an official capacity, and the indemnification of the legal costs of any such officer called to give evidence to the Cole Royal Commission in relation to that officer acting lawfully in accordance with his or her official duties; 4.5 approves the establishment of an interdepartmental working party, to be chaired by the Chief Executive, Department for Administrative and Information Services, to coordinate the response of the South Australian Government and Government Corporations to the Royal Commission; and 4.6 notes that any costs incurred in relation to the Cole Royal Commission will attempt to be met, in the first instance, from within the existing resources of the agency to which the officer was attached at the time that he or she was acting in the official capacity relevant to the inquiry. Ho Jay Weatherill MP MINISTER FOR ADMINISTRATIVE SERVICES ACTING MINISTER FOR INDUSTRIAL RELATIONS September 2002 MINUTES forming ENCLOSURE to MIR-WPS008/02T1CS; MIR 02/008 CS TO: THE PREMIER FOR CABINET RE: COLE ROYAL COMMISSION — PROPOSED SOUTH AUSTRALIAN GOVERNMENT POSITION AND REPRESENTATION AND INDEMNIFICATION OF SUBPOENAED SOUTH AUSTRALIAN GOVERNMENT OFFICERS 1. PROPOSAL To seek Cabinet approval in relation to various matters regarding the Cole Royal Commission into the Building and Construction Industry. 2. BACKGROUND 2.1 On 29 August 2001 the Commonwealth Government appointed the Honourable Terence Cole RFD QC as a Commissioner to inquire into the building and construction industry (terms of reference at Attachment 1). 2.2 In summary, the Cole Royal Commission is to inquire into and report on: • The nature, extent and effect of any unlawful practice or otherwise inappropriate industrial or workplace practice or conduct, including but not limited to: • the Workplace Relations Act 1996, and other laws relating to occupational health and safety (OHS) and workplace relations • fraud, corruption, collusion, anti-competitive behaviour, coercion, violence, or inappropriate payments, receipts or benefits; and • dictating, limiting or interfering with decisions about whether or not to employ persons and the terms of employment. • The nature, extent and effect of any unlawful or otherwise inappropriate practice or conduct relating to: • failure to disclose or properly account for financial transactions undertaken by employee or employer organisations or their representatives or associates; or • inappropriate management, use or operation of industry funds for training, long service leave, redundancy or superannuation. 2.3 On 10 December 2001, the Chief Executive of the Department of the Premier and Cabinet (DPC) received a request from a solicitor assisting the Commission to provide a range of information and comment to the Commission. 1 mir-wps008-02t1cs.doc MINUTES forming ENCLOSURE to MIR-WPS008/02T1CS; MIR 02/008 CS 2.4 This request primarily relates to building activity undertaken by the former Government and the current Government's position in relation to industrial relations and occupational health and safety reforms. 2.5 DPC is coordinating the initial response to the Commission. The response will convey the outcome of Cabinet's decision on this submission. 2.6 On 30 April 2002 Mr Colin Thatcher, Secretary to the Commission, wrote to the Chief Executive of the Department for Administrative and Information Services (DAIS) making reference to material provided by the Construction, Forestry, Mining and Energy Union (CFMEU) relating to the widespread underpayment of statutory entitlements. Mr Thatcher requested advice on the role of DAIS (Workplace Services) "in ensuring that workers receive their entitlements", Mr Thatcher sought, inter alia the: • statutory and policy foundations for the function (of ensuring workers receive entitlements); • nature and extent of resources applied to it and the means by which they are organised and deployed; and • range of entitlements covered. 2.7 Mr Thatcher also asked for DAIS' view on the approach that it takes to manage "cases in which an employer repeatedly underpays statutory entitlements". 2.8 A response will be provided to the Commission, based on the determination of the South Australian Government's position on this submission to Cabinet. 2.9 On Wednesday, 15 May 2002, officers of Workplace Services(DAIS) held a preliminary meeting with investigators from the Commission. The meeting was convened at the request of the Commission investigators to interview an Occupational Health, Safety and Welfare (OHS&W) Inspector regarding apartments being constructed at No's 1 & 7 North Esplanade, North Glenelg. An unnamed party had alleged to the Commission that a dispute at the properties was not substantially over OHS&W issues as purported, but was instead related to demands for union membership. 2 mir-wps008-02t1cs.doc MINUTES forming ENCLOSURE to MIR-WPS008/02TICS; MIR 02/008 CS 2.10 The investigators indicated that, in relation to this matter, they sought the cooperation of Workplace Services and the inspector concerned, including the voluntary provision of statements, note-books and other materials relating to his work with the sites. They indicated that if the information was not voluntarily given, they could seek an order under the Commission's administering Act (effectively a subpoena) requiring delivery of the documents and the attendance of the inspector before the Commission. As the inspector concerned was on leave, the Commission's request was taken on notice. 2.11 Although the inspector has returned from leave, no additional response has been provided to the Commission in respect to the matter raised by its investigators. 2.12 In May 2002, the Commission announced its intention to release Discussion Papers. At the time of writing this memorandum, the following Discussion Papers have been released: - Discussion Paper 1: An overview of the nature and operation of the building and construction industry - Discussion Paper 2: Statistical Compendium - Discussion Paper 3: Productivity and Performance - Discussion Paper 4: Enterprise Bargaining - Discussion Paper 5: Key Features and Trends in Enterprise Agreements - Discussion Paper 6: Workplace Health and Safety in the Building and Construction Industry . - Discussion Paper 7: A History of Recent Industrial Relations Events in the Australian Building and Construction Industry - Discussion Paper 8: Codes of Practice for the Building and Construction Industry - Discussion Paper 9: Recent Reviews of the Building and Construction Industry 3 mir-wps008-02t I cs.doc MINUTES forming ENCLOSURE to MIR-WPS008/02T1CS; MIR 02/008 CS 2.13 On 10 and 17 May 2002, the Commission wrote to WorkCover seeking information on: - workers' compensation premium compliance and evasion by employers and employees; - investigations and audit activities; and - estimates of costs not recovered through workers' compensation premiums. WorkCover responded to these letters on 6 and 7 June 2002. WorkCover responded to the Commission without reference to the Government. 2.14 On 29 May 2002 a consultant for the Commission contacted DAIS and WorkCover Corporation seeking discussions with them about issues that could
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