Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
WORKPLACE RELATIONS
AMENDMENT BILL 2000
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Minister for Employment, Workplace Relations
and Small
Business, the Honourable Peter Reith MP)
ISBN: 0642 436207
WORKPLACE RELATIONS AMENDMENT BILL 2000
OUTLINE
This Act will amend the Workplace Relations
Act 1996 (the WR Act) to:
• define ‘pattern bargaining’ (that is, bargaining where unions seek common terms and conditions across a number of employers, regardless of the circumstances of the individual businesses concerned), and provide defined consequences where pattern bargaining occurs (in particular, the termination of the relevant bargaining period, so that industrial action is no longer protected);
• enhance the effectiveness of the Australian Industrial Relations Commission’s (the Commission’s) power to issue orders that unlawful industrial action cease or not occur;
• provide access to cooling off periods in respect of protected industrial action; and
• Protect rights to pursue common law remedies in response to unlawful industrial action in Supreme Courts without additional litigation in the form of anti suit injunctions being sought from or issued by the Federal Court
The Act will also make other minor or technical
amendments.
FINANCIAL IMPACT STATEMENT
The measures in this
Act will have no significant impact on Commonwealth
expenditure.
NOTES ON CLAUSES
Clause 1 –
Short title
1. This is a formal provision specifying the short title
of the Act.
Clause 2 – Commencement
2. This clause
specifies when the various provisions of the Act are proposed to
commence.
3. Subclause 2(1) provides that clauses 1, 2 and 3 commence on
the day on which the Act receives the Royal Assent.
4. Subclause 2(2)
provides that, subject to subclause (3), Schedule 1 commences on a day to be
fixed by Proclamation.
5. Subclause 2(3) has the effect that if Schedule
1 does not commence under subclause (2) within 6 months of the Act receiving the
Royal Assent, it will commence on the day following the end of that 6 month
period.
Clause 3 – Schedule(s)
6. Clause 3 provides
that an Act specified in a Schedule is amended or repealed as set out in the
Schedule, and that any other item in a Schedule operates according to its
terms.
SCHEDULE 1 – PATTERN BARGAINING AND RELATED
CONDUCT
Part 1 – Amendments
Workplace Relations Act 1996
Item 1 –
Subsection 4(1)
1. This item proposes to insert a definition of
old IR agreement. The concept of an old IR agreement (which is
defined to mean an agreement certified or approved under various now repealed
provisions) is relevant in the context of the power of the Commission to make
orders to stop or prevent industrial action (see the amendment proposed by item
3).
Item 2 – Subsection 127(1)
2. Subsection 127(1)
empowers the Commission to make orders to stop or prevent industrial action
(that is either happening, threatened, impending or probable), in relation to an
industrial dispute, the negotiation or proposed negotiation of a certified
agreement, or work that is regulated by an award or certified agreement. Items
2 to 5 enhance the effectiveness of this provision.
3. The amendment
proposed by item 2 would clarify that the power to make orders applies only in
relation to industrial action that is not, or would not be, protected action.
(Section 170MT already provides that an order made under section 127 does not
apply to protected action.)
Item 3 – Paragraph
127(1)(c)
4. This item proposes an amendment of subsection (1) to
ensure that the power of the Commission to make orders to stop or prevent
industrial action extends not only to industrial action in relation to work
regulated by an award or an agreement under the current provisions of the Act,
but also to industrial action in relation to work regulated by an old IR
agreement. (A definition of ‘old IR agreement’ is proposed to be
inserted by item 1.)
Item 4 – Subsection
127(1)
5. The amendment proposed by item 5 would require the
Commission to make an order, whenever the prerequisites for doing so
exist.
Item 5 – Subsection 127(3)
6. This item
proposes the repeal of the current subsection 127(3), which requires the
Commission to hear and determine an application for a section 127 order as
quickly as practicable, and the substitution of new provisions, which would
require an application to be dealt with within 48 hours where practicable, and
would also address the situation where making an order within this timeframe is
not practicable, as follows.
7. Under new subsection (3) the Commission
would be required, as far as practicable, to hear and determine an application
for an order under section 127 within 48 hours of the application being made.
The provision makes clear that the issue of whether the industrial action is or
is not protected action is part of the question to be determined within the 48
hour period.
8. Proposed subsection (3A) would apply where the
Commission is unable to determine an application within 48 hours. In such
circumstances, the Commission is to be required to make, within the 48 hour
period, an interim order to stop or prevent the industrial action at issue,
which would apply until the application is determined. The Commission will not,
however, be required to make such an order where it is satisfied that to do so
would be contrary to the public interest.
9. This item would insert a new section 170LGA to define ‘pattern
bargaining’. This definition is relevant to new section 170MP, proposed
to be inserted by item 10, and new section 170MWB, proposed to be inserted by
item 13. The purpose of these amendments is to ensure that protected industrial
action is limited to the pursuit of enterprise-specific outcomes, and is not
generally available as a means of seeking common outcomes across a number of
employers or across an industry.
10. Proposed subsection (1) would mean that pattern bargaining is a
course of conduct or bargaining, or the making of claims, being a campaign, or
part of a campaign, that involves seeking common outcomes in respect of wages
and/or other employment entitlements. The Commission must be satisfied that
two elements exist:
• the conduct, bargaining, or making of claims
is part of a campaign that extends beyond a single business; and
• the conduct, bargaining, or making of claims is contrary to the
objective of encouraging agreements to be genuinely negotiated between parties
at the workplace or enterprise level.
11. This definition has effect
subject to proposed subsections (2) to (5).
12. Proposed subsection (2)
relates to the second element of the definition in subsection (1). It would
provide that conduct, bargaining or making of claims which would amount to the
first element, and is by an organisation of employees that is a negotiating
party to a proposed agreement, is taken to be contrary to the relevant
objective, unless the Commission is satisfied that all of the common
entitlements being sought are of such a nature that they are not capable of
being pursued at the single business level. The emphasis in this provision is
on the way in which claims are pursued, rather than the merits of the
entitlements sought. In determining whether or not it is satisfied that the
entitlements being sought are of such a nature that they are not capable of
being pursued at the single business level, the Commission will not be
considering the merits of those entitlements.
13. Three notes are
proposed after subsection (2). These give examples of types of claims that
might be pursued as part of a common claim extending beyond a single business,
but will not be pattern bargaining if the Commission is satisfied that the
entitlements being sought are of such a nature that they are not capable of
being pursued at the single business level.
14. Proposed subsections (3)
to (5) make additional provision in relation to the issue whether entitlements
are or are not capable of being pursued at the single business
level.
15. Proposed subsection (3) would express that the Commission
cannot be satisfied that entitlements are not capable of being pursued at the
single business level, merely because the entitlements are being sought as
common entitlements extending beyond a single business. For example, a desire
on the part of a negotiating party that the same wage should apply to all
businesses in an industry will not be enough to establish that wage entitlements
are not capable of being pursued at the single business level. An issue not
capable of being pursued at the single business level would need to have an
intrinsic characteristic that makes it incapable or inappropriate to be pursued
at a single business level. The mere convenience or desire of a party to
negotiate issues not of that character on a multi employer or industry wide
basis would not suffice.
16. Proposed subsection (4) would provide that
the Commission is to have particular regard to the views of the employer
concerned, in determining whether the entitlements sought by an organisation are
of such a nature that they are not capable of being pursued at the single
business level.
17. Proposed subsection (5) would make clear that an
organisation of employees is not taken to have engaged in pattern bargaining
merely because the organisation is seeking the inclusion in a proposed agreement
of terms and conditions which give effect to the terms of an order of a Full
Bench of the Commission that established national standards.
Item 7
– Subsection 170MI(1) (note)
18. The existing note to
subsection 170MI(1) explains that the ability to initiate a bargaining period
set out in subsection 170MI(1) is subject to other provisions of the WR Act
(which allow the Commission, on terminating a bargaining period, to impose a
period within which a fresh bargaining period may not be initiated). This item
would add proposed new subsection 170MWB(3), which is to be inserted by item 13
below, to the list of relevant provisions.
Item 8 – Paragraph
170ML(2)(b)
19. Subsection 170ML(2) presently sets out who may take
protected action in pursuit of a proposed certified agreement.
20. This
item would close a loophole in the legislation, which currently allows protected
industrial action to be taken by any employee of an employer that is negotiating
an agreement with a union where the employee is a member of that union,
regardless of whether the employee would be subject to the proposed agreement.
The proposed amendment would ensure that protected action during negotiations
for a certified agreement is only available to members of organisation of
employees whose employment is to be covered by the proposed certified
agreement.
21. This item would repeal and replace section 170MM. The existing
section 170MM (Industrial action must not involve secondary boycott) provides
that engaging in and organising industrial action is not protected action if
persons other than ‘protected persons’ are involved. New section
170MM defines ‘protected person’ more closely, again so as only to
cover those employees of the employer in question whose employment is to be
covered by the proposed agreement.
New section 170MM –
Industrial action must not involve persons who are not protected for that
industrial action
22. The provisions of existing section 170MM are
proposed to be reintroduced, but in a way that more clearly links protection for
industrial action to a particular proposed agreement and the particular
employees whose employment will be subject to the proposed agreement.
23. New subsections 170MM(1) and (2) would have the effect that
industrial action will lose its protected status if it is organised or engaged
in in concert with any person or organisation of employees that is not protected
in respect of the specific industrial action being taken (ie action solely in
pursuit of a specific agreement by those who it is proposed will be subject to
that agreement). New subsection 170MM(3) would define ‘protected
person’ for industrial action in relation to a proposed agreement to mean
an organisation of employees that is a negotiating party, a member of the
organisation whose employment will be subject to the agreement, an officer or
employee of the organisation; or, an employee who is a negotiating
party.
Item 10 – After subsection
170MP(1)
24. Subsection 170MP(1) currently provides that engaging in
industrial action by a person who is a member of an organisation of employees is
not protected action unless the organisation has previously genuinely tried to
reach agreement with the relevant employer (and complied with any Commission
order in relation to the relevant negotiations). This item would insert a new
section 170MP(1A), which would provide that an organisation is taken not to have
genuinely tried to reach an agreement if it was engaged in pattern bargaining
(as defined by new section 170LGA, to be inserted by item 6).
25. This item would insert a new section 170MTA.
26. New section 170MTA would expressly confer jurisdiction on the Federal
Court to determine whether industrial action is protected, and, if so, whether
the industrial action is or is not covered by the immunity provisions set out in
subsections 170MT(1) and (2). The Federal Court already has such jurisdiction;
proposed subsection (1) would clarify who may apply for such a
determination.
27. Proposed subsection (2) would prohibit the Federal
Court from issuing anti-suit injunctions in respect of proceedings being brought
or pursued in respect of industrial action under:
• section
127;
• any of sections 170MW to 170MWB; or
• any law,
whether written or unwritten, in force in a State or
Territory.
28. Proposed subsection (3) is a technical provision that
would ensure that the conferral of express powers on the Federal Court does not
impact on its other powers.
29. Proposed subsection (4) would provide
that the Federal Court’s jurisdiction in respect of such matters is not
exclusive.
Item 12 – After section 170MW
30. This
item would insert a new section requiring the Commission, in certain
circumstances, to suspend a bargaining period to allow for a period of
cooling-off during which negotiating parties could attempt to settle the matters
at issue between them without recourse to industrial action.
31. Proposed subsection (1) would require the Commission to suspend a
bargaining period for a specified period, on application by a negotiating party,
if satisfied that the suspension would assist the parties in resolving the
issues between them and would not be contrary to the public interest. Any
industrial action taken in relation to a proposed agreement while the bargaining
period is suspended would not be protected action (proposed subsection
(4)).
32. Under proposed subsection (2), the period for which a
bargaining period is suspended is to be a period that the Commission considers
appropriate. This period may be extended on the application of a negotiating
party. In determining whether to extend a period of suspension, the Commission
must have regard to the same considerations as apply to determining whether to
suspend a bargaining period under proposed subsection (1).
33. Proposed
subsection (3) would prevent the Commission from making an order suspending a
bargaining period unless the negotiating parties had been given an opportunity
to be heard on the matter.
Item 13 – After section
170MWA
New section 170MWB – Commission must terminate
bargaining period if organisation of employees engages in pattern
bargaining
34. Proposed new subsection 170MWB would require the
Commission to terminate a bargaining period, on application by a negotiating
party, if an organisation of employees has engaged or is engaging in pattern
bargaining in respect of the proposed agreement. (A definition of the term
‘pattern bargaining’ is to be inserted as new section 170LGA by item
6.)
35. Proposed subsection (2) would prevent the Commission from making
such an order unless the negotiating parties had been given an opportunity to be
heard on the matter.
36. Where the Commission terminates a bargaining
period under this provision, proposed subsection (3) would authorise the
Commission, if it considers it would be in the public interest to do so, to
restrict the ability of a negotiating party or an employee of the employer
concerned to initiate a new bargaining period.
Part 2 – Application and transitional
provisions
37. Part 2 makes provision for the operation of the amendments made by this
Schedule.
38. Subitem (1) proposes that items 2 to 5 (the amendments relating to
section 127 of the WR Act) would apply fully to applications made under section
127 on or after the commencement of item 14. (Item 15 deals with the
application of the amendments made by Part 1 to applications under section 127
which had been made before the commencement of item 14.)
39. Subitem (3)
proposes that item 13 (which would insert new section 170MWB, enabling the
termination of a bargaining period where pattern bargaining has been engaged in)
would apply fully in relation to relevant conduct, bargaining or the making of
claims, regardless of whether the conduct or bargaining occurred, or the claims
were made, before, on or after the commencement of item 14.
40. Subitem
(2) proposes that items 8 to 12 (the remaining amendments concerning protected
action and pattern bargaining) would apply only to industrial action engaged in
on or after the commencement of item 14, but would so apply regardless of
whether the relevant bargaining period began before or after that
commencement.
Item 15 – Transitional – applications to
Commission under section 127
41. This item sets out what is proposed
to happen where an application for an order under section 127 has been made, but
has not been finalised by the Commission, as at the commencement of this
item.
42. By subitem (2), where the Commission had started to deal with
the application before commencement, the application would continue to be dealt
with under the current provisions, notwithstanding the amendments made by Part
1.
43. By subitem (3), where the Commission had not started to deal with
the application before commencement of this item, the application would be taken
to have been made (and would be required to be dealt with), under the amended
provisions. In such a case, the 48 hours referred to in section 127 (as
proposed to be amended by item 5) would be required to be calculated from the
start of the day on which this item commences.