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2004 - 2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
WORKPLACE RELATIONS AMENDMENT (BETTER BARGAINING) BILL 2005
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment and Workplace Relations,
the Honourable Kevin Andrews MP)
Outline
WORKPLACE RELATIONS AMENDMENT (BETTER BARGAINING) BILL 2005
OUTLINE
The Bill proposes amendments to the Workplace Relations Act 1996 (WR Act) to:
ensure that industrial action cannot be taken from the time an agreement, or an award
made under subsection 170MX(3), comes into operation until the nominal expiry date
of the agreement or award has passed;
allow the suspension of a bargaining period to allow for a cooling-off period during
the negotiations for a certified agreement;
allow the suspension of a bargaining period on application by a directly affected third
party where industrial action is threatening to cause significant harm;
clarify that subparagraph 170LB(2)(b) does not apply with respect to industrial action
taken by or directly against the employer; and
clarify that where parties negotiating a certified agreement and parties outside the
agreement take industrial action in concert, this is not protected action.
Financial Impact Statement
The measures in this Bill will have no significant impact on Commonwealth expenditure.
House of Representatives 1 Workplace Relations Amendment
(Better Bargaining) Bill 2005
Regulation impact statement Suspension of bargaining periods for
Cooling-off and third party suspensions
REGULATION IMPACT STATEMENT
Suspension of bargaining periods for cooling-off and third party suspensions
Cooling - off Periods
Background
Under section 170MW of the WR Act, the Australian Industrial Relations Commission (the
Commission) is empowered to suspend or terminate a bargaining period (and thus protected
industrial action) on a number of grounds. The grounds include that a party is not genuinely
trying to reach agreement or that industrial action is threatening to endanger the life, personal
safety, health or welfare of the population or a part of it, or to cause significant damage to the
Australian economy or a significant part of it.
Termination
If a bargaining period is terminated on the grounds that the protected industrial action is
threatening to endanger the life, the personal safety or health, or the welfare, of the population or
part of it, or to cause significant damage to the Australian economy or an important part of it the
Commission must conciliate and if necessary arbitrate an award under section 170MX to settle the
differences between the parties.
Suspension
The power of suspension under section 170MW has been used in a limited number of cases by
the Commission and parties as a means of establishing a cooling-off period during the
bargaining process to assist the resolution of disputes by enabling parties to negotiate in a less
charged atmosphere.
Problem or issue identification
The WR Act does not currently contain any direct provision for cooling-off periods to address
cases of stalemate or to act as a circuit breaker in cases of protracted industrial action. While
section 170MW provides some limited scope for the Commission to establish informal
cooling-off periods, it generally can only be invoked in defined and limited circumstances, for
example when industrial action is threatening the national economy.
Cooling-off periods can play a valuable role in the negotiation process and would allow the
parties, in the specified circumstances, further time to negotiate without the pressure of
continued industrial action. Cooling-off periods would also give the parties time to
investigate and consider the use of alternative means for resolving a stalemate situation, for
example with the assistance of voluntary conciliation.
The lack of any direct arrangements for establishment of cooling-off periods may also
encourage parties to continue with industrial action. For example, parties could contrive
protected industrial action to establish the basis for termination of a bargaining period on
grounds which result in arbitration as the means to resolve disputes rather than encouraging
them to step back from industrial action and settle their differences by negotiation.
House of Representatives 2 Workplace Relations Amendment
(Better Bargaining) Bill 2005
Regulation impact statement Suspension of bargaining periods for
Cooling-off and third party suspensions
Specification of the desired objectives
The Government's broad objective is to provide legislative arrangements that encourage and
assist parties to negotiate at the enterprise level without recourse to industrial action and to settle
their differences without arbitral intervention.
Identification of options
Options
Option 1: Status quo
Retain the current procedures for suspension of bargaining periods which enable the Commission
to grant an informal cooling-off period in situations where the requirements of section 170MW
for suspensions can be met.
Option 2: Provide for cooling-off periods
Clear provisions for cooling-off periods could be included in the WR Act by allowing the
Commission to suspend a bargaining period on application from a negotiating party in appropriate
circumstances where protected action is being taken in respect of the proposed agreement. In
deciding if a suspension of a bargaining period would be appropriate, the Commission would have
regard to whether or not suspending the bargaining period would assist the negotiating parties to
resolve the matters at issue, the duration of any protected action that is being taken (or has been
taken) in respect of the proposed agreement, whether or not suspending the bargaining period
would be contrary to the public interest or inconsistent with the objects of the Act and any other
matter the Commission considers relevant.
If an order suspending a bargaining period was made, the Commission would specify the length of
the suspension period. A negotiating party could apply to have the suspension of the bargaining
period extended. The Commission would have regard to the same matters listed above, and
whether or not the negotiating parties during the period of the suspension had genuinely tried to
reach an agreement. An extension of a suspension of a bargaining period could only occur once.
In addition, to assist the resolution of the dispute, the Commission would be required to inform
the negotiating parties that they may voluntarily submit the matters at issue to an agreed mediator
for the purposes of mediation or to the Commission for the purposes of conciliation.
Assessment of impacts (costs and benefits) of each option
Option 1: Status quo
Costs
Because the WR Act does not formally establish provisions for cooling-off periods, application of
the suspension powers under section 170MW to establish cooling-off periods is at the discretion
of individual members of the Commission with only limited legislative guidance as to how and
when these powers should be invoked.
House of Representatives 3 Workplace Relations Amendment
(Better Bargaining) Bill 2005
Regulation impact statement Suspension of bargaining periods for
Cooling-off and third party suspensions
The suspension powers of section 170MW are not well suited to providing for cooling-off
periods, they cannot be easily used in this role and cannot be invoked in many circumstances
where the suspension of a bargaining period would be appropriate.
Maintaining the existing provisions would prevent many parties from accessing the benefit of
cooling-off periods as a circuit breaker in cases of stalemate or protracted disputes. More
businesses are therefore likely to experience situations in which reaching agreement is made more
difficult because of the continuation of industrial action during negotiations. Such protracted
action can result in substantial long-term costs to employers, employees and to productive
workplace relationships.
Similarly, little legislative guidance is provided as to whether the Commission should suspend or
should terminate a bargaining period when the relevant criteria are met. This results in some
uncertainty amongst the parties regarding the consequences of their actions and may also provide
incentive for some parties to escalate industrial action in order to obtain access to the arbitration
powers of the Commission under section 170MX.
Benefits
In some cases the Commission has been able to utilise the powers available to it to establish
cooling-off periods. The Commission could continue to do so to this limited and informal extent
even if the legislation were not amended.
Option 2: Providing for cooling-off period
Costs
The introduction of cooling-off periods will mean that the WR Act contains another regulatory
mechanism.
Benefits
The current limited use of section 170MW to establish informal cooling-off periods is recognition
of the benefits that can be gained by such an approach. Introducing formal arrangements for
cooling-off periods will extend the potential benefits to a much wider range of parties in a wider
range of circumstances which have been clearly defined. Cooling-off periods will assist parties to
resolve disputes over certified agreements by enabling them to negotiate in a less charged
environment than that which is likely to exist when prolonged industrial action is continuing. This
will tend to improve the parties' ability to negotiate agreements to their mutual benefit and will
concomitantly assist in reducing the overall extent and duration of industrial action and associated
costs to employers and employees.
Drawing parties' attention to voluntary mediation and conciliation will assist to resolve disputes
without further industrial action.
Consultation
The Department of Employment and Workplace Relations (DEWR) wrote to key stakeholders
requesting their views on the proposal to provide for cooling-off periods.
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(Better Bargaining) Bill 2005
Regulation impact statement Suspension of bargaining periods for
Cooling-off and third party suspensions
Responses were received from the Northern Territory Office of the Commissioner for Public
Employment, the Western Australian Department of Consumer and Employment Protection
(DoCEP), the Australian Council of Trade Unions (ACTU), the Queensland Government, the
Victorian Department of Innovation, Industry and Regional Development (DIIRD), the Australian
Chamber of Commerce and Industry (ACCI), and the Australian Industry Group (AiG).
The AiG and ACCI both indicated strong support for the measure.
The ACTU noted that as the proposal was the same as that in the Workplace Relations
Amendment (Genuine Bargaining) Bill 2002 and the submissions previously made in relation to
this matter were still relevant. The ACTU stated previously that `widening the ability of the IRC
to suspend a bargaining period in cases of protracted action...is an attempt to tilt the balance in
negotiations even further towards employers, without giving unions and employees any additional
access to arbitration of their claims'.
The DoCEP noted the Commission is already empowered under section 170MW of the WR Act
to suspend a bargaining period. Further extension of the Commission's powers to order a
cooling-off period would have to be justified on the basis section 170MW was inadequate in
practice.
Consideration was given to the ACTU and DoCEP comments. It was ultimately decided that the
benefits from such a suspension mechanism outweighed the cost and that this was the most
effective way of balancing the rights and responsibilities with the workplace relations system.
Employer groups such as AiG have previously provided evidence of the potential benefits of
cooling-off periods.
Conclusion and Recommended Option
The Government believes that the WR Act should explicitly provide for cooling-off periods by
amending the current provisions for suspension of bargaining periods. Explicit provision for
cooling-off periods will allow the opportunity for parties to resolve issues directly, or with the
assistance of voluntary conciliation and/or mediation and will have particular value in cases of
protracted action or where a stalemate has arisen.
Implementation and review
The proposal requires amendments to the WR Act. DEWR will monitor and evaluate the effect
of such legislative change.
Provision for suspensions by third parties
Background
Under subsection 170MW(3) of the WR Act the Commission may suspend or terminate a
bargaining period where industrial action is threatening to endanger the life, the personal safety or
health, or the welfare, of the population or part of it, or to cause significant damage to the
Australian economy or an important part of it. In these particular circumstances the Commission
House of Representatives 5 Workplace Relations Amendment
(Better Bargaining) Bill 2005
Regulation impact statement Suspension of bargaining periods for
Cooling-off and third party suspensions
can act on its own initiative or on application by the Minister, rather than being limited to only
making an order on application by a negotiating party.
Termination
If a bargaining period is terminated under subsection 170MW(3) of the WR Act, the Commission
must conciliate and the Commission must, if it considers appropriate, arbitrate to settle the
matters.
Problem or issue identification
The WR Act does not currently contain any direct provisions for providing relief for third
parties that may be suffering significant harm as a result of industrial action.
Currently under section 170MW of the WR Act relief to third parties is only indirectly provided.
The Commission may suspend or terminate a bargaining period where industrial action is
threatening to endanger life or the personal safety, health, or welfare of the population or to cause
significant damage to the economy. However, in these circumstances the Commission may only
grant an order on application by a negotiating party, the Minister or when acting on its own
initiative. Other parties, despite sustaining significant harm, are unable to initiate direct relief from
the Commission from the impact of the industrial action.
For a business and employees of a business that are not party to industrial action, but are
affected by the action, such interference can potentially result in loss of profits and wages and
even business closure. For third parties in the community more generally, industrial action can
cause significant disruptions resulting in financial and non-financial losses.
Providing third parties with a remedy against harm from industrial action has the potential to
lessen the impact and the extent of losses and harm incurred.
Specification of the desired objectives
The Government's broad objective is to provide legislative arrangements that encourage and
assist parties to negotiate at the enterprise level without recourse to industrial action and to settle
their differences without arbitral intervention.
Identification of options
Options
Option 1: Status quo
Retain the current procedures for suspending or terminating a bargaining period whereby the
Commission may only grant an order on application by a third party where the third party is the
Minister and the industrial action is threatening to endanger life or the personal safety, health, or
welfare, of the population or part of it, or to cause significant damage to the Australian economy
or an important part of it.
Option 2: Provide for suspensions by third parties
House of Representatives 6 Workplace Relations Amendment
(Better Bargaining) Bill 2005
Regulation impact statement Suspension of bargaining periods for
Cooling-off and third party suspensions
Provisions to allow for suspension of bargaining periods where significant harm is being done to a
third party could be included in the WR Act by allowing the Commission to suspend a bargaining
period on application by or on behalf of an organisation, a person or a body directly affected by
the action (other than a negotiating party) or the Minister, if industrial action is being taken in
respect of a proposed agreement. In deciding if the suspension of a bargaining period would be
appropriate, the Commission would consider whether the action is threatening to cause significant
harm to any person (other than the negotiating party) and would have regard to whether
suspending the bargaining period would be contrary to the public interest or inconsistent with the
objects of the WR Act and any other matters that the Commission considers relevant.
In considering whether the action is threatening to cause significant harm to any person the
Commission may have regard to particular factors:
if the person is an employee, the extent to which the action affects the interests of the person as
an employee;
the extent to which the person is particularly vulnerable to the effects of the action;
the extent to which the action threatens to:
- damage the ongoing viability of a business carried on by the person;
- disrupt the supply of goods or services to a business carried on by the person;
- make the person unable to perform a condition of a contract to which he or she is a
party;
- cause other economic loss to the person; and
- any other matters that the Commission considers relevant.
Assessment of impacts (costs and benefits) of each option
Option 1: Status quo
Costs
Because the WR Act does not provide third parties with the means to gain specific relief where
industrial action is causing them significant harm, third parties will continue to incur significant
harm as the result of the action.
Benefits
Under section 170MW of the WR Act the Commission may provide relief indirectly to third
parties by suspending or terminating a bargaining period where an application is made by a
negotiating party, the Minister or the Commission acts on its own initiative, and industrial action
is threatening to endanger life, the personal safety or health, or the welfare of the population or to
cause significant damage to the economy. The Commission could continue in this limited way to
provide occasional indirect relief to third parties even if the legislation was not amended.
Option 2: Provide for suspensions by third parties
Costs
Providing for the suspension of a bargaining period on the application of third parties will mean
that the WR Act contains another regulatory mechanism.
House of Representatives 7 Workplace Relations Amendment
(Better Bargaining) Bill 2005
Regulation impact statement Suspension of bargaining periods for
Cooling-off and third party suspensions
Benefits
Providing for the suspension of the bargaining period on the application of third parties will
enable third parties to seek relief from the Commission when they are being significantly harmed
by industrial action.
Consultation
DEWR wrote to key stakeholders requesting their views on the proposal to provide for the
suspension of bargaining periods on application third parties.
Responses were received from the Northern Territory Office of the Commissioner for Public
Employment, the ACTU, the Queensland Government, DIIRD, DoCEP, AiG, and ACCI.
The AiG indicated strong support for the measure.
The ACTU stated that the WR Act already provides appropriate relief for third parties in that
subsection 170MW(3) provides for a bargaining period to be suspended or terminated where
industrial action may threaten the health and welfare of the population or cause significant damage
to the Australian economy.
DoCEP considered it inappropriate for third parties to intervene as proposed.
While the comments from the ACTU and the DoCEP were considered it was ultimately decided
that the benefits from such a suspension mechanism outweighed the cost and that this was the
most effective way of balancing the rights and responsibilities with the workplace relations
system.
Conclusion and Recommended Option
The Government believes that the WR Act should provide for third parties to seek direct relief
from the Commission by way of a suspension of a bargaining period, when they are being
significantly harmed by industrial action. This provision will place some brake on the harm that
can be incurred by third parties due to the action of parties negotiating an agreement.
Implementation and review
All of the proposals would require amendments to the WR Act. DEWR would monitor and
evaluate the effect of such legislative change.
House of Representatives 8 Workplace Relations Amendment
(Better Bargaining) Bill 2005
Regulation impact statement Suspension of bargaining periods for
Cooling-off and third party suspensions
House of Representatives 9 Workplace Relations Amendment
(Better Bargaining) Bill 2005
Notes on clauses
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 various provisions of the Act are proposed to commence. Sections
1 to 3 and anything in the Act not elsewhere covered by the table will commence on the day on
which the Act receives the Royal assent. The amendments set out in Schedule 1, 2, 3, and 4 will
commence 28 days after the Act receives Royal Assent.
Clause 3 - Schedule(s)
3. This clause provides that an Act that is specified in the Schedule is amended or repealed as set
out in the Schedule, and any other item in a Schedule operates according to its terms.
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(Better Bargaining) Bill 2005
Schedule 1 - Industrial action and lockouts before expiry of agreement etc.
SCHEDULE 1 - INDUSTRIAL ACTION AND LOCKOUTS BEFORE EXPIRY OF
AGREEMENT etc.
Workplace Relations Act 1996
Item 1 - Subsection 170MN(1)
1. This item proposes to omit words from subsection 170MN(1) and substitute new words to
ensure that industrial action cannot be taken from the time an agreement or an award made under
subsection 170MX(3), comes into operation until the nominal expiry date of the agreement or
award has passed.
2. Existing section 170MN provides that, from the time when a certified agreement or an award
made under subsection 170MX(3) comes into operation, until its nominal expiry date has passed,
an employee, organisation or officer covered by the agreement or award must not, for the
purposes of supporting or advancing claims against the employer in respect of the employment of
employees whose employment is subject to the agreement or award, engage in industrial action.
Section 170MN is a penalty provision.
3. In Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and
Kindred Industries Union [2003] FCAFC 183 (Emwest), the Full Federal Court found that under
the current section 170MN, protected industrial action could be taken, prior to a certified
agreement passing its nominal expiry date, provided the protected action was in relation to claims
not already covered in the agreement.
4. While proposed new subsection 170MN(1) is designed to remedy the decision of the Full
Federal Court in Emwest, it goes further by prohibiting all industrial action, irrespective of its
purpose, until the nominal expiry date of an agreement or an award made under subsection
170MX(3) has passed. For example, as a result of the proposed amendments to section 170MN,
industrial action directed at a third party rather than the employer would be prohibited during the
life of a certified agreement.
Item 2 - Subsection 170MN(4)
5. Item 2 proposes a similar amendment, as proposed in Item 1, to lockouts.
Item -3 - Application
6. This item proposes that the amendments proposed by Items 1 and 2 will only apply in relation
to engaging in or organising industrial action or lockouts on or after the commencement of this
Schedule.
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(Better Bargaining) Bill 2005
Schedule 2 - Suspension of bargaining periods
SCHEDULE 2 - SUSPENSION OF BARGAINING PERIODS
Workplace Relations Act 1996
Item 1 - After section 170MWA
170MWB - Power of Commission to suspend bargaining period to allow for cooling-off
application by negotiating party
7. This item proposes to insert new section 170MWB to provide the Commission with discretion
to suspend a bargaining period to allow for a cooling-off period. The intention of the cooling-off
period is to remove, for a period of time, the pressure of protected industrial action from the
negotiations for a certified agreement, allowing parties room to continue negotiations in a less
charged environment.
8. Proposed paragraphs 170MWB(1)(a)-(c) allows the Commission to order a cooling-off period
if a number of requirements are met.
9. Proposed paragraph 170MWB(1)(a) ensures that a suspension for cooling-off is only available
to parties negotiating in relation to the proposed agreement. The remedy is not available to any
parties outside the proposed agreement.
10. Proposed paragraph 170MWB(1)(b) refers to protected action taking place. This is not
limited to situations where industrial action is actually taking place. This is consistent with the
Full Bench decision in State of Victoria and Health Services Union [Print L9810].
11. Proposed subparagraphs 170MWB(1)(c)(i)-(iv) list factors for the Commission to consider in
deciding whether a suspension is appropriate. The Commission is not confined to the factors
listed and may refer to any factors it considers to be relevant.
12. Under proposed subsection 170MWB(2), the appropriate length of a cooling-off period is at
the discretion of the Commission.
13. Under proposed subsection 170MWB(3), the Commission has discretion to extend the period
of a suspension of the bargaining period. An extension may only be made on the application of a
negotiating party in respect of the proposed agreement. In considering whether an extension
should be ordered, the Commission will have regard to the same factors it considered in ordering
a suspension. Also the Commission will consider whether the negotiating parties have used the
cooling-off period genuinely try to reach an agreement.
14. Proposed subsection 170MWB(4) provides that a cooling-off period may only be extended
once.
15. In the interests of procedural fairness, under proposed subsection 170MWB(5), the
Commission must give the negotiating parties the opportunity to be heard when considering an
application for a cooling-off period, or an application for an extension to the cooling-off period.
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Schedule 2 - Suspension of bargaining periods
16. To facilitate the parties resolving the matters at issue between them, proposed subsection
170MWB(6) requires the Commission to inform the negotiating parties that mediation and
conciliation are available to them during the suspension period.
17. A cooling-off period is intended to provide a circuit break in protracted negotiations for a
certified agreement, therefore, under new subsection 170MWB(7), parties cannot take protected
industrial action during a cooling-off period.
18. A suspension under proposed section 170MWB differs from a suspension under existing
section 170MW in that it is intended to provide a break in the industrial action to assist the
negotiating parties to resolve the outstanding issues between them. Section 170MW gives the
Commission discretion to put a stop to industrial action in specified circumstances set out in
existing subsections 170MW(2)-(7).
170MWC - Power of Commission to suspend bargaining period - significant harm to third
party
19. This item proposes to insert new section 170MWC to give the Commission the discretion to
suspend a bargaining period where third parties are threatened with significant harm as a result of
industrial action. Applications may be made by, or on behalf of, a person directly affected by the
industrial action, or by the Minister. The remedy is not available to the parties negotiating the
proposed agreement.
20. Proposed subsection 170MWC(1) requires the Commission to consider a number of factors
in exercising its discretion to suspend a bargaining period. The factors to be considered by the
Commission include whether industrial action is being taken which threatens to cause significant
harm to any person. This includes the organising of industrial action but is not limited to
situations where industrial action is actually taking place. This is consistent with the Full Bench
decision in State of Victoria and Health Services Union [Print L9810].
21. The Commission is also required to consider whether:
the industrial action is threatening to cause significant harm to any person (other than a
negotiating party); and
suspending the bargaining period would be appropriate by reference to the public interest,
the principal objects of the WR Act, and any other relevant matters..
22. Proposed subsection 170MWC(2) provides factors for the Commission to refer to when
considering whether significant harm is threatened. The factors are not exclusive and the
Commission may consider any other matters it considers relevant. It may be relevant to the
Commission's consideration that the significant harm is presently occurring, but the provision only
requires that the action is threatening to cause such harm.
23. Proposed paragraphs 170MWC(2)(a) and (c) refer to the interests of employees and the
extent to which industrial action disrupts or threatens the viability of a business. The inclusion of
these factors means that the Commission can address situations where industrial action taken in
one business may cause significant damage to another business or to employees in another
business. These circumstances commonly arise in the car industry where, for example, industrial
House of Representatives 13 Workplace Relations Amendment
(Better Bargaining) Bill 2005
Schedule 2 - Suspension of bargaining periods
action taken by a components manufacturer has a flow on effect to major manufacturers and their
employees.
24. Proposed paragraph 170MWC(2)(b) refers to the extent to which a person is particularly
vulnerable to the consequences of the industrial action. This means the Commission will be able
to consider the impact of the industrial action on those most affected by it.
25. Under proposed subsection 170MWC(3), the appropriate length of a suspension is at the
discretion of the Commission.
26. Under proposed subsection 170MWC(4), the Commission has discretion to extend the period
of a suspension of the bargaining period. An extension may only be made on the application by or
on behalf of a party directly affected by the industrial action or by the Minister. In considering
whether an extension should be ordered, the Commission is to have regard to the same factors it
considered in ordering the suspension.
27. Under proposed subsection 170MWC(5), only one extension of the suspension period is
allowed. The appropriate length of an extension of a suspension period is at the discretion of the
Commission.
28. In the interests of procedural fairness, under proposed subsection 170MWC(6) the
Commission must give the negotiating parties the opportunity to be heard when considering an
application for a third party suspension or extension of a suspension on the basis of threatened
significant harm to a third party.
29. To facilitate the parties resolving the matters at issue between them, proposed subsection
170MWC(7) requires the Commission to inform the negotiating parties that mediation and
conciliation are available to them during the suspension period.
30. Proposed subsection 170MWC(8) provides that any industrial action taken in respect of the
proposed agreement where a bargaining period has been suspended is not protected action.
Item 2 - Application of amendment
31. This item proposes that the amendments in Item 1 will only apply to bargaining periods which
began on or after the commencement of this Schedule.
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Schedule 3 - Protected action and related corporations
SCHEDULE 3 - PROTECTED ACTION AND RELATED CORPORATIONS
Workplace Relations Act 1996
Item 1 - After subsection 170ML(3)
32. The WR Act provides that a certified agreement can be made between employers and
employees in a single business of the employer. The WR Act also provides that, in relation to
specific circumstances, a multiple business agreement can be made which can involve more than
one employer. Protected action is not available in relation to a proposed multi-business
agreement.
33. Subsection 170LB(2) provides a means whereby 2 or more employers can be treated as a
single business and a single employer for the purposes of making and certifying agreements. In
particular, paragraph 170LB(2)(b) provides that if 2 or more corporations that are related to each
other for the purposes of the Corporations Act 2001 each carry on a single business, they may be
treated as one employer and the businesses may be treated as one business.
34. Subsections 170ML(2) and (3) provide that employees and employers may, during a
bargaining period, take protected action or organise a lockout for the purpose of supporting or
advancing claims made in respect of the proposed agreement.
35. This item proposes to insert a new subsection 170ML(3A) after the existing subsection
170ML(3). Proposed subsection 170ML(3A) provides that, for the purposes of subsection
170ML(2) and subsection 170ML(3), 2 or more related corporations cannot be treated as a single
employer under sub paragraph 170LB(2)(b).
36. The item is designed to make it clear that protected industrial action may not be taken by or
against 2 or more companies that are related to the employer and which may be treated as a
`single employer' for the purposes of subparagraph 170LB(2)(b). This item does not affect the
ability of employers and employees to make and certify agreements in reliance on the facilitative
provision in subparagraph 170LB(2)(b). This item only affects the scope of the immunity
conferred by section 170ML (protected action).
Item 2 - Application of amendment
37. This item proposes that the amendments made by Item 1 will only apply to bargaining periods
initiated after the commencement of this Schedule. The proposed amendment will not impact on
industrial action taken prior to the enactment of the amendments.
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(Better Bargaining) Bill 2005
Schedule 4 - Protected action and involvement of non - protected parties
SCHEDULE 4 - PROTECTED ACTION AND INVOLVEMENT OF NON -
PROTECTED PERSONS
Workplace Relations Act 1996
Item 1 - Section 170MM
38. This item repeals section 170MM and substitutes a new section 170MM. The proposed
section is designed to make clear that protected industrial action can only be taken by parties to
whom the proposed agreement will apply (ie, a union, employer, or employee that is a negotiating
party in respect of the agreement or a member of a union negotiating party whose employment
will be subject to the proposed agreement).
39. 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).
40. The heading of the section is changed to make it clear that the section applies to any
circumstance in which industrial action is engaged in, in concert with person who are not
protected for that action.
Item 2 - Application of amendment
41. This item proposes that the amendments in the Schedule will only apply in relation to
engaging in or organising industrial action on or after the commencement of this Schedule.
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