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1998-1999-2000-2001
THE PARLIAMENT
OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
WORKPLACE RELATIONS AMENDMENT
(PROHIBITION OF COMPULSORY UNION FEES) BILL
2001
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Minister for Employment,
Workplace Relations and Small
Business, the Honourable Tony Abbott MP)
ISBN: 0642 457921
WORKPLACE RELATIONS AMENDMENT (PROHIBITION OF COMPULSORY UNION FEES) BILL
2001
This Bill will amend the Freedom of Association provisions in Part
XA of the Workplace Relations Act 1996 (WR Act) to prevent the inclusion
of clauses in certified agreements which purport to require payment of fees for
the provision of bargaining services, and prohibit action by unions to collect
fees which have not been agreed in writing in advance.
Part XA of the WR
Act will be amended to prohibit:
§ unions and employer organisations from
requiring non-members to pay fees for “bargaining services”, except
where an employee has agreed in writing to pay a fee in advance of the
bargaining services being provided (such a fee is defined in the Bill as a
“non-compulsory fee”); and
§ certain discriminatory or injurious
conduct towards a person, because he or she refused to pay a fee claimed by a
union for bargaining services, or because he or she has paid, or proposes to pay
a non-compulsory fee; and
§ unions and employer organisations from
encouraging or inciting others to take discriminatory action against a person
because he or she refused to pay a fee claimed by a union for bargaining
services, or because he or she has paid, or proposes to pay a non-compulsory
fee.
In addition to prohibiting conduct under Part XA, an effect of
these amendments would be that fees for bargaining services can not be included
in certified agreements (by the operation of subsection 170LU(2A)), and any such
clauses in existing certified agreements can be removed by the Australian
Industrial Relations Commission (the AIRC) under section 298Z (which provides
for the removal from certified agreements of “objectionable
provisions”). Subsection 170LU(2A) provides that the AIRC must refuse to
certify an agreement if satisfied that it contains provisions that would require
or permit (or have the effect of requiring or permitting) conduct that would
contravene a provision of Part XA of the WR Act. As a result of these proposed
amendments, the AIRC would be required to refuse to certify an agreement if
satisfied that it contained a provision requiring or purporting to require
people who were not members of an industrial association to pay a fee to an
industrial association for bargaining services.
These amendments are
intended to counteract an emerging practice whereby certain trade unions are
seeking to use the workplace relations system to create an obligation on
non-member employees to pay a fee (without the employee’s consent) for
services in relation to the negotiation of certified agreements. Last year the
Australian Council of Trade Unions adopted a policy that non-union members
should be charged on a fee-for-service basis where ever they benefit from union
activity, and that this should be reflected in bargaining agents fee clauses in
agreements.
The Government considers that such arrangements, in the
absence of individual employee consent, amount to compulsory union fees. Such
clauses typically place an obligation upon the employer to inform employees that
a fee for bargaining services is payable to the union. The clauses purport to
place an obligation on employees to pay the fee to the union. The amount of the
fee varies between being equivalent to, and significantly in excess of, annual
union membership dues.
Union moves to have such clauses included in
certified agreements have recently intensified following a decision of the AIRC,
currently under appeal, which found that such clauses were not able to be
removed from certified agreements as “objectionable provisions”
under section 298Z of the WR Act despite finding that these clauses amount to
coercion of non-members to join the relevant union (Employment Advocate re
Accurate Factory Maintenance Labour Hire Enterprise Agreement 2000-2003 and
other Agreements (PR900919, VP McIntyre, 9 February 2001). The Government
considers that, in the absence of individual agreement, such clauses are
contrary to the freedom of association principles that underpin the current
workplace relations framework. Accordingly, such clauses should not be able to
be included in certified agreements and should not be able to be sought from
non-union members in the absence of prior individual agreement.
The
amendments proposed by this Bill would apply equally to non-member service fees
imposed by trade unions or by industrial associations of employers.
There will be no significant impact on Commonwealth
expenditure.
NOTES ON CLAUSES
1. This is a formal provision specifying the short title of the Act
as the Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act
2001.
2. This clause provides that the provisions of the Act will
commence on the 28th day after receiving Royal Assent.
3. This clause provides that an Act that is specified in a Schedule
is amended as set out in that Schedule, and any other item in a Schedule
operates according to its terms.
SCHEDULE 1 – AMENDMENTS ABOUT
FEES
1.1 This Schedule would amend the
Freedom of Association provisions in Part XA of the Workplace Relations Act
1996 (WR Act) to ensure that:
§ industrial associations cannot demand fees
from non-union members for the provision of services relating to certified
agreements, unless an agreement in writing was made prior to the provision of
such services; and
§ certain discriminatory conduct relating to
decisions to pay or not pay such fees is prohibited.
Item 1 – Subsection 298B(1)
Item 2 –
Subsection 298B(1)
1.2 These items would insert new definitions
into subsection 298B(1) of the WR Act. Section 298B sets out a number of
definitions that are specific to Part XA.
1.3 Item 1 would define
the term “bargaining services” (which are services in respect of
which a “non-compulsory fee” may be agreed) to mean services
provided by or on behalf of an industrial association (i.e. an employer or
employee association) in relation to the negotiation, making, certification,
extension, variation or termination of a certified agreement under Part VIB of
the WR Act.
1.4 Item 2 would define the term “non-compulsory
fee” as being a fee that a person has agreed in writing to pay before
bargaining services are provided by an industrial
association.
Item 3 – At the end of subsection
298L(1)
1.5 Subsections 298K(1) and (2) of the WR Act prohibit
employers and others from engaging in certain discriminatory conduct where the
conduct is engaged in for a prohibited reason, or for reasons that include a
prohibited reason. Subsection 298L(1) lists the reasons which are not allowed
to be the basis for conduct listed in subsections 298K(1) and
(2).
1.6 Item 3 would expand the prohibited reasons listed in
subsection 298L(1) of the WR Act to include two new reasons relating to conduct
taken against employees or independent contractors in respect of fees for
bargaining services.
1.7 Proposed paragraph 298L(1)(o) would
include as a new prohibited reason that an employee or independent contractor
proposes to, has agreed to, or has paid a non-compulsory fee for
services.
1.8 Paragraph 298L(1)(p) includes as a new prohibited
reason that an employee or independent contractor refuses to pay or agree to pay
a fee relating to the provision of bargaining services (whether of not the fee
is a non-compulsory fee).
1.9 Section 298Q prohibits certain conduct by industrial associations.
The section prohibits an industrial association from taking or threatening
to take action which has the effect of prejudicing a person in his or her
employment or possible employment in order to coerce the person to join in
industrial action or to dissuade or prevent the person from seeking a secret
ballot under an industrial law.
1.10 Item 4 proposes to include an
additional prohibition on industrial associations acting against employees,
independent contractors and others.
1.11 Proposed subsection
298Q(2) would prohibit industrial associations from taking or threatening to
take action that has the effect of prejudicing a person in his or her employment
or possible employment, and from advising, encouraging or inciting another
person to take such action, if the reason for the action or conduct is that the
person either proposes to, has agreed to, or has paid a non-compulsory fee, or
refused to pay or agree to pay a fee (whether or not a non-compulsory fee) in
exchange for the provision of bargaining services.
1.12 Item 5 would insert a new section following section
298Q.
1.13 Proposed subsection 298QA(1) would prohibit an
industrial association from demanding or receiving fees for bargaining services
from a person who is not a member of the association.
1.14 Proposed
subsection 298QA(2) would provide exceptions to the general rule in subsection
298QA(1). Industrial associations would not be prohibited from demanding or
receiving fees that are either “non-compulsory fees” (the proposed
definition of this term is contained in Item 2 of this Schedule), or membership
dues from a person joining the association.
1.15 Proposed subsection
298QA(3) would define the term “demand” to include purported
demands, and actions that have the effect of demanding or which purport to have
that effect.
1.16 Section 298S prohibits certain direct and indirect discriminatory
conduct against independent contractors by industrial associations.
1.17 The section uses the concept of an “eligible person” to
refer to an independent contractor. The term is defined in subsection
298S(1).
1.18 Subsection 298S(2) prohibits an industrial association from
advising, inciting or encouraging another person to take discriminatory action
against an eligible person because the eligible person is not a member of an
industrial association.
1.19 Under subsection 298S(2) an industrial
association is also prohibited from taking industrial action against an employer
to coerce the employer to take discriminatory action against an eligible person
because the eligible person is not a member of an industrial
association.
1.20 Under subsection 298S(2) an industrial association is
also prohibited from taking industrial action directly against an eligible
person to coerce him or her to join an industrial association.
1.21 Item
6 would insert two additional subsections into section 298S. Proposed
subsection 298S(3) would prohibit an industrial association from engaging in
conduct of the type outlined in subsection 298S(2) for new “prohibited
reasons”. Proposed subsection 298S(4) would define the new
“prohibited reasons” for the purposes of subsection 298S(3). The
new prohibited reasons are:
§ an eligible person proposes to, has agreed
to, or has paid a non-compulsory fee;
and
§ an eligible person refuses to pay or agree
to pay a fee relating to the provision of bargaining services (whether or not a
non-compulsory fee).
Part 2 – Application provisions etc.
1.22 Part 2 contains application provisions for the amendments contained
in Part 1 of the Schedule.
1.23 Item 7 would define the term “Principal Act” for the
purposes of the Part as the WR Act.
1.24 Subsection 170LU(2A) provides that the Commission must refuse to
certify an agreement if the Commission is satisfied that it contains provisions
that would require or permit (or have the effect of requiring or permitting)
conduct that would contravene a provision of Part XA of the WR Act.
1.25 Item 8 would provide that, for the purposes of section170LU (which
relates to the certification of agreements by the Commission), the amendments
proposed by Part 1 of the Schedule have effect from commencement, irrespective
of whether an application for certification of an agreement was made before or
after commencement of this Act.
1.26 Section 298QA (to be inserted by Item 5) applies to demands or
receipts of fees on or after the commencement of Item 5. (New section 298QA
would prohibit an industrial association from demanding and receiving payment of
fees for bargaining services from people who are not members of the association,
except where the fees concerned are non-compulsory fees or membership
fees.)
1.27 Item 10 would clarify that the amendments proposed by Part 1 of the
Schedule do not affect payments received by industrial associations before
commencement of the Part.