Workplace relations legislation


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Workplace Relations Legislation: Bills Passed, Rejected or Lapsed, 38th 40th Parliaments (1996-2004)

E-Brief: Online Only issued 8 July 2005

Steve O'Neill
Economics, Commerce and Industrial Relations Group

Introduction

The Coalition Government s newly elected majority in the Senate from 1 July 2005 will allow it to pass legislation previously blocked by the Senate. Although the Coalition Government held 35 seats in the Senate (of 76 seats) in the 40th Parliament, support from 4 senators: either from the ALP (28 seats), the Australian Democrats (7 seats), Greens (2 seats) or Independents (4 seats) was needed to pass legislation. The Coalition had not held a Senate majority since assuming government in 1996, but it s successive majorities in the House of Representatives meant that no government workplace relations bill was ever rejected there; thus the focus of this brief is the Senate. The Prime Minister, the Hon John Howard reflected on the position that the Government now enjoys following the 2004 federal election resulting in the Coalition Government holding 39 Senate seats in its own right:

with the favourable election outcome in the Senate, we are now in a position to drive the industrial relations reform process further in ways consistent with liberal philosophy. (1)

In response to the Government s foreshadowed introduction of further workplace relations reforms leading employer groups proposed new federal labour law models to the Government from the latter part of 2004.(2) The Workplace Relations Minister, the Hon Kevin Andrews set out a new model for national labour law in an address to the Committee for Economic Development of Australia on 25 February 2005 which proposed to extend the scope of the federal jurisdiction over State labour laws. Specific detail on this model was provided by the Prime Minister, the Hon John Howard on 26 May 2005 following approval by Cabinet.(3)

This brief, however, cites all of the workplace relations bills and acts of the 38th to 40th Parliaments in order to ascertain which proposals were passed, rejected or lapsed. Part of the rationale for the forthcoming industrial law changes is that the Senate had previously blocked these reforms, in particular, bills dealing with unfair dismissal, and it is useful to understand which measures were blocked, passed or lapsed (at the time a federal election was called in 1998, 2001 and 2004).

Opposition to and rejection of unfair dismissal bills

The Hon Tony Abbott as a former Minister for Employment and Workplace Relations commented on the ALP opposing reforms to unfair dismissal legislation, (these are bills aimed at amending the Workplace Relations Act s termination of employment provisions (at Part V1A Division 3). He cited 21 occasions where the Opposition opposed reform to the dismissal provisions on 22 October 2002 in the statement (re: the small business exemption bill the Workplace Relations Amendment (Fair Termination) Bill 2002 [No.2]):

This government has no intention of taking the unfair dismissal regime off larger businesses although there are certainly some further improvements that we would like to make to the way unfair dismissal works generally but we do believe that small business is different. Small business is more like a family than an institution. Small businesses, generally speaking, do not have the complex structures in place to carry out the kinds of formal requirements that the unfair dismissal regime has generally imposed upon them. That is why small business deserves an exemption This (the small business dismissal exemption bill) has become one of those bits of watershed legislation. It has become something of a political icon. This government has now proposed, in one or other house of this Parliament, to improve the unfair dismissal laws 21 times, and we have been opposed by the ALP 21 times.(4)

The small dismissal exemption refers to a dismissed employee (eg dismissed for lateness) making an application for an initial conciliation hearing with an industrial tribunal for reinstatement, or for compensation in lieu of reinstatement to the former position or similar settlement. The small business exemption of the bill under discussion by Mr Abbott would have meant that a federal award employee would need to have worked in an (incorporated or constitutionally connected) business with 20 employees or more, otherwise the employee would not have the legal standing to make such an application, in this case, before the Australian Industrial Relations Commission (the Commission). Put another way, the small business employer would be, as existing staff departed and new staff replaced them, exempted from unfair dismissal claims of employees.

The count of the occasions where the Opposition opposed dismissal reform begs the question: which particular measures were opposed and which were rejected by the Senate? It is assumed that Mr Abbott s counts of opposition include two attempts to pass the small business exemption measure by regulation (in 1997 and 1998, both disallowed by the Senate(5)). The following unfair dismissal bills would have to be included in Mr Abbott s tally and it is important to note that his comments appear to encapsulate ALP opposition to dismissal law amendments generally and the small business exemption measures specifically. (Hereon a rejection by the Senate can also mean effectively rejected: where the House of Representatives disagrees with Senate amendments to the Bill in question; refer to section 57 of the Australian Constitution):

Workplace Relations Amendment Bill 1997 (rejected by Senate)

Workplace Relations Amendment Bill 1997 [No.2] (rejected by Senate)

Workplace Relations Amendment (Unfair Dismissals) Bill 1998 (rejected by Senate)

Workplace Relations Amendment (Unfair Dismissals) Bill 1998 [No.2] (rejected by Senate)

Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999 (lapsed)

Workplace Relations and Other Legislation Amendment (Small Business and
Other Measures) Bill 2001
(lapsed)

Workplace Relations Amendment (Termination of Employment) Bill 2000 (passed by Senate)

Workplace Relations Amendment (Fair Dismissal) Bill 2002 (rejected by Senate)

Workplace Relations Amendment (Fair Dismissal) Bill 2002 [No 2] (rejected by Senate)

It can be seen that there were 9 bills and 2 regulations amounting to 11 dismissal instruments which the ALP opposed which, going before both chambers, constituted ultimately 22 counts of opposition. This is because the Bill which Mr Abbott was discussing, the Workplace Relations Amendment (Fair Dismissal) Bill 2002 [No 2] would be later rejected both by the ALP in the Senate and by the Senate, increasing 21 counts of ALP opposition to 22 counts of opposition.

However, from August 2004 the next occasion for debate on the (same) small business exemption in the Workplace Relations Amendment (Fair Dismissal) Bill 2004 (reintroduced to the 40th Parliament after the Workplace Relations Amendment (Fair Dismissal) Bill 2002 had been rejected twice), the occasions that the small business dismissal exemption bill had been before the Parliament and/or rejected by the Senate appeared to have grown from 21 times to 40 times or more, evident in the following observations:

This legislation (the small business exemption) has been to this House more than 40 times.(6)

And:

There is one piece that has been knocked back 44 times; we know that.(7)

Or, as reported in the media:

One piece of legislation, exempting small business from unfair dismissal laws, has been defeated in the Senate at least 40 times.(8)

Yet the tallies of 40 or more rejections or considerations, however worded, by either House, of the small business exemption appear to include other dismissal bills, that is, bills which were to amend the dismissal provisions more generally, including one bill which actually passed the Senate, as well as other workplace relations bills not dealing with dismissal.

For example, one dismissal measure was the workplace relations regulation preventing casual employees from accessing the WR Act s dismissal provisions unless they had served periods of 12 months or more with the one employer. The exercise was initially a restoration of workplace relations regulations struck down by the Federal Court in 2001.(9) This proposal might be included as a dismissal measure opposed by the ALP, even though the regulation was subsequently allowed by the Senate (and the House of Representatives) and redrafted as a bill in 2002 and passed with the support of the Australian Democrats in the following year, with some additional provisions: Workplace Relations Amendment (Fair Termination) Act 2003.

Another dismissal measure was the proposal to extend the jurisdiction of the Commonwealth over the States in respect of corporations and dismissal law (introduced after the small dismissal exemption was rejected twice in the 40th Parliament), with this measure also to be rejected twice over 2003-04: Workplace Relations Amendment (Termination of Employment) Bill 2002 and Workplace Relations Amendment
(Termination of Employment) Bill 2002 [No 2]
.

However, none of this legislation: Workplace Relations Amendment (Fair Termination) Act 2003, Workplace Relations Amendment (Termination of Employment) Bill 2002 nor Workplace Relations Amendment (Termination of Employment) Bill 2002 [No 2] sought to exempt small business from the dismissal law. There were also other workplace relations bills introduced to the Parliament over this period but they did not deal with the small business exemption or unfair dismissals either: Workplace Relations Amendment
(Prohibition of Compulsory Union Fees) Bill 2002
, Workplace Relations Amendment
(Secret Ballots for Protected Action) Bill 2002
, Workplace Relations Amendment
(Choice in Award Coverage) Bill 2002
as well as a number of other bills none of which addressed dismissal, much less the small business exemption.

The Workplace Relations Amendment (Fair Dismissal) Bill 2004 which was, as noted, the next bill to seek a small business exemption, lapsed at the end of the 40th Parliament in 2004. It was re-introduced after the 2004 federal election to the 41st Parliament in December 2004 with the same title: Workplace Relations Amendment (Fair Dismissal) Bill 2004. It is likely to be amended by the Government following the Prime Minister s statement on industrial relations(10) which confirmed that the federal unfair dismissal law would in future exclude businesses employing less than 100 employees and displace large parts of the State dismissal jurisdiction. This Bill in its current form may even be set aside and be replaced.

In summary, the allegation that the Senate has rejected the Government s small business exemption proposal 40 times is a fiction. The government measures which have sought a small business exemption and were rejected by the Senate over the 38th to 40th Parliaments amount to 8 rejections by the Senate and are:

Two attempts via regulations disallowed(11) although the first of these merely imposed a 12 month qualifying period on new starters in federally covered small businesses at which time their dismissal rights would resume. Other small business exemption rejections include:

Workplace Relations Amendment Bill 1997

Workplace Relations Amendment Bill 1997 [No.2]

Workplace Relations Amendment (Unfair Dismissals) Bill 1998

Workplace Relations Amendment (Unfair Dismissals) Bill 1998 [No.2]

Workplace Relations Amendment (Fair Dismissal) Bill 2002

Workplace Relations Amendment (Fair Dismissal) Bill 2002 [No 2]

It is also useful to note that Senator Murray (Australian Democrats workplace relations spokesperson) takes a different view to the Government on workplace relations bills passed by the Senate and, particularly, of the bills rejected over the terms of the Coalition Government:

18 IR bills have passed the Senate during the eight plus years of the Howard Government; one a Coalition/Labor bill, six passed by the Coalition/Labor/Democrats; and, 11 negotiated and amended by the Democrats and opposed by Labor. The Democrats have often moved substantial amendments protecting the rights of workers. 13 bills have not passed, but because they repeat previous bills, those 13 in fact reflect just 4 proposals.

The most significant bill passed became the Workplace Relations Act 1996. That bill proposed a further radical overhaul of IR, building on the first wave reforms of the Labor Government in 1993. The Democrats negotiated 176 amendments to restore a much fairer balance between the rights of employers, employees and unions.(12)

A table attached to Senator Murray s statement indicates whether bills passed with Democrat support or, less frequently, with ALP support to become acts. Note that the tally of bills and acts in this Brief differs slightly with those above. It might be also useful to note that the Australian Industry Group has presented its view on wr acts which passed with or without their original reform objectives (see Appendix 1). A number of bills amended the WR Act in a consequential way, for example following new public service legislation in 1999 such amendments are not included in this Brief.

Sources

This Brief collates, in table form, government workplace legislation which aimed to amend the principal federal legislative instrument, the Workplace Relations Act 1996, a labyrinthine exercise. The table correlates bills in broad chronological order but where appropriate, groups separate bills where these have a similar purpose/title. For example, the table groups the same or similar bill where this has been rejected (or lapsed) in one Parliament but was reintroduced and passed in a later Parliament. Three bills and one act all under the generic title of Workplace Relations Amendment (Prohibition of Compulsory Union Fees) over 2001 to 2004 illustrate the scheme of the table. The table shows that a bill under this title lapsed in 2001, was rejected by the Senate in 2002, was passed as an act in 2003. The Bill passed the Senate after having been reintroduced later in 2002 with debate later influenced by a decision of the Commission in early 2003 confirming that union bargaining fees could not be included in federal certified agreements. The Democrats decided to support the Bill which banned such fees: (Workplace Relations Amendment
(Prohibition of Compulsory Union Fees) Act 2003
).

A fourth bill with a similar title was reintroduced in 2004, as the Government sought to extend the 2003 Act s provisions over the States. The 2004 bill lapsed when the 2004 federal election was called. This brief does not seek to explain the changes in political coalitions or change in views which may result in rejected bills being passed subsequently, although Senator Murray s account and table is useful for this(13), as are second reading debates of each bill in the Senate.

The Parliament of Australia website (http://www.aph.gov.au/Bills) provides the stages of each Bill (current and old bills) moving through the Parliament including through reviews by Senate legislation committees, where relevant. The role of Senate committees and the Senate s role in passing bills or rejecting them is also summarised in notes on the administration of the Senate, found on the parliamentary website.(14) Bills and acts below are linked to the Australian Workplace website (http://www.workplace.gov.au/) to provide an outline of the Bill or Act, its text, explanatory memorandum and the bill s second reading.(15)

Table: WR Bills and Acts 38th 40th Parliaments

Bill rejected by Senate

Bill rejected twice

Bill lapsed

Bill passed as Act

     

Workplace Relations
and Other Legislation
Amendment Act 1996

     

Workplace Relations
and Other Legislation
Amendment Act
(No.2) 1996

     

Workplace Relations
and Other Legislation
Amendment Act 1997

Workplace Relations
Amendment Bill
1997

Workplace Relations
Amendment Bill
1997 [No.2]

   
   

Workplace Relations
and Other
Legislation
Amendment
(Superannuation)
Bill 1998

 

Workplace Relations
Legislation
Amendment (Youth
Employment) Bill
1998

   

Workplace Relations
Legislation
Amendment (Youth
Employment) Act
1999

Workplace Relations
Amendment (Unfair
Dismissals) Bill
1998

Workplace Relations
Amendment (Unfair
Dismissals) Bill
1998 [No.2]

   
   

Workplace Relations
and Other
Legislation
Amendment
(Superannuation)
Bill 1998
(sic)

 

 

Workplace Relations
Legislation
Amendment (More
Jobs, Better Pay)
Bill 1999

 
   

Workplace Relations
Amendment Bill
2000

 
   

Workplace Relations
Amendment (Secret
Ballots for Protected
Action) Bill 2000

 
   

Workplace Relations
Amendment
(Australian
Workplace
Agreements
Procedures) Bill
2000

 
     

Workplace Relations
Amendment (Tallies)
Act 2001

     

Workplace Relations
Amendment
(Termination of
Employment) Act
2001

Workplace Relations
Amendment
(Prohibition of
Compulsory Union
Fees) Bill 2002

 

Workplace Relations
Amendment
(Prohibition of
Compulsory Union
Fees) Bill 2001

Workplace Relations
Amendment
(Extended
Prohibition of
Compulsory Union
Fees) Bill 2004

Workplace Relations
Amendment
(Prohibition of
Compulsory Union
Fees) Act 2003

   

Workplace Relations
Amendment
(Transmission of
Business) Bill 2001

Workplace Relations
Amendment
(Transmission of
Business) Act 2004

   

Workplace Relations
(Minimum
Entitlements for
Victorian Workers)
Bill 2001

Workplace Relations
Amendment
(Improved Protection
for Victorian
Workers) Act 2003

   

Workplace Relations
and Other
Legislation
Amendment (Small
Business and Other
Measures) Bill 2001

 
   

Workplace Relations
(Registered
Organisations) Bill
2001

Workplace Relations
Amendment
(Registration and
Accountability of
Organisations) Act
2002

   

Workplace Relations
(Registered
Organisations)
(Consequential
Provisions) Bill
2001

Workplace Relations
Legislation
Amendment
(Registration and
Accountability of
Organisations)
(Consequential
Provisions) Act 2002

     

Workplace Relations
Legislation
Amendment Act 2002


Workplace Relations
Amendment (Secret
Ballots for Protected
Action) Bill 2002

Workplace Relations
Amendment (Secret
Ballots for Protected
Action) Bill 2002
[No. 2]

   
     

Workplace Relations
Amendment (Genuine
Bargaining) Act 2002

     

Workplace Relations
Amendment (Fair
Termination) Act
2003

     

Workplace Relations
Amendment
(Protection for
Emergency
Management
Volunteers) Act 2003

Workplace Relations
Amendment
(Codifying
Contempt Offences)
Bill 2003

   

Workplace Relations
Amendment
(Codifying Contempt
Offences) Act 2004

     

Workplace Relations
Amendment
(Improved Remedies
for Unprotected
Action) Act 2004

   

Workplace Relations
Amendment (Choice
in Award Coverage)
Bill 2002

 

 

Workplace Relations
Amendment (Award
Simplification) Bill
2002

 
   

Workplace Relations
Amendment (Better
Bargaining) Bill
2003

 

Workplace Relations
Amendment (Fair
Dismissal) Bill 2002

Workplace Relations
Amendment (Fair
Dismissal) Bill 2002
[No 2]

   

Workplace Relations
Amendment
(Termination of
Employment) Bill
2002

Workplace Relations
Amendment
(Termination of
Employment) Bill
2002 [No 2]

   
   

Workplace Relations
Amendment
(Protecting the Low
Paid) Bill 2003

 
   

Building and
Construction
Industry
Improvement Bill
2003

 
   

Building and
Construction
Industry
Improvement
(Consequential and
Transitional) Bill
2003

 

Workplace Relations
Amendment
(Compliance with
Court and Tribunal
Orders) Bill 2003

     
   

Workplace Relations
Amendment (Fair
Dismissal) Bill 2004

 
   

Workplace Relations
Amendment
(Protecting Small
Business
Employment) Bill
2004

 
   

Workplace Relations
Amendment
(Simplifying
Agreement-making)
Bill 2004

 

14 bills rejected inc 3 bills which later passed

5 bills rejected twice

22 bills lapsed

17 acts inc 3 bills previously rejected


Conclusion

Between the 38th and 40th parliaments, seventeen government workplace relations bills were passed as acts including three bills which were rejected a first time but passed in the form of the second or re-committed bill, five bills were rejected twice and became double dissolution triggers; one Bill was negatived once but not for a second time (meaning that fourteen bills were negatived or effectively negatived where the House disagreed with Senate amendments), while the majority, 22 workplace relations bills were not rejected by the Senate but lapsed at the time a subsequent federal election was called.

Bills rejected initially, but passed subsequently included bills dealing with: junior pay rates, union bargaining fees, transmission of business, registration of organisations, minimum entitlements for Victorian workers, contempt offences and genuine bargaining/protected action. Of the five bills (effectively) rejected twice by the Senate, three were small business exemption from dismissal bills (1997, 1998 and 2002), one was a small business dismissal retention and extension bill and one related to secret ballots before industrial action. (See Appendix 2 for all acts, rejections and lapses and a brief text of the bill from the Parliamentary website: Old Bills).

The passage of workplace relations bills and acts over the 38th, 39th and 40th parliaments indicates:

38th Parliament

        Three bills were passed as acts; one bill was rejected by the Senate twice; one bill lapsed.

39th Parliament

        Three bills were passed as acts including one Bill rejected by the Senate, reintroduced and passed by the Senate and one bill was rejected by the Senate twice; eleven bills lapsed.

40th Parliament

        Eleven bills were passed as acts including one bill which was first rejected by the Senate then recommitted and passed while another bill was reintroduced after having been first rejected by the Senate, and subsequently passed; three bills were rejected twice by the Senate, one bill was rejected once; ten bills lapsed.


APPENDIX 1: AiG view on acts which passed or did not pass with original objective

In respect of the workplace relations bills that were passed by the Senate, the Australian Industry Group has categorised these acts into two groups: bills that achieved the reform objectives of the legislation and bills that did not achieve the reform objectives in the original version of the legislation:

Various workplace relations reform bills were enacted during the last term, or this term, of Government, all of which were amended as a result of negotiations between the Government and Opposition parties. These Acts can be placed into two categories:

Those where the reform objectives of the original version of the bill were achieved; and

Those where the reform objectives of the original version of the bill were not achieved.

There is plenty of scope for debate about which category each of the Acts should be placed in. An assessment by Ai Group places the Acts in the following categories:

Those where the reform objectives of the original version of the bill were achieved:

Workplace Relations Amendment (Improved Protection for Victorian Workers) Act 2003;

Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002;

Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act 2003;

Workplace Relations Amendment (Fair Termination) Act 2003;

Workplace Relations Amendment (Protection for Emergency Management Volunteers) Act 2003;

Workplace Relations Amendment (Agreement Validation) Act 2004.

Those where the reform objectives of the original version of the bill were not achieved:

Workplace Relations Amendment (Genuine Bargaining) Act 2002;

Workplace Relations Amendment (Transmission of Business) Act 2004;

Workplace Relations Amendment (Improved Remedies for Unprotected Action) Act 2004;

Workplace Relations Amendment (Codification of Contempt Offences) Act 2004.(16)

APPENDIX 2 - Description of bill and whether/when passed, rejected or lapsed

Endnotes

  1. The Hon John Howard, Reflections on Australian Federalism , 11 April 2005.
  2. PM urges to go hard on IR reform , The Australian, 12 October 2004.
  3. The Hon Kevin Andrews, Where do we want workplace relations to be in five years time? address to the Committee for the Economic Development of Australia, 25 February 2005. Note also the Prime Ministerial Statement (with Kevin Andrews) on pending workplace relations legislation framework by the Hon John Howard to the House of Representatives A New Workplace Relations System: A plan for a modern workplace, 26 May 2005 .
  4. The Hon Tony Abbot, Workplace Relations Amendment (Fair Termination) Bill 2002 [No.2], House of Representatives, Hansard, 22 October 2002, p. 8268.
  5. SR No.101 of 1997, 30th April 1997, disallowed by the Senate on 26 June 1997 and SR No. 338 of 1998, 17 December 1998, disallowed by the Senate on 16 February 1999. See Marilyn Pittard: Unfair Dismissal Laws; the Problem of Application to Small Business , Australian Journal of Labour Law, v. 15(2), September 2002, from p.156.
  6. Don Randall MP in the second reading debate of the Workplace Relations Amendment (Fair Dismissal) Bill 2004, House of Representatives Hansard,12 August 2004, p. 2898.
  7. Senator Eric Abetz, Senate Estimates hearings of the Employment, Workplace Relations and Education Committee, Committee Hansard, 17 February 2005, p.23.
  8. M. Priest, Employers drive home reform message , The Australian Financial Review, 11 October 2004.
  9. Hamzy v Tricon International Restaurants trading as KFC [2001] FCA 1589, 16 November 2001.
  10. The Hon John Howard to the House of Representatives A New Workplace Relations System: A plan for a modern workplace, 26 May 2005 .
  11. See endnote 5.
  12. Senator Andrew Murray, Workplace Relations Democrat Record on Workplace Relations: Australian Democrats, 7 September 2004.
  13. Ibid.
  14. A note on the role of Senate Committees can be found at: http://www.aph.gov.au/Senate/pubs/briefs/brief4.htm, and on the role of the Senate and Legislation at: http://www.aph.gov.au/Senate/pubs/briefs/brief8.htm. Suffice to say that over the 38th to 40th parliaments, the Liberal-National Coalition held majorities in the House of Representatives allowing it to pass bills in that House. The Coalition was also the largest single block in the Senate over this time, but without an absolute majority. It was usually the largest contingent on Senate Legislation Committees, but again without majority numbers in these.
  15. DEWR, www.workplace.gov.au under Legislation.
  16. Australian Industry Group, Making the Australian Economy Work Better Workplace Relations, March 2005, pp.24-25.

For copyright reasons some linked items are only available to Members of Parliament.

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