Bills Digest No. 153 2000-01
Workplace Relations (Registered Organisations) (Consequential Provisions)
Bill 2001
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Workplace Relations (Registered Organisations) (Consequential
Provisions) Bill 2001
Date Introduced: 23
May 2001
House: House of Representatives
Portfolio: Employment,
Workplace Relations and Small Business
Commencement: The
major provisions outlined in the Digest come into operation on the day
to be fixed by proclamation. However, if those provisions do not commence
within a period of six months from the day on which the Bill receives
Royal Assent they will be taken to have commenced on the day after the
end of that period.
The purpose of the Workplace Relations
(Registered Organisations) (Consequential Provisions) Bill (the Consequential
Provisions Bill) is to facilitate the transfer of registered organisations
from the Workplace Relations Act 1996 (WR Act) to the proposed
Workplace Relations (Registered Organisations) Act 2001 (the proposed
RO Act). The Bill also repeals provisions of the WR Act which are to be
addressed in the proposed RO Act. As at 30 June 2000, there were 115 registered
organisations under the WR Act.(1)
The Consequential Provisions Bill ensures ongoing registration
of organisations as these were at the time that the relevant WR Act registration
provisions are to be repealed, as well as performing a bridging role in
respect of many other issues and provisions. The Consequential Provisions
Bill gives effect to matters and proceedings extant under WR Act provisions
proposed for repeal. Such matters may include (but not be limited) to:
applications to conduct amalgamations, disamalgamations and elections;
applications concerning representation orders; applications to register
or vary rules and to meet obligations imposed by the relevant provisions
of the WR Act, such as the obligation to report on finances. Thus, where
a union has applied for the conduct of an election under the provisions
of the WR Act for example and those provisions are repealed while the
election is under way, this Bill will allow that election to continue
under the WR Act as if the relevant provisions had not been repealed.
In future, the legislative provisions governing these matters will be
addressed under the proposed RO Act.
The matters to be addressed in the proposed RO Act will
cover the ground substantially addressed under Parts IX and X of the WR
Act. As well as effecting the transfer of registered organisations from
the WR Act to the proposed RO Act, this Bill repeals Parts IX and
X of the WR Act, as well as certain other provisions, for example sec.
118A of the WR Act (re demarcation disputes).
Matters which have commenced under WR Act provisions
proposed for repeal, can be continued under this Bill, although in areas
where the proposed RO Act adds provisions, this Bill generally prevents
those new provisions being relied under proceedings commenced under provisions
proposed for repeal of the WR Act. The Bill also amends other Acts which
contain a reference to those provisions proposed for repeal in the WR
Act and replaces these with a reference to the relevant provision under
the proposed RO Act.
The background to the Consequential Provisions Bill is
substantially provided in Bills
Digest No. 130 2000-01 which deals with provisions of the Workplace
Relations (Registered Organisations) Bill 2001 (the RO Bill). This Bill
was introduced into the House of Representatives on 4 April 2001.
The Senate Employment, Workplace Relations, Small Business
and Education Committee commenced an inquiry into the RO Bill. Submissions
on the Bill were invited and hearings were held on 18 May 2001 and 24
May 2001.
The purpose of the RO Bill is to effect a streamlining
of the WR Act by removing provisions in that Act which deal with the registration
of organisations, (unions or employer associations) as well as broadening
the criteria for deregistration. The grounds for deregistration include
the current WR Act provisions pertaining to industrial lawlessness), but
will be will widened to include:
- breaches of the WR Act's freedom of association provisions
- breaches of sec 127 orders under the WR Act (to cease industrial action),
and
- action brought in pursuit of 'strike pay'.
As noted, this Bill also effects the transfer of provisions
governing the resolution of demarcation disputes by the Australian Industrial
Relations Commission (the AIRC) from of the WR Act to the proposed RO
Act.
The AIRC resolves demarcation disputes by, inter alia,
making representation orders of the organisations in dispute.(2)
Such orders may 'carve out' a section of an organisation's membership
and award the coverage of those employees to another organisation, in
which case a re-write of the eligibility rules of each organisation will
be required (at the least).
These dispute resolution processes have not been usually
associated with the registration of organisations. They are to be included
in the proposed RO Act so that the WR Act will in future be confined to
employment matters. After commencement of the RO Act, the WR Act will
deal with the residual issues such as termination of employment, awards
and agreement-making after the WR Act provisions dealing with the registration
of organisations and related provisions are repealed.
Schedule 1 of the Bill contains the main transitional
provisions ensuring the continued registration of organisations from the
WR Act to the proposed RO Act. Also, proceedings commenced under provisions
of the WR Act proposed for repeal also continue to have effect, in some
cases under the existing provisions of the WR Act (as if they were not
repealed).
Items 2 to 5 in Part 1 of Schedule
1 contain the main transitional provisions which allow for orders,
certain obligations, terms of office and proceedings commenced under repealed
provisions of the WR Act to continue. (Schedule 2, below, repeals
certain WR Act provisions). Item 6 provides that where a repealed
provision of the WR Act is saved by this Bill, any provisions or regulations
made under the repealed provision required for the effective operation
of the repealed provision are also saved. Items 8 and 9 respectively
allow the President of the AIRC to give directions and the Federal Court
to make orders to resolve any difficulty concerning the transitional arrangements.
Item 11 in Part 2 of the Schedule deems
the register of organisations maintained by the Australian Industrial
Registry under the WR Act, as in force immediately before commencement
of the proposed Workplace Relations (Registered Organisations) Act 2001
to be the register of organisations required under proposed clause 11
of that Act. Item 15 affirms that an organisation registered under
the WR Act immediately before commencement of the RO Act, is taken to
be registered under the relevant provision of the proposed RO Act. Item
16 ensures that proceedings or orders in relation to representational
matters of organisations under the WR Act continue under the proposed
RO Act, and this will include orders affecting newly registered organisations,
ie an organisation registered following a successful disamalgamation application.
Items 17 to 20 deal with transitional provisions
for organisations which are amalgamating. Item 21 allows applications
to disamalgamate under the WR Act to continue, but certain additional
provisions of the proposed RO Act relating to disamalgamation will apply.
Item 22 allows a newly registered organisation to become respondent
to future certified agreements of the amalgamated organisation for a period
of 5 years after disamalgamation. Items 23 and 24 also deal
with aspects of disamalgamation. Item 25 addresses cancellation
of registration and provides that an application for deregistration made
under the WR Act cannot rely on the additional grounds for deregistration
(ie freedom of association breaches) available under the proposed RO Act.
Item 27 of Part 3 prevents the Registrar
from varying the rules of an organisation to bring them into conformity
with clause 154 of the proposed RO Act over an interim period (6 months).
Item 28 requires the Registrar to review the rules as soon as practicable
after the interim period. Item 29 allows such rules as are in place
which allow an extension of a term of office (up to 12 months) so that
the incumbent official may reach retiring age, to continue as in force
under the WR Act. The review of rules will require such provisions to
be removed under the proposed RO Act.
Item 33 of Part 4 allows a notice of resignation
made under the WR Act before commencement of the RO Act, the notice continues
under the WR Act. Item 34 allows an organisation to pursue a recovery
of membership arrears for a period of 12 months after commencement of
Consequential Provisions Bill; after that time the Bill extinguishes the
debt.
Item 35 of Part 5 provides that where the
process for the conduct of an election has commenced under the WR Act,
the WR Act provisions in relation to that step apply; however subsequent
steps of that election which are taken after commencement of the RO Act
are to be conducted under provisions of the proposed RO Act. Item 37
allow the conduct of an inquiry into an election under the WR Act, where
an inquiry has commenced under that Act. However Item 38 requires
that any subsequent Federal Court orders concerning the inquiry be made
under the proposed RO Act. Items 40 to 42 deal with applications
to hold office and deal with applicants who have been convicted of prescribed
offences, the definition of prescribed offences and certain persons disqualified
from holding office as a result of a conviction.
Item 43 under Part 6 of Schedule 1
provides that the register of members which organisations are required
to keep under the WR Act, shall be the register at the commencement of
the proposed RO Act. Item 45 stipulates that that the accounting
requirements which organisations are required to adhere to under Part
3 of Chapter 8 of the proposed RO Act, shall have application from the
financial year after commencement of the new reporting guidelines. Item
46 deems accounts of an organisation or branch become the accounts
of the organisation or a reporting unit under the proposed RO Act. Item
47 ensures that members have access to the financial records of their
organisation over the interim period from the commencement of the RO Act
to the first financial year which organisations are required to report
under. Item 48 ensures that the provisions of the WR Act dealing
with accounts, audit and reports (Division 11 of Part IX) continue to
have affect over the transition period. It also allows investigations
commenced by the Industrial Registrar under s.280 of the WR Act to continue.
Item 49 ensures that the Industrial Registrar is able to monitor
compliance with the financial reporting provisions of the WR Act during
the transition period and where necessary invoke the civil penalties provided
for under the proposed RO Act.
Item 54 of Part 7 ensures that delegations
made under repealed provisions of the WR Act continue to have effect.
Item 55 allows regulations to be made of a transitional nature
relating either to the enactment of the RO Act, or the repeal of certain
provisions of the WR Act.
Schedule 2 removes certain provisions (for example,
Divisions 1A to 11 of Part IX of the WR Act) from the WR Act and amends
the titles of remaining Parts of the WR Act.
Schedule 3 amends other Acts to replace a reference
to the Workplace Relations Act 1996 with a reference to the Workplace
Relations (Registered Organisations) Act 2001 or add a reference in
those Acts to the Workplace Relations (Registered Organisations) Act
2001. The Acts to be so amended include:
Builders Labourers' Federation (Cancellation of Registration - Consequential
Provisions) Act 1986
Commonwealth Authorities and Companies Act 1997
Crimes Act 1914
Disability Discrimination Act 1992
Equal Opportunity for Women in the Workplace Act 1999
Federal Court of Australia Act 1976
Human Rights and Equal Opportunity Commission Act
1986
Insurance Act 1973
Jurisdiction of Courts (Cross-vesting) Act 1987
Life Insurance Act 1995
Navigation Act 1912
Petroleum (Submerged Lands) Act 1967
Sex Discrimination Act 1984
Superannuation Act 1976
Superannuation Industry (Supervision) Act 1993
United States Naval Communication Station (Civilian
Employees) Act 1968
The Workplace Relations (Registered Organisations) (Consequential
Provisions) Bill 2001 will provide an important role for the smooth transition
of the registration of organisations currently registered under the WR
Act to the proposed Workplace Relations (Registered Organisations)
Act. A similar role was performed by the Industrial Relations (Consequential
Provisions) Act 1988 in transferring the registration of organisations
from the Conciliation and Arbitration Act 1904 to the Industrial
Relations Act 1988.
The broadened grounds for deregistering an organisation
under the proposed RO Act have been noted. The aims and purposes of this
proposed Act are worth considering. The traditional grounds for deregistration
of an organisation (those which might be grouped as under the heading
of industrial lawlessness) as well as additional grounds proposed in the
RO Bill (the pursuit of strike pay, disregarding orders to cease industrial
action and freedom of association breaches) have been noted.
However questions are inevitably raised in respect of
the traditional deregistration criteria and the new provisions introduced
in the RO Bill. Certain behaviour which once may have invoked deregistration
proceedings have been made lawful under both the WR Act and its predecessor.
Traditionally, the principal criteria for deregistration have been formulated
around acts of industrial lawlessness (protracted and repeated industrial
actions), and these criteria have been applied against the behaviour of
the Builders Labourers Federation and the Australian Federation of Air
Pilots in the 1980s. Under enterprise bargaining, such behaviour is difficult
to proscribe, as industrial action under correctly initiated bargaining
processes is lawful (since 1994).
Thus, unions may take industrial action when pursuing
wage claims. Employers may resort to lock-outs in the course of forcing
employees to accept his/her terms - both forms of action considered unacceptable
behaviour under the old conciliation and arbitration system, and thus
proscribed through the ultimate sanction of deregistration of the offending
organisation, although not before other penalties were applied.
The three additional grounds for deregistration raise
questions as to whether the penalty of deregistration and the resulting
loss of agreement and award coverage fit the offence. For example, a proven
freedom of association breach may involve up to 10 individuals and probably
less. Yet deregistration of the relevant organisation may result in the
cancellation of awards and agreements affecting wage and employment conditions
of potentially thousands of individuals.
In light of the proposed additional criteria for deregistration,
it may have been appropriate for the RO Bill and this Consequential Provisions
Bill to have recognised the changing circumstances pertaining to lawful
industrial action and re-defined the deregistration provisions which the
RO Bill and this Consequential Provisions Bill address.
- Australian Industrial Relations Commission/Australian Industrial Registry
Annual Report 1999-2000, p.85. (http://www.airc.gov.au/my_html/airc_air_ann_rep_1999_00.html_)
- In the initial proceedings, the AIRC will more likely request the
parties not to recruit members who are not eligible to become members
of the particular organisation/s.
Steve O'Neill
18 June 2001
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
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