Bills Digest 96 1995-96 Workplace Relations and Other Legislation Amendment Bill 1996


Numerical Index | Alphabetical Index

WARNING:
This Digest is prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest was available from 6 June 1996

The full text of the Workplace Relations and Other Legislation Amendment Act 1996 is available at http://scaleplus.law.gov.au/html/comact/9/4707/top.htm

 

CONTENTS

Passage History

Date Introduced: 23 May 1996
House: House of Representatives
Portfolio: Industrial Relations
Commencement: For the most part, the substantive operational provisions of the Bill will come into effect on a date or dates to be set by proclamation. If those provisions are not proclaimed within 6 months, they will automatically commence 6 months after the date of Royal Assent.

Purpose

The legislation aims to implement the Government's industrial relations election manifesto, Better Pay for Better Work (BPBW), significant elements of the Coalition policy being:

  • retitle the existing Act and amend the objects provisions to reflect a new framework placing greater emphasis on workplace relations
  • revamp Union structures with the 'conveniently belong' requirement to be abolished and unions to compete for representation rights in individual workplaces
  • simplify the award system and restrict the matters over which the Australian Industrial Relations Commission (AIRC) has jurisdiction
  • the AIRC no longer to be permitted to award union preference and compulsory unionism to be outlawed
  • gradually remove paid rate (actual rate) awards consistent with awards setting minimum community standards not total conditions
  • union right of entry to premises to be further restricted
  • provide for Australian Workplace Agreements (AWAs), a non union stream of enterprise agreements
  • disamalgamation of unions to be facilitated, thus opening the way for the break up of super unions created during the Accord era
  • create statutory office of Employee Advocate
  • there will be no right to strike during the period of operation of CAs and AWAs
  • Certified Agreements process to be simplified with scope for access to non-union CAs
  • secondary boycotts covered by the Trade Practices Act will extend beyond cases of conduct which have an anti-competitive effect
  • current 'no disadvantage test' to be replaced by same set of minimum entitlements as apply to AWAs
  • unfair dismissal laws will be amended to limit the reach of Commonwealth laws to workers traditionally covered by federal awards
  • no pre-agreement testing of AWA by AIRC or union involvement unless requested by workers covered by agreement
  • the AIRC's power to set national standards for minimum wages and equal pay for work of equal value will be removed
  • the Trade Union Training Authority to be abolished
  • the Federal Court will not be able to review unfair contracts entered into by independent contractors
  • current Enterprise Flexibility Agreements (EFAs) to be translated into new system but EFA provisions to be repealed
  • the Industrial Relations Court of Australia will cease to operate and jurisdiction for industrial matters is to be returned to the Federal Court of Australia

The Coalition does not appear to have acted yet on its commitment to prevent monies collected on a tax deductible basis from being channelled in whole or in part through a union or employer organisation to political parties (BPBW:13).

Plans for a complete overhaul of provisions regulating the financial and reporting requirements of registered bodies (unions and employer associations) have been deferred pending an independent inquiry.

Background

(a) Major themes

Australian industrial law is divided into seven distinct jurisdictions - more if stand alone legislation governing public sector employment is tallied separately.

Each of the States has its own system of industrial laws. Until relatively recently, federal law was said to cover the federal award workers, Commonwealth employees and persons working in the Territories. Following changes that came into effect in March 1994, it also must be recognised that federal laws currently set minimum employment conditions in respect of defined matters (such as unfair dismissal and parental leave) for the majority of employees.

The Australian Workplace Relations Bill 1996 (the Bill) represents the fourth major set of proposed changes to federal industrial law since 1987.(1)

The Bill is a lengthy and complex document which ranges across the full gamut of industrial issues. To assist the reader, commentary on the relevant provisions is included in the Main Provisions section of this Digest.

The Government's election manifesto is largely replicated in the Bill(2) which is very much the product of the Coalition's post-Fraser era thinking on industrial relations. There is little in the Bill which should take observers by surprise and, accordingly, the Government can feel relatively comfortable in arguing its mandate to press ahead with the changes it has planned.(3) On the other hand, the breadth of the changes involves significant departures from the traditional arbitral model which has been supported by both sides of politics in Government for the better part of this century. What is proposed also leaves ample scope for disagreement over both the general policy direction and matters of detail.

The broad themes in legislation are:

  • greater emphasis on individual, as opposed to collective, rights (eg an end to union preference, provision for individual contracts as part the Australian Workplace Agreements bargaining)
  • a narrowing of the federal jurisdiction, principally by confining reliance on international treaties and the external affairs power as a source of domestic law (eg in re-casting Commonwealth unfair dismissal laws)
  • a re-orientation of the role of trade unions - describing this in contractual terms, converting trade unions in many instances from parties principal to mere bargaining agents (eg by restricting union access and representation rights to instances where they have members at work sites and those members endorse union involvement)
  • deliberately lowering the 'centre of gravity' of day to day industrial relations (by further circumscribing the arbitral jurisdiction of the AIRC and making enterprise bargaining more attractive to non unionised workplaces)
  • seeking a more market driven approach (eg hastening the simplification of existing award provisions and phasing out paid rate awards)
  • providing for greater competition and diversity in relation to union representation rights (eg removing 'conveniently belong' requirements from the Act and assisting the creation of new unions including autonomous enterprise branches of existing federal bodies)
  • greater emphasis on formal legal sanctions as a means of securing preferred workplace outcomes and minimising strikes and other forms of industrial action (eg 'revival' of the so called secondary boycott provisions of the Trade Practices Act).

(b) Context

(i) Economic and institutional factors

Whether or not the Government secures the passage of its package, it is already plain that Australian industrial relations will undergo further significant change during the life of the present Government.

The Accord between the ACTU and the former Government which saw national wage increases effectively capped by a consensual wages policy ended on 2 March 1996 and is unlikely to be revived.

Throughout the past decade there have been important changes in demand for labour arising from, among other things, new technologies, micro economic reform and the internationalisation of product markets. These in turn have had an enormous impact on the occupational and industrial composition of employment.(4)

From 1980 to 1995 employment in the manufacturing sector fell from 19.7% to 13.6% of total employment. Between 1984 and 1994 casual employment rose from 15.8% to 23.7% of total employment and part-time employment over the same period rose from 17.8% to 24.3% of total employment.

Effective rates of protection to manufacturing industries also continued to decline. This ended the 'protection all round' era that had coincided with much of the period of centralised wage fixation commencing with the Harvester decision in 1907 which introduced the concept of the basic wage. Between 1975-6 and 1990-91 effective rates of assistance to manufacturing fell from 28% to 15%. Present policies have the rate set to reach 5% by 2000-01.(5)

Whilst employment growth has at times been strong by both Australian and world standards, unemployment has remained high throughout the past two decades with a tendency for the rate to increase by one or two percentage points at comparable points in each successive business cycle. In March 1978 unemployment in seasonally adjusted terms was 6.4%, in March 1983 it was 10.0%, in March 1990 it was down to 6.2% but by March 1993 it was back to 10.9% and currently stands at 8.9%. Long term unemployment (persons unemployed for a year or more) as a proportion of total unemployment has risen, but not steadily, from the low teens in the mid 1970s to a peak of close to 35% in 1994-95 There, however, has been a heartening decline since then.

At the same time as unemployment has been rising there has been an increase in hours worked by full-time workers, much of it in the form of unpaid overtime. In 1985, 15.2% of workers were working more than 49 hours per week but by 1995 this figure had risen to 20% of employees.

As in many OECD countries, labour productivity growth in the business sector has slowed since the 1970s: Australian labour productivity growth fell from 3.0 % per annum in 1961-73 to 1.3 % per annum over 1980-92.(6)

With the introduction of the Accord, nominal wages growth moderated from the wages surge of 1981-82 which had seen average weekly earnings rise at annualised rates approaching 25% per annum.(7) In 1987-88 average weekly ordinary time earnings for full-time adult employees was 6.1% higher than the previous year. In 1994-95 the comparable figure was 4.1%.

Taking earnings amongst full-time non managerial (male staff) as a guide, income distribution became less egalitarian between 1975 and 1995, with the lowest paid 10 percent of workers earning 76% of median earnings in 1975 but only 72.5% in 1985 and 65.4% by 1994. In the corresponding period, the top decile of male full-time non-managerial staff earnings share rose from 141.2% of median earnings in 1975 to 154.1% in 1985 and 168.1% in 1994.(8)

In line with (or perhaps marginally better than) comparable overseas experience, rates of recorded industrial disputation fell during the 1980s. In 1980-81, the average number of working days lost per thousand employees was 725. In 1986-87, the average was 235 days and for 1994-1995 the figure was 78 days per thousand employees.

Trade union membership has declined from around 46% of the total workforce in 1986 to less than 38% at present. Union membership in the private sector has declined from 34.5% in 1986 to under 28% of the workforce. Further declines can be expected as unionisation rates in many businesses fall below critical mass, traditional areas of high union membership experience slower than average rates of employment growth and public sector employment (traditionally an area of high union membership) continues to fall in absolute terms.

Capping a seven year period of incremental change, the role of the federal industrial tribunal, the Australian Industrial Relations Commission (AIRC/Commission) has altered significantly. Reflecting 1993 legislation amending the objects clause of the present Act and the abandonment of national wage cases as they had operated for many years, the existing legislative framework limits the Commission to principally a facilitative role, ie. settling individual disputes (principally by conciliation) and processing workplace agreements struck between the industrial parties. It would be bold to say that the 'umpire' is merely a shadow of its former self but equally inaccurate to argue that it still plays the pre-eminent part in wage fixing that it once did. Although it has retained significant 'reserve powers', the combination of the Accord, a decline in industrial disputation, a lessening of wage pressures resulting in the reduced prospect of a wages breakout, legislative change and a shift in industrial culture has made the AIRC of less day-to-day relevance to the typical Australian workplace.

Recent years have seen the spread of formalised systems of enterprise bargaining. (Informal arrangements in relation to over award conditions have always been a widespread and significant feature of the Australian labour market and a considerable source of labour market flexibility.) By September 1995, there were 9,367 enterprise agreements across all jurisdictions. By far the largest number - 5,130- were in the Federal jurisdiction, covering 58 per cent of eligible workers. NSW was next - 1,570 agreements, covering 29 per cent of workers.

Jurisdiction Number of agreements* % of employees in jurisdiction covered**
Federal 5130 58
NSW 1570 29
Victoria 457 n.a
Queensland 667 30
South Australia 255 20
Western Australia 583 15
Tasmania 705 5

Source: ACIRRT, Agreements Database and Monitor, No.7, December 1995. Figures represent the proportion of workers in each jurisdiction who are eligible to be covered by awards.

* These are collective union and non union agreements only.

** This figure represents the proportion of employees covered by agreements who are eligible to be covered by awards in each jurisdiction.

A further (though more problematic) re-orientation of workplace relations has arisen from a change in the nature of Australian trade unionism during the period of the Accord. Not only was there a drop in union members, there was also a general decline in the number of trade unions.

The number of federally registered unions fell from 150 in 1983 to 51 in 1995. It is at least arguable that the decline in the number of unions, the more dominant role played by the ACTU during the Accord years and the forced amalgamation of many smaller unions, the passage in some jurisdictions of legislation inimical to trade union influence, and the growth of informal and non union enterprise level bargaining all contributed to a perception of declining union influence. Perception may indeed have matched reality. By the early 1990s, the focus of trade union affairs had shifted further away from individual workplaces just as individual workplace relations were becoming more important.

(ii) Constitutional factors

Australian industrial law is complex and wordy. This partly reflects the distribution of powers between the Commonwealth and the States and varying interpretations of the scope of Commonwealth powers over the years by the High Court.

Most of the past two decades, however, have been marked by a coincidence of an expansive reading of a number of the Commonwealth's constitutional powers by the Court and a more adventurous Commonwealth approach to the use of those powers in the industrial arena.

The industrial power itself [section 51(35)] has in recent years been extended by the Court to apply to white collar workers, many persons employed by State governments and matters affecting what were once regarded as post employment relations such as termination of employment and superannuation.

Starting with the Fraser Government's 1977 amendments to the Trade Practices Act 1974 (the TP Act), extending the operation of that law to cover so-called secondary boycotts, Commonwealth governments have placed greater reliance on the corporations power [section 51(20)] and to a lesser degree the trade and commerce power [section 51(1)] to regulate aspects of workplace relations.

The measures enacted under the Industrial Relations Reform Act 1993 (the Reform Act) specified minimum entitlements for employees in relation to termination of employment and parental leave and conferred additional powers on the AIRC to set community standards with regard to minimum pay and equal remuneration.

Those changes were advanced in reliance on the external affairs power of the Commonwealth [section 51(29)]. The scope of the 'external affairs' power has been subject to considerable attention and has formed the central issue in a number of High Court cases over the past decade. [Refer Koowarta v Bjeke-Petersen (1982) 153 CLR 168; Commonwealth v Tasmania (1983) 158 CLR 1 ('The Tasmanian Dam Case'); Richardson v Forestry Commission (1988) 164 CLR 261 ('the Lemonthyme Forests Case'); and Polyukhovich v The Commonwealth (1991) 65 ALJR 521.]

The gist of these cases is that the Commonwealth has considerable scope for enacting domestic legislation on topics of international concern.

Whilst the issue is not entirely free from doubt, it appears that the existence of a genuine treaty giving rise to an obligation will automatically amount to a matter of 'international concern' on which the Commonwealth may legislate. The validity of domestic legislation may, however, be called into question where the law does not conform with the terms of the relevant treaty or where the law relies on non obligatory terms in an international instrument (ie some ILO 'Recommendations'). The 'favoured' test for determining whether a law comes within the ambit of a particular treaty is a liberal one. That test seems now to accord with the judgment of Deane J in the Tasmanian Dam case where his Honour observed: ' [t]he law must be capable of being reasonably considered to be appropriate and adapted to achieving what is said to impress it with the character of a law with respect to external affairs . . . Implicit in the requirement . . . is a need for there to be a reasonable proportionality between the designated purpose or object and the means which the law embodies for achieving or procuring it'(Commonwealth v Tasmania (1983) 158 CLR 1 at 260).

One example of such limitations on the use of the external affairs power relates to Commonwealth laws relating to enterprise bargaining. The International Labour Organisation Convention on Collective Bargaining (Convention No.98), the only relevant international instrument for such purposes, can support collective agreements but not individual contracts. Hence it could not support the 'individual contract' limb of the system of Australian Workplace Agreements (AWAs) proposed under this Bill. Reliance would still have to be placed on the Commonwealth's corporations power (which itself is subject to certain limitations).

The use of the external affairs power in the industrial arena has proved controversial and has been portrayed by some as unprecedented, although such a course has been adverted to in the past. Indeed, in R v Burgess; Ex parte Henry (1936) 55 CLR 608 at p 687 two High Court judges (Evatt and McTiernan JJ) were of the view that " . . . it is not to be assumed that the legislative power over 'external affairs' is to be limited to the execution of treaties or conventions; and . . . the Parliament may well be deemed competent to legislate for the carrying out of 'recommendations' as well as the 'draft international conventions' resolved upon by the International Labour Organisation or of other international recommendations or requests upon other subject matters of concern to Australia as a member of the family of nations."

An advantage from the Commonwealth's perspective is that the external affairs power can be relied upon as the basis for incorporating internationally agreed standards into domestic Australian law in a way which is free of the limitations imposed on the arbitral power. That power only extends to the prevention and settlement of interstate disputes by way of conciliation and arbitration. A further advantage, this time from the employee's perspective, of relying on the external affairs power is that it extends minimum standards to all workers not just those covered by federal awards. From the employer perspective, the approach offers the possibility of a single national law (rather than one Commonwealth and six State laws) regulating each facet of their activities. Such a unified approach, like a national corporations law, clearly may lower compliance costs for firms operating in more than one jurisdiction.

A number of the States, however, were most concerned by the Keating Government's 1993 changes and three (Victoria, Western Australia and South Australia) have mounted a joint challenge to the Reform Act insofar as it relies on the external affairs and corporations powers. That challenge was heard by a Full Bench of the High Court in the first week of September 1995 and it is conceivable that a decision could be handed down whilst the present Bill is still before the Parliament.

The present Bill reflects some of those 'state's rights' concerns and a more general Coalition unease about the use of the external affairs power. Hence, proposed laws which provide remedies for 'harsh, unjust or unreasonable' dismissals will rely on the corporations, not the external affairs, power. There is not, however, a wholesale retreat from the use of 'secondary' industrial powers in the Bill. The external affairs power is relied on in connection with termination for a prohibited reasons and in instances where adequate notice of dismissal is not provided. The corporations, trade and commerce, Territories and public sector powers also underpin various provisions in the Bill. (It would, of course, be somewhat inconvenient from the Commonwealth's perspective if the High Court were to largely uphold the three Coalition State Government's 1995 challenge to the use of the external affairs and corporations powers, thereby invalidating large parts of the existing Act and de-railing key elements in the present Bill.)

Main Provisions

The operational provisions of the Bill are divided into 21 Schedules. Given the length of the Bill, the number of disparate proposals it contains, and the timeframe in which this Digest must be produced, a clause by clause analysis of the legislation is not possible. Instead, what follows is an issues orientated discussion which attempts to place the provisions in historical context. Possible technical problems with the legislation are also identified as they arise.

Schedule 1 - Principal Objects

The schedule provides for a new set of guiding principles in relation to the operation and interpretation of the re-titled Act. Greater emphasis is placed on maintaining individual rather than collective rights and on promoting workplace level negotiations.

It is not until item 3(h) that reference is made to the traditional source of Commonwealth industrial power, section 51(35) of the Constitution which provides for the Commonwealth to establish arbitral machinery to prevent and settle interstate industrial disputes.

Reference to ensuring the maintenance of labour standards to meet Australia's international obligations is deleted from section 3 of the principal Act.

Reference to encouraging the formation of representational organisations (of employers and employees) is also deleted from the principal Act. There is also provision for organisations to be both representative and accountable.

Reference is, however, now made in the principal objects to 'assisting employees to balance their work and family responsibilities through the development of mutually beneficial work practices with employers'.

Comment: There is always some temptation to discard 'objects clauses' as no more than vague and high sounding statements of principle. The fact remains that they do form part of the Act and may be referred to in resolving cases of contextual ambiguity. On the other hand, the lowly status given to the traditional industrial power is unlikely to lead to the legislation being invalidated on constitutional grounds. Nor for that matter, is the failure to make reference in the objects clause to Australia's international treaty obligations a basis for arguing that those obligations are not being complied with under the new law.

Schedule 2 - Panels of the Commission (AIRC)

The AIRC is presently arranged into two divisions, a General Division and a Bargaining Division, the distinction being the product of the 1993 Reform Act.

Under section 37, the Commission is also divided into industry panels. Each panel comprises a number of AIRC members. Panel membership is determined by the President of the AIRC as is the allocation of industry responsibilities between panels.

The amendments dispense with the present obligation for the President to establish industry panels and confines the President's discretion in creating panels.

The proposals relate to new provisions designed to restrict the AIRC's capacity to hear matters which might otherwise come within the jurisdiction of a State tribunal (proposed section 111AAA). Under the proposals, where the AIRC refuses a claim that the matter before it would be more appropriately heard by a State Tribunal, the President must consider whether the matter ought to be heard by a member of the AIRC who holds a primary appointment with the relevant State body. Similar rules apply to Full Bench matters.

Provision is also made to abolish the Bargaining Division - refer Schedule 9.

Comment: The proposals appear unobjectionable. Consideration may have been given to achieving a similar result by Ministerial guidelines, thereby leaving the AIRC with greater discretion to organise its own affairs whilst at the same time avoiding further lengthening the principal Act.

Schedule 3 - Employment Advocate

The Awards Management (formerly inspectorate) function is handled by a sub-program within the Department of Industrial Relations. The awards management area currently has responsibility for investigating alleged breaches of federal awards as maximising community awareness of award obligations and entitlements as well as compliance with award conditions. In 1994-95, the area received in excess of 300 000 award inquiries and over 4000 complaints. Nearly 6000 award breaches were detected involving breaches by 2110 employers.

The Schedule provides for the creation of the Employment Advocate (EA) to be headed by a statutory office holder appointed for a renewable term of five years. The EA is to be staffed from within the Department of Industrial Relations (DIR) and it will largely mirror the role currently played by the awards management area of DIR but in this case, with respect to AWAs.

As noted at page 3 of the Explanatory Memorandum, the Government has committed itself to the expenditure of $12million a year on the EA. As also noted, there will be establishment and one-off costs in the first year, and a gradual build up of activity with full year effects in subsequent years.

The EA is to be an arm of government, not an industrial tribunal for creating rights. Nor is it to be a judicial body which determines or enforces rights. The EA will not vet AWAs prior to their coming into effect.

The functions of the EA include:

  • providing advice and assistance to both employers and employees about their rights and obligations under the Act;
  • providing advice to employers and employees in connection with AWAs;
  • receiving, filing and performing ancillary functions in connection with AWAs;
  • investigating alleged breaches of AWAs and other complaints relating to AWAs;
  • providing free legal advice (where warranted) in connection with a court proceeding brought under the Act in connection with AWAs.

Reporting requirements and conditions relating to the appointment of the Employee Advocate are similar to other statutory bodies.

Workplace inspectors appointed under these provisions will enjoy similar powers to inspectors charged with investigating alleged breaches of award conditions.

Remuneration of the Employee Advocate (EA) is to be determined by the Remuneration Tribunal.

It will be an offence for persons employed by, or receiving privileged information from, the EA to disclose that information regarding the parties to AWAs to persons 'outside' the agreement.

Proposed section 83BR allows State Parliaments to confer powers on the EA and authorised officers. The Explanatory Memorandum (page 14) states that this section is to allow State laws to validly complement the provisions of the Act relating to AWAs in their application as State laws.

Comment: One commentator has already observed that as (in his view) there won't be many AWAs there will not be a lot for the EA to do.(9) Whilst past performance in all jurisdictions shows a limited demand for AWA style agreements, the comment ignores the other roles assigned under the Bill to the EA and the capacity given to the Minister to make regulations to extend the functions of the Office without seeking prior parliamentary approval [proposed subsection 83BB(j)].

The Bill also gives the Minister capacity to issue binding directives to the Employment Advocate (proposed section 83BC); and to terminate the appointment of the EA by executive action(10) (proposed section 83BO). The Minister also retains significant discretion over the budget of the EA by funding it from within DIR. Those concerned that the EA may be overly involved with promoting the use of AWAs or assisting employers in leaving other collective agreements rather than in protecting employee rights [refer subsections 83BB(b) and (c)] might prefer tighter controls over the EA. Making the EA an 'Officer of the Parliament', ie., a form of workplace ombudsman, might overcome such concerns.

Schedule 4 - Representational Rights of unions

The provisions seek to give the AIRC greater discretion in dealing with demarcation disputes and reflect the policy of the Coalition Government to allow greater competition between unions for representation rights. The proposals here complement the proposed abolition of the so called 'conveniently belong' rule (present section 204), proposals to allow the formation of enterprise (branch) unions, and provisions which will facilitate union disamalgamation (refer schedule 15).

Current section 118 which requires the AIRC to consider whether to consult with peak union bodies (usually the Australian Council of Trade Unions) before settling demarcation disputes is to be repealed.

The schedule substantially amends section 118A by making the effect or likely effect of conduct engaged in or contemplated by relevant unions the principal reason for granting a demarcation order.

In awarding coverage, the AIRC is to be required to have regard to a range of factors including the wishes of the employees in the workplace affected by the dispute and the likely affect of the AIRC's order on the efficiency and other operational aspects of the relevant business.

The AIRC may no longer seek to resolve demarcation disputes under this Part of the Act by altering the eligibility rules of one or more of the unions involved in the membership dispute.

The AIRC, however, retains the power to prevent an organisation altering its rules where that may give rise to a serious risk of a harmful demarcation dispute which would restrict the performance of work in an industry or harm the business of an employer [proposed subsection 204(6B)].

The proposal seems to open up the possibility of an increase in the number of unions represented in many workplaces. This goes against the trend of the last ten years which has seen Government encourage a move to fewer unions and the use of single bargaining units.

Comment: The implications of these changes should not be exaggerated. The AIRC still retains considerable discretion in determining whether to exclude particular unions from particular workplaces on a case by case basis. These and associated proposals do, however, increase the likelihood of demarcation disputes whilst (in theory) allowing individual workers greater freedom in selecting their preferred bargaining agent. By creating the conditions in which unions may feel the need to compete for members by providing better services, the Coalition may be encouraging unions to do something which is also in their own long term interests.

Schedule 5 - Awards

(i) AIRC award making

These amendments provide for a significant rewriting of the machinery provisions dealing with the powers and functions of the AIRC as presently set out in Part VI, VIA and VIB of the Act.

The changes build on a range of reforms designed to promote wider use of enterprise bargaining, principally through the mechanism of certified agreements, which were contained in the former Government's 1993 Reform Act. For example, current section 88A already provides that in exercising its award making powers, the AIRC should encourage the prevention and settlement of industrial disputes by the making of certified agreements. Similarly, section 89 presently provides that the Commission should as far as possible seek to resolve disputes by means of conciliation rather than by arbitration. Current section 91 obliges the AIRC to encourage parties to devise (their own) dispute settling procedures and to include those agreed procedures in awards.

Proposed section 88A refines the present 'objects' placing still greater emphasis on the making of agreements at the workplace level rather than through third party mediation. The section also confines awards to a 'safety net of fair minimum wages and conditions of employment.'

Proposed section 89A defines the scope of the AIRC's award jurisdiction to include the eighteen core employment conditions referred to in proposed subsection 89A(2) (including: classification of employees; ordinary time hours of work; rates of pay; piece rates, tallies and bonuses; annual leave and leave loadings; long service leave; person/carer's leave; parental leave; public holidays; allowances; overtime and shift loadings; penalty rates; redundancy pay; notice of termination; stand-down provisions; dispute settling procedures; jury service; and type of employment but not quotas per employment type).

Proposed subsection 89A(3) limits the AIRC to making minimum rate awards, ie paid rate awards are to be abolished as part of the award simplification process.

New section 95 seeks to limit the flow-on of terms contained in certified agreements by providing that they may not be included in an award if that is contrary to the public interest or inconsistent with general wage-fixing principles established by the AIRC.

Comment: In view of what might loosely be termed the 'hype' concerning the de-regulationist flavour of the Act, the legislation retains a significant and extensive list of employment conditions within the award stream. Moreover, proposed subsection 89A(5) provides that the AIRC may include in an award provisions that are incidental to the eighteen core, award-susceptible, employment conditions referred to above. This latter provision raises the spectre of many an argument before the AIRC as to what constitutes an essential but incidental matter.

(ii) Award simplification

It is common ground amongst many participants and most commentators that notwithstanding the progress made in recent years, award conditions are complex, frequently unclear, often turgid and poorly drafted. Section 150A of the present Act which was inserted by the previous Government recognises these problems.

The present Bill proposes to tackle this problem in tandem with confining, over a relatively short timeframe, all federal awards to the basic employment matters referred to in section 89A.

Item 44 provides that at the end of an 18 month period each award ceases to have effect to the extent that it provides for matters other than allowable award matters.

Comment: There may be some doubt regarding the validity of this provision where it operates, in effect, to override a decision or award of the AIRC. The provision might be seen as going beyond the scope of the Commonwealth's arbitral power under section 51 (35) which provides for the settlement of interstate disputes by means of conciliation and arbitration, not by government fiat or post hoc legislative action.

The schedule contains a range of amendments designed to remove the AIRC's power to make paid rate awards - principally item 37.

Such awards, which set actual (as opposed to minimum) rates of pay, are common in the public sector but relatively rare in private industry although they have been made in respect of parts of metals, mining and building industries. Paid rates awards commonly are made by consent.

Paid rates awards have formed part of the responsibilities of the AIRC's Bargaining Division which is also to be abolished.

The thinking behind the Coalition proposals is that the award system should only protect a basic set on minimum conditions common across all industries. It appears to be the Coalition view that the maintenance of paid rate awards would advantage certain groups of workers over others. The Coalition proposal is that, as part of the award simplification process, all paid rate awards be converted over time to minimum rate awards.

Comment: Naturally, this proposal has attracted opposition from those covered by paid rate awards who fear that terms and conditions currently guaranteed by the AIRC would be 'up for grabs' as part of enterprise bargaining. A further and more general concern is that it is not always clear what is and what is not a paid rates award.(11) The proposals therefore have the potential to give rise to disputes (which might not otherwise occur) over which particular conditions ought to be regarded as minimum entitlements under a particular award. It may be noted that as this process will occur as part of the award simplification process it will take place over an 18 month period (Items 41-46). However, as provided under Item 43, the AIRC in incorporating conditions in a paid rate award into a minimum award must structure the award so that overall entitlements are not reduced.

(iv) Awards of the Coal Industry Tribunal

Item 12 repeals section 92A of the present Act which provides that in performing its functions in relation to the coal mining industry, the AIRC must have regard to relevant decisions of the (former) Coal Industry Tribunal. The provision was only inserted in the Act in 1994 and did not commence operation until 1 July 1995.

Comment: There is no explanation in the Explanatory Memorandum for this change in approach which is unlikely to find favour with the coal industry unions.

(v) Relationship of Federal and State Awards

By the operation of section 109 of the Commonwealth Constitution, valid Commonwealth laws displace otherwise valid State laws to the extent of any inconsistency between those laws.

Section 152 of the present Act similarly provides that federal awards and agreements prevail over State laws and the determinations of State industrial authorities to the extent of any inconsistency.

Item 35 of Schedule 5 provides that federal awards no longer automatically override State employment agreements. 'State employment agreements' are defined in Item 5 to mean an agreement that regulates employment conditions of one or more workers, is made between an employer and either an employee or a union that is in force under a state law, and prevails over an inconsistent State award. Hence State enterprise agreements and voluntary employment agreements are no longer overridden by subsequent Commonwealth awards.

Schedule 5 also amends section 128(1) of the Act under which the AIRC may order a State tribunal not to deal with a dispute. The amendment will prevent the AIRC taking such action where the State tribunal is facilitating the making of a 'state employment agreement'.

Comment: The implications of this decision are potentially far reaching. The changes may extend to allowing workers formerly engaged under a federal award to enter into a State employment agreement which does not guarantee the same minimum standards and conditions as are required by the Commonwealth Act. Otherwise, the provision may assist in allowing State systems to pick up workers who may formerly have been award free by promoting the spread of State common rule awards. The provision may also indirectly facilitate the creation of enterprise (branch) unions.

(vi) Union Right of Entry

Unions may enter an employer's premises to recruit members, assist members in furthering their interests and to ensure that employers have been meeting their legal obligations under awards and industrial agreements.

Award rights of entry are made unenforceable by new section 127AA. Schedule 15, Item 26 provides for a new statutory scheme of entry rights on the basis of an invitation by an employee who is a member of the union.

The proposed legislation distinguishes between a right of entry in relation to proposed award breaches and a right of entry for general discussions (refer proposed sections 286 and 286A respectively).

Such an invitation must be in writing and can only be issued by current union members.

In the case of general discussions, these are confined to outside of working hours, meal times and other breaks. Generally each invitation has a life of 28 days.

Union inspections to check compliance with awards, Commission orders or certified agreement may take place at any time but involve giving the employer 24 hours' notice. Union officers proposing to enter premises must show proof of identity and an authority from the union to do so.

Inspection rights do not extend to examining certain documents including workplace agreements [proposed section 286(4)(b)].

Comments: The provisions provide a limited statutory right of entry. The provisions clearly restrict entry onto premises where unions have no members and may impede union recruitment, particularly at new or 'greenfields' sites. The requirement that a request be in writing opens the possibility of victimisation of union members, especially on those sites where unionists are in a minority. Requirements concerning authorisation and identity whilst reasonable where used reasonably, are open to abuse, eg by employers refusing entry to an officer who they know to be the regular union representative but who has forgotten the relevant paperwork. There is again an issue as to whether the Commonwealth is exceeding its power in overriding existing award entitlements to entry. (There is no constitutional limitation on the Commonwealth preventing the AIRC making determinations on certain matters; it is another thing to seek to extinguish a determination which is already in effect.) There is also a policy argument for saying that rights of entry should be for the parties to determine by agreement, not for third party intervention by the State.

(vii) Refrain from hearing - 'State industrial authority'

Under section 111(1)(g)(ii) of the present Act, the AIRC may refrain from hearing a dispute where it is of the view that the matter may be or is being more appropriately dealt with by a 'State arbitrator'. The expression 'State arbitrator' does not extend to bodies which cannot exercise powers of compulsory arbitration, eg the Victorian Employee Relations Commission.

The amendment proposed by Item 18 effectively ends the so called fast tracking mechanism for unions moving from a State to federal jurisdiction where the State jurisdiction does not allow for compulsory arbitration.

Proposed section 111AAA restricts the power of the AIRC to deal with disputes concerning employees who are governed by a State award. The AIRC must cease dealing with a dispute involving State award employees unless it is satisfied that to do so would be contrary to the public interest.

Comment: Proposed section 111AAA casts the onus on the AIRC to demonstrate that it is in the public interest (not just in the interest of the parties) that current State award employees ought to be covered by a federal award. The main effect of section 111AAA may be to insulate State Government employees from Commonwealth awards.

Schedule 6 - Independent Contractors

Reflecting practice in other jurisdictions, in 1992 the Keating Government amended the Act to deal with a limited range of unfair contracts disputes. Originally jurisdiction was conferred on the AIRC but this was transferred to the Industrial Relations Court by the 1993 Reform Act.

The provisions allow the Court to review a contract for the performance of work (other than work for private or domestic purposes) by an independent contractor on the ground that it is harsh or unfair. Under section 127B, the Court can set aside the contract in whole or part or vary the contract.

Remedies can be pursued by independent contractor parties, parties to the contract, or an organisation of employees representing the contractor or an organisation or association of employers.

There are constitutional limitations on access to the provisions.

The relevant provisions - section 127A - 127C and subsections 178(9) and 179(3) are to be repealed by this Bill.

Comment: The Trade Practices Act 1974 provides relief in respect of some forms of unconscionable contracts and unconscionable conduct - see Part IVA of the TP Act. These provisions will cover some but not all of the situations contemplated by the unfair contracts provisions of the Industrial Relations Act. The initial appeal of the unfair contracts provisions of the IR Act was that remedies could be sought through the AIRC rather than the courts.

Schedule 7 - Termination of Employment

A claim in relation to unfair dismissal generally involves an employee arguing that the manner of the termination was unfair, unjust or unreasonable. The process adopted by an employer in relation to the termination is often an issue in these proceedings. Proceedings may also involve an assessment of whether any reasons which are given for a termination are properly based in fact and justify the termination.

Another source of employer obligations relates to redundancy. This generally involves a situation where a workplace is re-structured and as a result a number of positions no longer exist.

Before the enactment of the Commonwealth Industrial Relations Reform Act 1993 (the Reform Act) many employees not covered by State legislation had access to legal remedies in relation to a termination of employment but these rights were exercised comparatively rarely.

The avenues which existed for pursuing claims of unfair dismissal before the commencement of the Reform Act provisions on 30 March 1994 included:

  • common law rights;
  • anti-discrimination legislation;
  • federal award rights; and
  • the reinstatement and compensation jurisdictions of State industrial tribunals and courts.

In addition, certain classes of employee might have had rights under:

  • apprenticeship and vocational training legislation;
  • annual leave and long service leave legislation;
  • parental leave legislation; and
  • workers' compensation legislation.

Section 170HB of the federal Act seeks to preserve those rights.

(i) Federal Award Provisions

Employees who work under federal awards generally do not have access to the State tribunals dealing with unfair dismissals. Before the 1993 Reform Act took effect, many federal award employees had access to the Australian Industrial Relations Commission (AIRC) where the particular award contained a provision prohibiting 'harsh, unjust or unreasonable' termination.

The widespread inclusion of award provisions concerning termination followed two 1984 test case decisions of the Australian Conciliation and Arbitration Commission (the forerunner of the AIRC) known as the Termination, Change and Redundancy Cases.(12) These cases were particularly significant in establishing a standard clause in relation to termination of employment which has been adopted in most federal, and many State awards. The standard clause links the amount of notice to be given to an employee with the employee's length of service with the employer and the employee's age. The clause also provides that termination of employment by an employer shall not be harsh, unjust or unreasonable.

The remedies available from the AIRC if such an award term was breached were limited because of Constitutional limitations on the AIRC's power.(13) To be enforceable, a reinstatement order would need to be seen as part of a settlement of a wider dispute extending beyond the limits of a State. In the limited situations where reinstatement was ordered, an order for lost wages could be made. Compensation in lieu of reinstatement could not be ordered as this was seen as a judicial matter that could only be dealt with by a Court, not a Tribunal, at the federal level.

One way in which federal award employees did have access to compensatory damages was through the Federal Court.(14) In 1988, the Federal Court held that it could award damages to employees dismissed in breach of award clauses prohibiting harsh, unjust or unreasonable termination, as these terms were generally incorporated into an employee's contract of employment.(15) This avenue of redress was closed off, first by a Federal Court decision in February 1994(16) and with apparent finality by the High Court in 1995.(17)

(ii) New Commonwealth Legislation

The 1993 Reform Act amended the Industrial Relations Act 1988 (the principal Act) to include, amongst other things, a remedy for a wide range of employees against termination of employment which is harsh, unjust or unreasonable. The provisions commenced operation on 30 March 1994.

The 1993 Reform Act represented a radical departure from earlier Commonwealth industrial law because it extended certain 'minimum entitlements' to all workers, not just federal award employees, by way of legislative prescription rather than award provision. The Government relied on the external affairs power, rather than the conciliation and arbitration power which (as noted above) has been the basis of federal industrial law since 1904, in introducing this wide ranging coverage. Matters relating to termination of employment are seen as relevant to Australia's external affairs since Australia has ratified an International Labour Organisation Convention No. 158 on Termination of Employment concerning this matter.

Section 170DE(1) of the Act provides that an employer must not terminate an employee's employment unless there is a valid reason:

  • connected with the employee's capacity or conduct; or,
  • based on the operational requirements of the undertaking, establishment or service.

Under subsection 170DE(2) a reason is not taken to be valid if (having regard to all the circumstances including the employee's capacity and conduct and the firm's operational requirements) the termination is harsh, unjust or unreasonable.

In addition, subsection 170DF lists a number of reasons for which employment may not be terminated. The grounds include:

  • temporary absence from work due to illness or injury;
  • union membership or non-membership;
  • acting as a representative of employees;
  • filing a complaint against an employer;
  • absence from work on maternity or other parental leave; and
  • a number of anti-discrimination grounds.

In relation to the anti-discrimination grounds, a dismissal will not be unlawful if the reason for the dismissal relates to the inherent requirements of the particular position, or the employment is with a religious institution.

(iii) Amendments and Restrictions on Access

Excluded employees

The remedies are generally available to employees. Under the Industrial Relations Regulations however, there are some categories of employee who will not have access to the provisions.

The 1994 amendments restricted access to the termination provisions and set upper limits on the level of compensation to be awarded.

From 30 June 1994, access to the Industrial Court's unfair dismissal jurisdiction was limited to employees employed under either federal or State awards and to those with an annual income of (what was then) less than $60,000. This figure is indexed with the current threshold being set at $62 200.

A second major amendment 'capped' the amount of compensation payable to employees dismissed in contravention of the Reform Act. (Under the principal Act, monetary compensation is available where reinstatement is judged impracticable.) Following the 1994 amendments, the Industrial Relations Court could only award up to six months' salary as compensation in the case of employees covered by awards and not more than $30,000 or six months' remuneration (whichever is the lower) for non award employees as compensation for unfair dismissal. This figure is also indexed.

A third modification to the 1993 provisions confined the onus of proof imposed on employers to those matters concerning the giving of valid reasons for dismissal and for proving that none of the legislatively prohibited grounds for dismissal formed the (real) reason for the dismissal. In all other respects, the onus of proof rested with the employee. This evidentiary requirement also operates to discourage some workers from seeking remedial relief under the system.

In November 1994, Regulation 30B made under the principal Act was amended to exclude further classes of employee from protections afforded by the principal Act.(18) Those excluded are:

- persons employed for a fixed term of less than six months;

- employees engaged to perform a specific task;

- probationary employees in specific circumstances;

- specific classes of trainees;

- some kinds of casual employees; and

- persons employed under the Australian Federal Police Act.

Adequate alternative remedies - Other remedies not excluded

Two provisions in the 1993 Reform Act allow the continued operation of State unfair dismissal regimes, to the extent that such regimes provide 'adequate' remedies for applicants.

Section 170HB provides that the Reform Act provisions are not intended to limit any right that a person or trade union might otherwise have to secure awards or orders relating to the termination of employment.

Another threshold issue regarding jurisdiction arises by virtue of section 170EB of the Act. Section 170EB provides that the Industrial Relations Court of Australia (IRCA) must decline to consider an application if it is satisfied that there is available to the employee an 'adequate alternative remedy' in respect of the termination, under 'existing machinery that satisfies the requirements of the Termination of Employment Convention'. As previously noted, this Convention is the main Constitutional basis for the termination provisions of the Reform Act. The Termination of Employment Convention was ratified by Australia in February 1993, and came into effect for Australia in February 1994.

The meaning of the expression 'adequate alternative remedy' has given rise to much academic discussion, litigation and subsequent legislative action.

Prior to March 1994, workers covered by federal awards did not have an adequate remedy in terms of article 10 of Convention No.158. Although federal awards typically prohibit unfair dismissal, there was no mechanism whereby federal workers could access article 10 remedies including compensation where reinstatement is impracticable.

In relation to public sector employment, a Full Court of the Industrial Relations Court has held that the review provisions contained in the Public Service Act 1922 do not amount to an adequate alternative remedy.(19)

A further area of difficulty is whether an alternative remedy must be compared with the remedy available under the Commonwealth Act or the Termination of Employment Convention or both, when assessing the adequacy of the State remedy. The matter appeared to have been settled by the Full Court of the Industrial Relations Court in Liddell's case, where the majority of the Court appears to have determined that an alternative remedy must be assessed against the Convention, and additionally the federal Act, where there is a difference between the two.(20)

The Industrial Relations and Other Legislation Amendment Act 1995 which came into effect on 15 January 1996 sought a legislated solution to the above problem by providing that:

  • the termination of employment provisions of the Act will not apply where there is an alternative available under another law that satisfies the requirements of the Convention that are relevant to wrongful dismissal; and
  • the Court will be required to consider all the circumstances of the case in deciding what remedy (if any) should be given.

These provisions helped to clarify the law in relation to the application of the 'alternative remedy test' but kept open the generic, and politically more interesting, question of whether the various State acts can be described as 'adequate' in terms of the protection provided by the present Commonwealth law.

(iv) The Reith proposals

In broad terms, the Bill endeavours to establish the familiar 'State' models for dealing with termination in the Commonwealth arena. In doing so, the drafters have been obliged to couch the Bill in terms which overcome the constitutional difficulties referred to above. Indeed, apart from the limited scope for remedies from the Court for unlawful (as opposed to harsh, unjust or unreasonable) termination in Subdivision C, the new jurisdiction is to give primacy to weighing industrial merits, not on enforcing individual rights. As is presently the case in the Commonwealth and most State jurisdictions, there will be provision to exclude classes or worker from the legislation.(21)

The present proposals amend the federal law in at least five vital respects:

  • the amendments limit the availability of remedies for harsh, unjust or unreasonable termination to employees in the 'traditional' federal sphere: Commonwealth employees, Territory employees and workers covered by federal awards. The amendments endeavour to ensure comprehensive coverage of all employees. Items 1 and 2 allow State Parliaments to confer certain powers on the AIRC or on the Federal Court to deal with the unfair dismissal of any federal award employee. (This provision seeks to overcome certain constitutional limitations inherent in the decision not to rely on the external affairs power as a continuing source of federal power in relation to unfair dismissals);
  • both the AIRC and the Federal Court are empowered to award costs against applicants who pursue claims vexatiously or without reasonable cause;
  • mirroring the position in Victoria, it is intended that regulations will be made to provide that each person seeking a remedy will pay a filing fee of $50 (there is already power to do this under the Act);
  • where the Commission thinks that reinstatement is inappropriate it may order the employer to make a payment to the employee in lieu. This is the position under the present Act. However, under new subsection 170CH(2) the awarding of any remedy remains at the discretion of the AIRC taking into account the entire circumstances of the case. Moreover, new subsection 170CH(7) provides, however, that in assessing the payment, the Commission must also take into account the likely effect on the employer's business of the payment; and
  • by specifically incorporating reference to the 'fair go all round' test enunciated by Sheldon J in Re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95, the authors of the Bill have sought to inject what might be described as a further element of 'common sense' into unfair dismissal proceedings. As noted in the Explanatory Memorandum, ' . . procedural fairness is to be only one factor to be considered along with other relevant factors, the intention is that undue weight will not be given to procedural defects in a termination.'(22)

The legislation may thus be viewed (again in broad terms) as setting up two regimes, one for dealing with harsh, unjust and unreasonable terminations via the AIRC , and a second for dealing with breaches of mandatory notice periods (clause 170CM), terminations for prohibited reasons [subclause 170CK(2)] and procedural matters relating to handling of redundancies via the Court(s). Employees seeking a remedy must choose between the two streams (clause 170HB).(23)

Comment: In the time available to prepare this Digest, it has not been possible to compare each and every element of the new provisions with the legislation as it stood after the last set of Keating Government amendments came into effect on 15 January 1996. As Australia must continue to meet its obligations under ILO Convention No.158, it is somewhat surprising, from a purely technical perspective, that the legislation goes to such lengths to maintain almost universal access to unfair dismissal laws through the use of disparate constitutional powers and co-operative legislative action by the States. On a rather quick reading, the legislation appears more comprehensible than the much amended provisions introduced by the 1993 Reform Act. This may allay some lingering doubts about the unwelcome capacity of the AIRC and some officers of an industrial court to interpret any unfair dismissal law in a seemingly 'counter-intuitive' manner. There will, however, no doubt still be the occasional odd finding in respect of an apparently less than deserving employer or employee, but there should be less jurisdictional wrangling than under the old law.

Schedule 8 - Minimum Wages, Equal Remuneration and Leave to Care for Immediate Family

This schedule proposes the repeal of those provisions in the Act which empower the AIRC to set national minimum standards in relation to pay, and anti-discrimination in the workplace, such as equal remuneration and minimum wages.

The repeal of the present provisions is prompted by the view that each of the Commonwealth and State jurisdictions has power to make their own laws dealing with these matters and have adequate laws governing those matters. Possible hostility to reliance on international treaties and the extended use of the Commonwealth's external affairs power [section 51(29)] and a desire to preserve state rights in relation to minimum wages may also have prompted the proposed amendments.

Comment: Whether the States will, if not subject to the possible imposition of national minima by the AIRC, enact laws which meet appropriate national and international standards is an open question. In relation to the traditional Commonwealth arena, it may be noted that other mooted changes to the Act (proposed 89A) will limit, albeit not severely, the capacity of the AIRC to arbitrate in relation to some matters of remuneration which may fall within the terms of the provisions which are repealed under this schedule.

The proposed changes to the treatment of equal pay have drawn early criticism.(24)

It is possible, for instance, that increased 'freedom' to bargain will, given the present state of the labour market, result in some (probably part-time) female workers with family responsibilities being obliged to work longer and more unsociable hours.

It is also arguable that the Bill will have a marginal negative impact on women's relative remuneration. On the other hand, women's wage rates may remain unaffected in relative terms, ie ordinary time earnings (basic wages) are likely to remain within the jurisdiction of the AIRC whilst other matters will not.

Pessimistic predictions are supported by evidence that the ordinary time earnings of Australian women workers have been less subject to gender discrimination than those of their overseas counterparts because of the combined influence of the unions and the industrial tribunals. Where, however, remuneration is set outside the award system, ie where the influence of unions and the AIRC is less pronounced, there are larger disparities between male and female earnings.(25)

Critics will argue that a lessening of union and Commission influence on the setting of terms and conditions will produce greater disparities.

On a more positive note, it also probable that family friendly working arrangements will be developed under the more flexible arrangements available under AWAs. (In this regard, it is perhaps unfortunate that the secrecy provisions applying to AWAs may inhibit the spread of such potentially innovative ideas.)

Bargaining Arrangements

Since 1993 the focus of the federal system has been squarely on the promotion of enterprise bargaining underpinned by minimum safety net conditions common to all award workers. However, although current emphasis is on greater flexibility and workplace relations, this is a relatively recent development and contrary to the approach favoured by policy-makers and the industrial parties for most of this century.

Collective or workplace bargaining has always taken place in the form of over-award agreements, informal arrangements, single company awards and facilitative clauses in industry awards. On balance, however, it is probably true, as Sir John Moore, a former President of the then Australian Conciliation and Arbitration Commission (ACAC) put it in 1983, that any collective bargaining that does occur takes place 'in the shadow of the arbitration system'.(26)

For much of the period from 1974, the focus of wages and industrial relations policy has been on restraining the growth in aggregate wages. Encouraging wage flexibility and productivity growth were accorded a lesser priority in official circles until the Commission's landmark 'two-tier' National Wage Case decisions in March 1987. These priorities were understandable. Since the Harvester decision in 1907, the Australian wages system has placed considerable weight on producing predictable, socially defensible and nominally 'egalitarian' outcomes. Departures from the 'living wage' concept, such as those that occurred in the 1931 and 1953 cases, have been viewed with suspicion and generally regarded as unwelcome. Moreover, the wage explosions of 1974-75 and 1981-82, under conditions where the industrial tribunals had been largely 'sidelined', and the 'flow on' effects of 'work value' cases in the 1960s and the late 1970s, were not good advertisements for a less centralised approach to wage-setting.

From the floating of the Australian dollar in December 1983, and with the progressive de-regulation of product and financial markets and the easing of import protection, pressure increased for what has, somewhat erroneously, been called the 'de-regulation' of the labour market.

The focus of much of this attention has been the central roles in wage determination played by the AIRC and its predecessors and by the trade unions. Australia's uneven economic performance involving increasing rates of (what some economists refer to as) 'natural' unemployment and the decreasing share of the workforce covered by the union movement have added to these pressures.

The response at the federal level has taken the form of: (a) a progressive liberalisation of the legislative constraints which formally inhibit the growth of enterprise and non-union bargaining; and (b) an increased willingness on the part of the AIRC to accommodate enterprise bargaining within its wage fixing principles. (Evidence of the latter may be seen in the October 1991 National Wage Case decision.)

Amendments to the federal industrial relations legislation have also embodied an incrementalist approach. Following the Hancock Committee's recommendation that a form of opting out of the award system be permitted, the Industrial Relations Act 1988 provided for the making of certified agreements under certain limited conditions. The relevant provisions, contained in what were sections 115-117 of the IR Act, however, proved too restrictive, in part because the AIRC applied a strict public interest test to applications for certification.(27)

With effect from July 1992, the legislation was amended by the Industrial Relations Legislation Amendment Act 1992 replacing the existing procedures with a new Division regulating the making of certified agreements. These agreements were commonly referred to as section 134A (or, more correctly, Division 3A) agreements.

The principal effect of the 1992 amendments was to lessen the supervisory role of the Commission by restricting its capacity to refuse certification of agreements. In particular, except in cases involving Ministerial intervention, the AIRC was generally precluded from examining 'single business' agreements or refusing to register them on the ground that they were contrary to the public interest.

In 1993, the Keating Government sought to place further emphasis on enterprise bargaining by, amongst other things:

  • altering the objects of the Act; and
  • revising the certified agreements provisions of the Act to enhance their attractiveness to the parties (by allowing the agreements to be more readily varied on expiry, providing limited immunity for persons and organisations undertaking industrial action as part of the process of negotiating CAs; and extending the scope for the operation of minimum entitlements such as minimum pay, termination rights, equal pay and parental leave).

The spread of enterprise agreements was encouraged in the Commonwealth public sector and the AIRC, after its October 1991 National Wage Case decision, moved to an approach which primarily seeks to facilitate direct negotiation between the parties underpinned by safety net increases awarded by the Commission.

The 1993 Reform Act also created a separate bargaining stream for non union agreements known as Enterprise Flexibility Agreements (EFAs).

EFAs have been described as a mirror image of CAs with three major differences. Those are that:

  • they depend on the use of the corporations power [section 51(20)] rather than on the principal industrial power [section 51(35)];
  • an EFA can be made without the involvement of a trade union; and
  • EFAs may only operate in relation to single enterprises.(28)

A fourth important difference is that, the provisions providing for protected action do not extend to the period leading up to the formation of an EFA.

The 1993 reforms came into effect in March 1994 and have been the subject of frequent criticism. One line of criticism is that the bargaining provisions as a whole are too complex.(29) Another is that the provisions dealing with EFAs place too great a weight on traditional arbitral forms and pre-occupations. The main substantive criticisms are that the law as it stands:

  • allows unions a right of veto (strictly speaking the requirements are that unions be consulted about a possible EFA and that they have a right to appear before the AIRC if they have members at the site affected by the EFA);
  • the AIRC has a role in 'pre-testing' the EFA and this discourages the making of agreements because it involves parties in unwanted bureaucracy and form filling and may potentially draw fire from unions who oppose non union bargaining; and
  • the AIRC applies a 'no disadvantage test' which parties perceive as being too restrictive.

It is these perceptions and criticisms that the present Bill seeks to address.

Comment: No one disputes that the present provisions are complex and require redrafting. It is less clear, however, why there has been such a low take up rate for EFAs and, to a lesser extent, CAs. As noted in a previous Digest, this may reflect not only constitutional constraints but also:

(a) the high transaction costs involved in enterprise bargaining; (b) the lack of familiarity of many non union workplaces with the bargaining process; (c) the complexity of the existing legislative provisions; (d) a degree of satisfaction with existing award-based arrangements; (e) some apprehension at possible union displeasure with such arrangements; (f) the widespread incidence of informal/unlawful enterprise flexibility arrangements; (g) the incidence of individual agreements and the award-free nature of growing areas of employment; and (h) existing flexibility within the award stream and the availability of State-based enterprise agreements.(30)

Schedule 9 - Certified Agreements

Some of the main features of the Bill are:

  • CAs are presently restricted to agreements between employers and unions whereas the proposal is for agreements between employers and unions and employers and groups of employees;
  • the scope of CAs will be expanded by reliance on other constitutional provisions, so it will not be necessary to have an inter-state dispute to attract jurisdiction; and
  • majority employee approval is required even when the CA is with a union (this compares with current provisions which only require majority approval of EFAs where arrived at through agreement between employers and unions.

The Bill contains detailed provisions dealing with the operation and effect of Certified Agreements. A full listing is not provided below but the main provisions are as follows.

Item 19 provides for the repeal and replacement of the existing provisions on Certified Agreements.

Item 4 extends the operation of the Act in relation to single business CAs by relying on the Commonwealth's corporations, trade and commerce, and the Commonwealth's Territories powers.

Item 5 restricts the AIRC's general power to grant applications to intervene in proceedings involving consideration of CAs to unions which proposed being a party to the CA under consideration.

Item 13 amends section 135 of the Act dealing with secret ballots to explicitly provide for the conduct of AIRC ordered ballots in regard to CAs.

In relation to CAs covering a single business or part of a business, the AIRC is not required to take account of the public interest (Item 19).

The AIRC may still register CAs in the form of multiple business agreements but these are subject to a public interest test and not encouraged (proposed section 170LC).

Proposed section 170LE provides for CAs to be formed by agreement of a 'valid' majority of workers affected by the agreement.

No Disadvantage Test and Other Inhibitions on CAs and EFAs

Under the Bill, all agreements are subject to defined minimum standards as set out in (new) Part VIE (see Schedule 13). However, under proposed section 170LT, the former Government's 'no disadvantage test' (NDT) is to be abolished. Moreover, under proposed subsection 170LT(4), the AIRC may certify an agreement which reduces award standards where the agreement forms 'part of a reasonable strategy to deal with a short-term crisis in, and to assist in the revival of', the relevant business.

In addition, CAs may not include discriminatory terms (eg relating to treatment of unionists and non unionists or discrimination on any of the standard human rights grounds - race, colour, sex, age etc)[ refer proposed subsection 170LU(4)]. CAs must also not be inconsistent with the Act's provisions on termination of employment. The CA must also not breach the 'freedom of association' principles embodied in the Act.

The Act at present sets out a two stage process for determining whether a Part VIB agreement would disadvantage employees in relation to their terms of employment. First, the AIRC must establish whether an agreement reduces entitlements or protections under an award, or State or federal legislation. Secondly, where any reduction is identified, the AIRC must then be satisfied that, when considered in the context of the employees' total package of conditions, the reductions are not contrary to the public interest.(31)

The present NDT is essentially the same for both certified agreements and EFAs but is far more likely to be rigorously applied in relation to the latter.

Key requirements presently stipulated by the Act likely to impede the process of certification, apart from a general lack of clarity in the drafting of the agreement itself, are as follows:

  • the AIRC must refuse to certify or approve an agreement which is inconsistent with a provision or order under Part VIA of the Act, that is, the part of the Act dealing with certain minimum entitlements of employees;
  • it is mandatory for a union or unions to be party to certified agreement [paragraph 170MC(1)(g]. Each and every union that is a party to an award applying to the workplace must have been given the opportunity to be a party to the agreement, and at least one such union must be a party.(32)
  • it is not mandatory for a union to be party to an EFA, however, (1) the AIRC may refuse to approve an EFA where: the employer failed to notify each relevant union about negotiations, as soon as practicable after the start of discussions, and give them the opportunity to take part in those discussions;(33) (2) section 170NP allows an eligible union, by written notice to the employer, to agree to be bound by the agreement; (3) unions maintain their normal rights to intervene in Commission proceedings and, where they are party to a relevant award, have a general right to be heard in relation to the proposed EFA;(34) and (4) an employee has the right to be represented by their union in EFA negotiations;(35)
  • the AIRC may, in relation to all EFAs, exercise a limited discretion, in exceptional circumstances;(36)
  • the AIRC has discretion to refuse to approve a certified agreement which applies only to part of a single business, which is neither a geographically distinct part of the business or a distinct operational or organisational unit within the business in certain circumstances;(37)
  • in the case of EFAs, the AIRC must refuse to register such an agreement which applies to more than one enterprise or which does not apply to all employees in that enterprise whose wages and terms and conditions are regulated by federal awards;(38)
  • the AIRC must refuse (subject to minimal statutory exceptions) to certify an agreement which discriminates against an employee on the grounds of 'race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin';(39)
  • an agreement may only be certified where the employees affected are covered by a federal or State award (certified agreements) or a federal award (EFAs);(40)
  • strikes, employer lock-outs and other forms of industrial action enjoy a measure of protection during the statutory bargaining period associated with the negotiation of a certified agreement (but not EFA); (41)protecting individual employment rights, section 334A of the Act presently provides that where an interstate dispute has been notified or found to exist by the AIRC, employees must not be dismissed or prejudiced in their employment merely because they have engaged or are proposing to engage in industrial action in relation to a particular dispute;
  • the AIRC is specifically charged, in relation to both certified agreements and EFAs, with the task of identifying and seeking to protect the interests of women, persons whose first language is not English and young persons who may be covered by the agreement;(42)
  • the Commission is empowered to make orders requiring the parties to bargain in good faith (refer section 170QK);
  • an employer may not discriminate between unionists and non unionists in negotiating a certified agreement or EFA.(43)

The present NDT applies in addition to these statutory controls.

New Provisions

Proposed section 170LI provides that each CA must cover all persons employed in the single business.

Certified agreements may be made with one or more unions at a particular site, and reasonable steps must be taken to ensure that all employees affected are adequately consulted about the terms of the agreement, and a valid majority of employees affected must approve the agreement (proposed section 170LJ).

Employees can request a union to represent them in negotiations.

There are special provisions for negotiations in respect of 'greenfields' sites (proposed section 170LL and proposed subsection 170LT(8)).

CAs must include provisions for preventing and settling disputes. They may also provide for the AIRC to play a role in any such dispute resolution process (proposed sections 170LT and 170LW).

Agreements are for a maximum period of 3 years [proposed subsection 170LT(9)]. Agreements made for a shorter period may be extended to cover a total period of 3 years (proposed section 170MC) or varied by the parties (see proposed section 170MD and new Division 7).

Proposed section 170MG deals with the termination of agreements before their nominal expiry date. The section appears to allow the employer to unilaterally terminate an agreement to which a union is not a party. This, provision is, however, subject to AIRC approval and approval is available only where a valid majority of employees affected genuinely consent.

An agreement continues in effect after the nominal date of expiry (proposed section 170LX) but may be terminated unilaterally on the giving of 28 days notice after the passing of the nominal expiry date by the employer, a union party or a majority of affected employees (proposed section 170MH).

While a CA is in operation it prevails over federal awards (proposed section 170LY) and over State laws and industrial awards and employment agreements except in respect of defined matters. Defined matters include State occupational health and safety laws, worker's compensation laws, apprenticeship laws and any other matter to be prescribed by regulation under the proposed Act (proposed section 170LZ).

A union may only become party to a certified agreement where it has at least one member covered by the agreement and that person wants the union to be a party (proposed section 170M).

Schedule 9 also contains extensive provisions regulating the protected bargaining period. These in large part replicate the provisions under the existing Act. Two features worth noting, however, are that:

  • protection does not extend to secondary boycott activity (proposed section 170MM); and
  • as part of the transitional arrangements, CAs made under the existing and proposed provisions will continue to prevail over EFAs.

Comment: The scope of section 170MM is such that it may cover instances where there is no intention to engage in secondary boycott activity. Conduct that may be covered is where a party believes they were taking protected action but it is subsequently determined that they were not protected. The provision also appears to make unlawful all forms of sympathy action. Current ILO jurisprudence suggests that sympathy action should generally be treated as lawful where the related primary action is lawful.

Schedule 10 - Continued Operation of EFAs

Enterprise Flexibility Agreements are replaced under the Bill by Australian Workplace Agreements (AWAs).

These are transitional provisions allowing for the continuation of existing EFAs until they are terminated by notice or displaced by a binding AWA.

Schedule 11 - Australian Workplace Agreements

These are intended to be single enterprise agreements. AWAs may be negotiated on a group basis but must be entered into on a one to one basis by employers and employees [proposed section 170VF(1)]. AWAs are a form of individual contract.

In enacting these provisions the Commonwealth is relying on the corporations and trade and commerce powers under the Constitution. This is principally because the agreements do not necessarily rely on the settlement of interstate industrial disputes by means of conciliation and arbitration. AWAs may also be made by the Commonwealth with its own employees.

The essence of the agreements is that they eschew third party (union and AIRC) involvement.

Protection to employees is offered by way of the Employee Advocate (see Schedule 3 discussed above) and statutory minimum conditions outlined at proposed section 170XA of the Act (refer Schedule 13).

Those statutory minima include (in brief):

  • wages over a period no less than the wages that would have been earned over the period under the award;
  • no less than 4 weeks recreation leave with pay each year;
  • no less than 12 days of personal/carer's leave with pay each year if the employee is sick, is caring for a family or household member or is absent because of death of such a member;
  • no less than 52 weeks of parental leave or adoption leave without pay after 12 months continuous service;
  • long service leave on terms and conditions that are no less than those that would otherwise apply;
  • equal pay for work of equal value without discrimination on the ground of sex; and
  • payment for jury service no less than the difference between the amount payable under the agreement for the period of absence and any amount payable by the court.(44)

Certain procedural requirements must also be met in relation to the formation of valid agreement.

To make AWAs easier to conclude, agreements which fail to provide for legislated requirements such as minimum conditions and dispute resolution procedures are deemed to incorporate 'model' provisions in relation to those matters (proposed section 170VG).

Two or more agreements may be reflected in the single AWA document.

AWAs are for a maximum of 3 years and if no expiry date is included in the agreement, the agreement is deemed to last for 3 years (proposed section 170VH).

Employers and employees may appoint bargaining agents to act on their behalf. Unions may be bargaining agents. Each party must 'recognise' bargaining agents appointed by other parties (proposed section 170VK) but is not obliged to negotiate with them as such agreements are intended to be purely voluntary.

The parties may jointly agree at any time to terminate an AWA. After the nominal expiry date of an AWA any party may by notice of 28 days unilaterally terminate the AWA. Where there is a collective AWA, there is the theoretical possibility that some agreements may carry on whilst others may be terminated at different times (proposed section 170VM).

Division 5 deals with the procedures for filing AWAs with the Employee Advocate.

Proposed section 170VQ gives AWAs precedence over federal awards and State awards and agreements that would otherwise apply. However, AWAs do not displace state termination award rights and do not override State laws dealing with health and safety, worker's compensation, apprenticeship and other matters set by regulation.

The relationship with federal Certified Agreements is more complex. AWAs do not:

  • displace certified agreements which have not reached their nominal expiry date except where the CA specifically provides for this possibility;
  • prevail over certified agreements which come into effect after an AWA has reached its nominal expiry date.

In all other cases an AWA operates to the exclusion of any CA that might otherwise apply to the employee's terms of work.

Parties to an AWA may not engage in industrial action during the life of the AWA with respect to a matter covered by the AWA (proposed section 170VU).

Proposed Division 8 provides limited immunity for industrial action by employers and employees engaged in for the purpose of negotiating an AWA.

Proposed section 170WF provides that persons who are not party to negotiations must not hinder others seeking to conclude an AWA.

Schedule 12 - Consequential amendments relating to CAs, AWAs and EFAs

This schedule is comprised mainly of technical amendments arising from the chances dealt with above. Within the timeframe in which this Digest has been produced it has not been possible to consider whether these proposed amendments have unintended or unstated consequences.

Items 33 and 34 provide for increased penalties for breaches of CAs.

Proposed section 358A imposes an obligation on the Minister to secure triennial reports on the operation of the Act's bargaining provisions. Such reports must be tabled in Parliament within 15 days of receipt by the Minister.

Schedule 13 - Minimum Conditions

As previously noted, the statutory minima referred to in this schedule apply to both CAs and AWAs and replace the 'no disadvantage test' (NDT).

The terms of the NDT are discussed above under Schedule 9 and an outline of the minimum conditions is presented in this Digest as part of the commentary on Schedule 11 (AWAs).

For AWAs, complaints regarding non-compliance may initially be directed to the Employee Advocate. For CAs, the AIRC will continue to check agreements to see that they comply with statutory minium.

Where an employer proposes to make an AWA with a person and there is no relevant award in relation to that person, the employer must apply to the Employee Advocate in writing for guidance as to which award standard should be applied. The EA will then make a determination for the purposes of establishing an appropriate minimum for the purposes of the AWA (proposed section 170XC).

There are special provisions relating to the determination of minimum conditions for casuals, pieceworkers, and (by regulation) for persons participating in Labour Market Programs.

Division 4 deals with the minimum entitlements of employees undertaking an approved traineeship or apprenticeship.

The Division does not apply to persons engaged under:

(a) a National Training Wage traineeship; or

(b) a Career Start traineeship; or

(c) an Australian Traineeship System traineeship.

In regard to the minimum entitlements of trainees covered by proposed section 170XW, the minimum entitlement is reduced proportionately for time spent in structured training and not in productive work for the employer. The proportionate reduction is, however, to be determined by an independent 'approving authority', not by the employer.

Schedule 14 - Industrial Action

The main proposals are for:

  • the repeal of the bans clause procedure and its replacement with a directions mechanism under new section 127;
  • a tightening of restrictions on the granting of so called 'strike pay' involving the repeal of existing section 124 and amendments to the definitions section of the Act and the inclusion of proposed sections 187AA - 187AD; and
  • the repeal of sections 165, 166, 166A and 167 of the Act which relate to actions at common law.

(i) Strike Pay

It was once common, particularly in the building industry, for workers to engage in strike action and then insist as part of the subsequent dispute settlement that they be paid their normal wages for the time spent on strike.

Section 124 presently prevents the AIRC dealing with a claim for strike pay except in cases where the stop work was brought about by a dispute over occupational health and safety, arose over matters which were reasonably the responsibility of the employer and the action taken by the employees was itself reasonable.

What is now proposed is that 'industrial action' as defined under the Act should not cover stoppages or bans relating to some disputes concerning occupational health and safety. Action based on a reasonable apprehension by employees about an imminent risk to their health or safety will not be unlawful if the employees do not refuse a reasonable direction from their employer to perform other available, safe and appropriate work.

Simultaneously, further amendments will:

  • make it unlawful for employers to make payments to striking workers in respect of a period of industrial action;
  • make it unlawful for unions and their members to claim strike pay;
  • make it unlawful for an employee to accept strike pay;
  • allow persons, including the Minister, to seek orders against persons paying or claiming strike pay; and
  • allow the court to impose penalties of up to $ 10 000 on any person breaching the new provisions.

Comment: The author is somewhat surprised that strike pay is still regarded as so serious and widespread a problem as to justify the present amendments. The proposed provisions nonetheless may provide some welcome clarification as to the rights of employers to direct employees in a health and safety dispute to undertake alternative work. The level of penalty under proposed section 187AD has not been set according to the legal personality of the person alleged to have committed an offence, ie the maximum penalty is the same for individuals as for unions and businesses.

(ii) Restraints on Common Law Action

The 1993 Reform Act provided a very limited level of immunity for unions, union officials and employees in respect of common actions for damages and against precipitate applications for injunctive relief.

Apart from the changes to the law dealing with so-called secondary boycotts, the most important of these provisions associated with limiting legal action against strikes were contained in section 166A. This provision delays the commencement of common law proceedings for a maximum of 72 hours pending the AIRC attempting to resolve the underlying dispute by means of conciliation.

The protection presently given by section 166A does not extend to conduct resulting in personal injury or damage to property or conduct arising out of demarcation disputes.

The main effect of the proposed change is not to make strikes unlawful at common law, they are already unlawful under the present law. The principal effect is to allow employers to seek common law injunctions without first attempting to resolve the matter in dispute through the conciliation and arbitration machinery.

Comment: The proposed changes will probably draw criticism as the provisions appear to breach international obligations such as ILO Convention No.87.

Schedule 15 - Registered organisations

The proposed amendments may bring about a significant change in the nature of trade unionism but could also reverse the present trend which has seen a significant decline in the number of federally registered unions in the past decade (see Background).

The main changes proposed are as follows:

  • the repeal of the so called 'conveniently belong' rule which imposes restrictions on the registration of new unions where its potential members come within the eligibility rules of an organisation already registered under the Act;
  • new provisions facilitating the registration of new unions:

- Item 6 provides that the minimum requirement for registration is reduced from 100 to 20 members;

- new Division 6A will provide for the creation of enterprise branch unions by a ballot of the affected members;

- removing the requirement that a registered body must be capable of being a party to an interstate dispute (Item 4);

- provisions facilitating disamalgamation (new Division 7A); and

- increasing the statutory threshold in respect of the application of more onerous financial accounting and reporting requirements from $10,000 to $20,000 (amendment to section 285).

Item 18 amends subparagraph 264(2)(b)(i) to reduce the maximum period of notice that may be required for resignation from a union from 3 months to 2 weeks.

Item 23 strengthens the power of the Industrial Registrar to investigate the financial accounting and reporting by registered bodies.

Comment: There is some prospect that the changes will give rise to increased levels of inter and intra union disputation. Battles over union property, generally associated with attempts of branches to break away or act independently, frequently produce expensive and, for the union, debilitating legal proceedings. On the other hand, the changes may encourage unions to improve services to existing members and act as a spur to the recruitment of workers not presently covered.

Schedule 16 - Freedom of Association

The schedule meets the Coalition's election commitment to end union preference and compulsory unionism.

'Union preference' and 'compulsory unionism' are forms of union security device but they do not, as is often popularly assumed, have the same effect or the same meaning. One reason for this confusion is that in some instances, and depending on the nature of the union preference applying, compulsory unionism and union preference can produce the same result.

For present purposes it is necessary to distinguish between the two concepts.

Compulsory unionism refers to what is sometimes called 'the closed shop'. It takes pre-entry and post entry forms but, in essence, means that a worker who is not a member of the relevant union represented at their place (or potential place) of employment, will not get (or keep) a job. This is sometimes referred to as 'no ticket, no start'. Compulsory unionism is a strong form of union security device.

The federal industrial jurisdiction has never recognised compulsory unionism and there is High Court authority to the effect that the AIRC cannot make awards of compulsory unionism because it is not an industrial matter (ie it does not pertain to the relations of employers and employees). Compulsory unionism exists in federal industries, but as informal arrangements between unions, employees and employers.

'Union preference' may take a number of forms but is most common at the federal level as qualified preference. An employer must give preference to a union member in instances where two applicants for a job are equal in all other respects, ie they cannot be separated on merit. Preference in this form is a weak form of security device, principally because it is relatively easy for employers to find reasons for selecting the non unionists.

The federal industrial tribunal has for many years had the power to award union preference (refer section 122) and this has to some degree been balanced by provisions in the Act providing for conscientious objection to union membership and protection against victimisation plus an enforceable right to union membership for workers who wish to join. The AIRC and its predecessors have also been reluctant to make awards of preference in particular industries and callings, eg the Commonwealth Public Service.

Arguments for allowing forms of union preference have been:

  • preference seeks to encourage union membership thereby promoting more representative organisations, particularly in the context of formal registration under systems of conciliation and arbitration;
  • preference recognises the role played by unions in securing benefits for all workers covered by awards and agreements, which generally do not discriminate between non union and union members;
  • preference is a useful device for settling demarcation disputes and disputes over union representation rights generally.

Those opposed to preference see it as:

  • an attack on individual rights;
  • an outmoded concept given declining union numbers; and
  • irrelevant in the context of de-regulated labour markets (an argument which will gain further force with the proposed abolition of 'conveniently belong' rules which presently give unions 'monopoly' representation rights for workers coming within their eligibility rules).

The proposed amendments take away the AIRC's power to award preference and seek to render inoperative existing preference clauses (see Item 4 and proposed sections 94 and 298Y). Relying on a range of constitutional powers, the amendments seek to outlaw all forms of union security device including compulsory unionism. General provisions are to be enacted with the intention of providing comprehensive protection for employers, employees and independent contractors from any form of discrimination based on their employment status, membership or non-membership of industrial organisations, and their conduct in relation to organised industrial action.

As a consequence of the proposed amendments, the current federal regime for providing protection for those with recognised ethical objections to union membership is also to be repealed.

Proposed section 298B defines 'industrial association' so as to include non-registered bodies, ie unions outside the formal federal system of conciliation and arbitration will be caught by the law including State registered bodies.

Proposed subsection 298B(2) deems conduct of union members in regard to matters covered by the schedule to be have been done by the union unless the union has taken reasonable steps to prevent that action. This provision also applies to other industrial associations as defined.

The schedule specifically provides for the concurrent operation of laws of the States and Territories dealing with discrimination in employment (proposed section 298J).

Proposed section 298L lists prohibited grounds of discrimination. These appear to include all existing prohibitions.

Proposed section 298V shifts the burden of proof from persons making a complaint alleging discrimination to those seeking to defend themselves against such a complaint. Complainants must, however, allege a reason for the prohibited conduct.

Proposed section 298U provides for a range of penalties and remedies in relation to breaches of the provisions. The federal court may impose a maximum penalty of $ 2000 on individuals and up to $ 10 000 in the case of corporate entities.

Comment: The impact of union preference has declined considerably in the federal jurisdiction in recent times both due to the fall in union numbers and on account of an amendment made to the Act in 1993 which effectively prohibited preference operating in relation to termination of employment (section 170DF). Some concerns may be raised as to the combined effect of deeming and reverse onus of proof provisions in the same scheme. The Bill preserves the concurrent operation of State law which prohibits compulsory unionism and preference (proposed sections 298J and 298W). At the same time it overrides State laws which may permit forms of union security device where the employer is a corporation (refer proposed sections 298F and 298G).

Schedule 17 - Transfer of Jurisdiction of Industrial Relations Court of Australia to the Federal Court

The Industrial Relations Court (IRCA) will be abolished but not until after the last judge of the Court ceases to hold office. In the interim, the work of IRCA is to be transferred to the Federal Court.

The proposal to abolish the IRCA, had it been handled differently, had the potential to raise constitutional issues and concerns as to judicial tenure and the separation of powers doctrine. As it is, it appears that the only matters which may require some clarification relate to the future treatment of persons currently employed by IRCA and the retention of some of the 'user-friendly' practices developed by the Court.

(i) History

Professor James Crawford has summarised the history of what is now IRCA in the following terms:

The federal arbitration system was established soon after federation, in 1904. The Commonwealth Court of Conciliation and Arbitration, the principal organ, was presided over by a High Court Judge until the 1920s, and thereafter by judges specifically appointed. But in the Boilermaker's case in 1956 [ R v Kirby Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254] the High Court held that the Court could not exercise both the 'quasi-legislative function of making awards and the judicial functions of interpreting and enforcing them. Two new bodies resulted: to exercise the non-judicial power of conciliation and arbitration, the Australian Industrial Relations Commission (before 1989 the Australian Conciliation and Arbitration Commission) and for strictly judicial functions, the Industrial Division of the Federal Court (which in 1977 replaced the Australian Industrial Court).(45)

In 1987, the Hawke Government proposed sweeping changes to Australia's industrial laws including the creation of a separate Labour Court: the Industrial Relations Bill 1987 and the Industrial Relations (Consequential Provisions) Bill 1987. These Bills broadly reflected the recommendations of the tri-partite Committee of Review into Australian Industrial Relations Law and Systems under the Chairmanship of Professor Keith Hancock (the Hancock Committee).

The most controversial aspect of the 1987 legislation was the so called 'compliance package' which sought to codify a number of common law and statutory restraints on industrial action, transfer jurisdiction for sections 45D and 45E of the TPA from the Federal Court to a (new) Labour Court, and establish a procedure under the IR Act for securing dispute resolution and compliance with Commission decisions and directions.

On 26 May 1987, Minister Willis announced that the Government had decided to defer debate on the Bills until the 1987 Budget Session. On the following day, Prime Minister Hawke, secured a simultaneous election for the House of Representatives and the Senate for 11 July 1987. The 1987 Bills lapsed with the issuing of the writs for the double dissolution and, on 6 June 1987, the Government announced that it considered it impractical to proceed with the proposed compliance measures. On 28 April 1988, the Hawke Government introduced a re-modelled set of proposals based on its 1987 Bills: the Industrial Relations Bill 1988 [Act No.86 of 1988] and the Industrial Relations (Consequential) Provisions Bill 1988 [Act No. 87 of 1988] ('the 1988 Acts').

The 1988 Acts, which came into effect on 1 March 1989, did not retain the 'compliance package' put forward as part of the 1987 Bills including the proposal to create a separate Labour Court.

Criticism of the Labour Court centred on provisions permitting members of the proposed Court to hold concurrent commissions as members of the Industrial Relations Commission. The 1993 reforms did not persist with this proposal.

Nonetheless the present legislation has not escaped criticism. In a Media Release issued on 25 October 1993, the Law Council of Australia commented:

There are at least two major areas of concern. First, the setting up of a new specialist court in the context of the resolution of a political impasse between powerful forces in society gives rise to the apprehension . . . that the court will not be perceived as intended to administer impartial justice independently and fearlessly according to the rule of law.

The Law Council is not aware of any problems or shortcomings in the way in which our industrial laws are administered by the Federal Court, which is, after all, the superior trial court in the federal jurisdiction. That the Government should consider it necessary in these circumstances to establish a new specialist court makes one wonder whether a different kind of justice is there to be dispensed according to special rules.

(ii) The IRCA

The IRCA was nonetheless created following the passage of the Industrial Relations Reform Act 1993 which came into effect on 30 March 1994.

The Court is a superior court of record and has equal status to the Federal Court of Australia and the Family Court of Australia..

Unlike the proposal for an Australian Labour Court contained in the Industrial Relations Bill 1987, the legislation does not provide for members of the IRCA also to be members of the federal industrial tribunal, the Australian Industrial Relations Commission (AIRC).

The IRCA comprises eleven judges including the Chief Justice, the Honourable Murray Wilcox. All members of the Court hold concurrent commissions as Judges of the Federal Court of Australia and participate in its work. Five judges work principally on the IRCA, six principally on the Federal Court.

In 1995-96, the IRCA employed the equivalent of 52 full time staff. This was to increase to 86 during the present financial year. Of these 16 are industrial registrars who are statutory office holders. IRCA's running and associated costs for 1994-95 were just over $10 million. Provision to meet these costs was increased to slightly under $12 million in the current financial year (Attorney-General's Portfolio, Portfolio Budget Statements 1995-96: 108-109).

The IRCA's jurisdiction is somewhat similar to that of the body it replaced, the Industrial Division of the Federal Court. It deals with the interpretation and enforcement of awards, questions of law referred to it by the AIRC or the Registrar, and enforcement proceedings in relation to boycotts. It also has responsibility for reviewing unfair contracts under sections 127A - 127C of the Industrial Relations Act 1988 (the Act).

Unlike its predecessor, the IRCA has jurisdiction (on referral of a matter by the High Court) in relation to challenges to the jurisdiction of the AIRC. This has allowed the High Court to avoid having to deal with, except in exceptional circumstances, comparatively trivial matters and may result in greater efficiency in dealing with industrial disputes by avoiding delays inherent in requiring that all jurisdictional matters be dealt with by the High Court. [It may be noted, that similar provisions could have been enacted to widen the jurisdiction of the Industrial Division of the Federal Court. This merely would have followed the practice in relation to other matters coming within the High Court's jurisdiction under section 75(v) of the Constitution - specifically matters involving the review of actions of 'officers of the Commonwealth,' by the courts).]

The IRCA's main work is in reviewing unlawful termination of employment under the Act. Both the Commonwealth's and the IRCA's own role in relation to these matters have expanded rapidly following the passage of the 1993 Reform Act with subsequent rulings by IRCA channelling most matters away from the State systems.

With the primary workload in respect of termination already transferred to the AIRC and the Coalition planning to abolish the unfair contracts jurisdiction (see Schedule 6 above), there would appear to be less justification for the continuation of a separate industrial court. (An ongoing jurisdiction could include the enforcement of provisions of the Act dealing with registered bodies, eg amalgamation, elections, rules and membership.)

(iii) Tenure

Judges of the IRCA have the same tenure as members of the High Court of Australia, the Family Court and the Federal Court.

These rights derive from section 72 of the Constitution which provides (in part) that:

The Justices of the High Court and of the other courts created by the Parliament -

(i) Shall be appointed by the Governor-General in Council:

(ii) Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity:

(iii) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.

The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age.

The appointment of a Justice of a court created by the Parliament shall be for a term expiring upon his attaining the age that is, at the time of appointment, the maximum age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court.

Thus Justices of the Industrial Relations Court do not enjoy life tenure but, except for misbehaviour, continue in office till turning 70 as section 72 now provides that the retiring age for federal judges is age 70. This limitation on the tenure of federal justices came about as a result of a constitutional amendment carried in 1977.

The provisions of section 72 do not, however, apply to tribunals or other 'court-like' bodies such as the Australian Industrial Relations Commission and its predecessors.

Although the Constitution restricts the capacity of the Parliament to remove judges from office, it does not restrict Parliament's ability to abolish courts created by act of Parliament. (The High Court is created by the Constitution and therefore cannot be abolished without amending the Constitution.)

By convention, however, the Commonwealth has not acted to abolish courts created by the Parliament and where the federal judicature has been subject to restructuring, all existing office holders have been offered appointment to the new or restructured court.

In 1956, the High Court ruled in the Boilermaker's case that the Commonwealth Court of Conciliation and Arbitration was not validly constituted as a court because its members performed both judicial and non-judicial functions. The Commonwealth was obliged to replace the Court with two new bodies, a Court and a Commission. All members of the former court were appointed to either the new Court or the new Commission at their existing level of seniority and according to their qualifications and status. Indeed, the Commonwealth Court of Conciliation and Arbitration was not finally abolished until 1973 when the last member of that Court (Sir Richard Kirby) retired.

When the Federal Court of Australia began work on 1 February 1977, it took over the responsibilities of the Federal Court of Bankruptcy and the Australian Industrial Court. Neither of those two courts was abolished until the remaining members of the Bankruptcy and Industrial Courts had retired. However, contrary to convention, and to the spirit of the 1977 constitutional amendment abolishing life tenure, two judges aged over 70 but enjoying life tenure from their previous appointments, were not offered commissions on the new federal Court.

The High Court has not been asked as yet to decide on the issue of whether a court created by the federal parliament can be abolished.

Comment: The Coalition's plans for the Court are neither surprising nor, as it transpires, particularly controversial. In this regard, it may be noted that the Coalition consistently opposed the creation of the IRCA. To quote the present Attorney-General, the Member for Tangney, Daryl Williams QC (in opposition):

The government has been completely silent in explaining the need for the establishment of this new court. No rationale is provided in either the second reading speech or the explanatory memorandum. This silence is really quite extraordinary. (Parliamentary Debates, 22 November 1993: 3293)

The need for such a court has been questioned by those outside the political debate. To quote two eminent labour lawyers:

That said, it is not clear that the creation of IRCA will serve any useful purpose. If the principal rationale for establishing a separate court was that it could be comprised of persons with a particular expertise in the industrial relations arena, then it is hard to see that the new court enjoys any significant advantage over the former Industrial Division. . . . It is tempting to conclude, therefore that the creation of the court was largely a matter of political expediency rather than legal or industrial necessity. (Breen Creighton and Andrew Stewart, Labour Law: An Introduction, 2nd edit, 1994: 88-89)

It would have been a matter for concern if the Government had not maintained the status and entitlements of the present members of the IRCA. However, Item 72 preserves the terms and conditions of appointment of all Judges of the Court and Item 73 appoints all Judicial Registrars of the IRCA as Registrars of the Federal Court for the remainder of their terms. Item 78 provides that the Chief Justice of the IRCA continues in office with responsibility for the continued management of the Court.

Schedule 18 - Boycotts

The Coalition Industrial Relations Policy document, Better Pay for Better Work (BPBW), states that:

Secondary boycotts will not be permitted and provisions based on the former sections 45D and 45E of the Trade Practices Act will be re-enacted.(46)

The amendments provided for under Schedule 18 meet the Government's election commitment but if enacted may place Australia in breach of its international obligations in relation to freedom to organise and the right to take collective industrial action. In this regard, the main concern is not that sections 45D and 45E ban secondary boycotts but that they appear to ban sympathy action and also prohibit most primary boycotts (ie ordinary strikes).

The provisions set out in Schedule 18 are, as is the case with the present law and the law as it existed prior to the 1993 Reform Act, extremely complex and the full ramifications of what is proposed will require more detailed consideration than can be engaged in here.

One source of complexity is that the terminology used in the Bill and its predecessors is itself difficult.

As an indication of the difficulties associated with coming to terms with the secondary boycott laws it will be remembered that in the twelve months till October 1993, the Senate Standing Committee on Employment Education and Training (the Senate Inquiry) devoted considerable time and effort to former sections 45D and 45E without reaching substantial agreement as to the worth of those provisions.

(i) Terminology

The complexity arises from a range of factors. First, the concept of 'secondary boycott' is elusive. As observed in the former Government's submission to the Senate Inquiry:

Sections 45D and 45E are frequently referred to as the 'secondary boycott' provisions of the TP Act. This, however, is a misnomer and reflects a widespread misunderstanding of the scope of the provisions and the conduct they seek to constrain.

The submission then went on to explain the distinction between primary and secondary boycotts. An example will illustrate the principal difference. One simple form of secondary boycott is where two or more workers in dispute with their employer (A) ask workers engaged by a business (B) which deals with employer (A) to restrict the flow of goods or services between the two firms. Critics of secondary action frequently refer to business (B) as the 'innocent third party' thereby making a distinction between an ordinary dispute between an employer and his/her workers where (prima facie) either or both parties are to 'blame'. By definition, in a secondary boycott, one party is being injured for the sole purpose of 'getting at' another. In reality, of course, the facts are not always so clear cut. The so called 'innocent' third party may not be so innocent as for example where its business arrangements with the target employer are directly impeding the target's workers from securing a resolution to the matter in dispute.

A further source of confusion is the variety of relations covered by the generic term 'secondary boycott'. There is also no consistent usage of terminology dealing with such action and a host of expressions such as 'secondary action', 'sympathy strike', 'solidarity action' are used interchangeably even though they might describe quite different situations.

A most important instance is the distinction between 'sympathy action' and 'secondary boycotts' both of which were rendered unlawful by section 45D. Although treated similarly under the TP Act prior to the Keating Government amendments, these are distinct forms of industrial action under International Labour Organisation jurisprudence. The distinction is that whilst the ILO has 'never expressed a decided view on the use of secondary boycotts' (ILO, 1989 Direct Request), it appears to believe that sympathy action ought not be unlawful where the initial industrial action in respect of which such sympathy action is taken is itself lawful (ILO, 1991 Direct Request).

More importantly, however, secondary boycotts should not be confused with ordinary strikes (where there is, in law, no innocent third party). When a group of workers take direct action against their own employer they may be said to be engaging in a primary boycott.

(ii) History

The following extracts from the former Government's Information Paper for the Senate Standing Committee on Employment Education and Training provide useful background on the history, use and implications of boycott provisions.(47) (For the sake of brevity relevant footnotes contained in the text have been either deleted or incorporated in the relevant text.)

Sections 45D and 45E were inserted into the Trade Practices 1974 in 1977 and 1980 respectively. Whilst forming part of the Commonwealth statute targeting anti-competitive conduct and outlawing deceptive business practices, the sections have most often been used to restrain industrial action by trade unions.

The sections are controversial and complex, forming part of a mosaic of laws which render unlawful virtually all forms of industrial action by trade unions and workers individually.

The sections have produced a steady, though fluctuating, stream of litigation. Their constitutional validity has been challenged and, substantially, upheld. [Ref. Seamen's Union of Australia v Utah Development Co (1978) 144 CLR 120 and Actors and Announcers' Equity Association of Australia v Fontana Films Pty Ltd ("the Fontana Films Case") (1982) 150 CLR 169]

Actions taken under the boycott provisions of the TP Act have been associated with some of the most widely reported industrial confrontations of the past two decades. These include a 1980 dispute in New South Wales involving Leon Laidley Pty Limited and some members of the Transport Workers' Union ('TWU') over job security and management rights concerning the sale of discount petrol; a protracted dispute in the mid 1980s in the Northern Territory over work practices at the Mudginberri Abattoir; and, more recently, the use of contract labour occasioned by the activities in Victoria of the labour hire firm, Troubleshooters Available. Apart from attaining a degree of notoriety, each dispute and subsequent legal proceedings have reinforced conflicting views on the efficacy and significance of the provisions.(48)

Such high profile industrial disputes and court actions, allied with regular political debate at the Federal and the State level over the use of sections 45D and 45E, have formed part of a larger and long-running debate over the use of legal sanctions to restrain strike activity and other forms of industrial action.

The controversy over sections 45D and 45E is perhaps predictable, arising, to some extent, from the difficulty in reconciling the principles of the right to strike with the protection of third parties from deliberate harm in the course of industrial disputes.

The use of the sections has been notable for several reasons including the following:

  • relatively few of the actions have proceeded to trial or led to an award of damages;
  • the sections may and have been used to limit most forms of industrial action not just secondary boycotts;
  • the sections have on occasion been employed outside the industrial arena for the purpose of inhibiting the activities of public interest groups and stifling political action;
  • the matters dealt with in the sections have a different character from the types of anti-competitive commercial conduct proscribed by Part IV of the TP Act; and
  • in practice, sections 45D and 45E have rarely been used to deal with anti-competitive conduct and the overwhelming majority of actions taken under the sections have been to stop strikes, pickets or boycotts associated with industrial action.

There is also a question of whether the economic and industrial significance of the sections and their actual application may have been somewhat overblown. By any measure, the number of workers involved has not been large, the total number of working days lost (in the national context) minimal, and the direct effect on national economic welfare, transitory. On the other hand, it is clearly arguable that the full impact of the sections goes well beyond the actual cases where they have been employed.(49)

Sections 45D and 45E have at times been seen as key points of differentiation in approaches to industrial relations. They also mark something of a watershed in the development of Australian industrial law and practice. Some see the sections as making a substantial contribution to a positive shift in Australian workplace culture. Others see them as hindering improved industrial relations and a continuation of an approach which seeks maintenance of industrial harmony through resort to legal sanctions and state intervention.

From 1977, when section 45D came into operation, up to and including 1 July 1993, 206 court actions have been commenced involving the use of both or either sections 45D and 45E.

Of these 206 cases:

  • 40% of applicants obtained an interim injunction (80)
  • 4% of applicants obtained a final injunction (8)
  • 1% of applicants obtained an award of damages (3)
  • 59% of applicants received no remedy (121)
  • no application was made for a penalty under section 76 of the TP Act.

Of the 206 actions, 18 cases have involved the use of 45E which came into effect in 1980.

Of the 18 applications under section 45E:

  • 8 also involved applications under 45D; and
  • 13 were rejected or not proceeded with.

Of the 8 actions brought under both sections, in only 2 cases was the section 45E based claim separately successful in obtaining relief.

Of the 10 instances where section 45E was resorted to on its own, only 1 case led to relief being granted by the Court.

It is evident . . . that there has been a slight, though marked, decline in the number of actions brought under sections 45D and 45E since the beginning of 1991. Of the 23 cases brought before the Federal Court in that period:

  • 25% of applicants attained an interim injunction
  • 6% of applicants obtained a permanent injunction
  • only one applicant obtained an award of damages
  • no applications proceeded to the granting of a statutory penalty under section 76 of the TP Act.

A small number of actions have also been recorded involving the use of the sections against businesses, ie, actions in which unions have not been the defendant.

What is also apparent is that unions have generally not sought to make use of the authorisation mechanism provided for under section 88 of the TP Act. Research done by staff of the Trade Practices Commission revealed that no authorisations have been granted. A search of the relevant journals etc shows that only one application for a section 88 authorisation was made and that application was rejected on public interest grounds.

There has been one case of a trade union seeking to bring an action against another union in connection with a demarcation dispute [Federated Ironworkers of Australia v BWIU (1989) AILR 322].

Limited use also seems to have been made of the "lessening of competition" limb of subsection 45D(1) which has not assumed great significance both for practical and evidentiary reasons. It is harder to prove a 'substantial lessening of competition' than 'substantial loss or damage' to an individual or limited number of businesses. Moreover, there will be few cases (if any) where there has been a substantial lessening of competition but no loss or damage to a business. A somewhat cursory examination of actions commenced since 1991 showed that, in actions brought against unions under section 45D, the 'substantial damage to a business' limb was in all cases either the exclusive, or substantive basis, for the action brought. Subsection 45D(1)(a)(B) ('substantial lessening of competition'), by contrast, was either not relied on at all or apparently included in the statement of claim for the purpose of covering all possible options.

A preliminary analysis was also undertaken of the number of actions coming before the AIRC under Part VI Division 7 of the Act. These actions come about as a result of applications made following an approach to the Federal Court to restrict boycott activity covered by sections 45D and 45E. A number of post 1989 cases appearing to disclose parallel action in the Federal Court and the AIRC were discovered. In most instances, however, it was shown that action had already commenced in the AIRC before injunctive relief was sought through the Federal Court. This suggests that the secondary boycott handling procedures established under the two relevant Acts are not always followed. This phenomena is explicable, however, given the likelihood of one dispute giving rise to both primary and secondary boycotts. The former finding their way into the AIRC and the latter initially (at least) coming before the Federal Court.(50)

Reporting in October 1993, the Senate Standing Committee Inquiry into the operation of sections 45D and 45E divided along party lines. The majority concluded, inter alia, that:

  • the use of section 45D and 45E, as a response to industrial action is unduly harsh, and in conflict with Australia's obligations under ILO conventions on freedom of association;
  • it is not appropriate to deal with the issue of the right to withdraw labour within trade practices legislation;
  • the fundamental principle of the right of a worker to withdraw labour should be enshrined within industrial relations legislation, and any qualifications attached thereto should be articulated within the legislative framework;
  • the legitimate rights of business to trade in goods and services without interference should be properly secured by trade practices legislation but that sections 45D and 45E, as they currently stand, achieve this result at an unacceptable cost with respect to the rights of citizens to take legitimate industrial, protest and other social action;
  • that while employers have used, or threatened the use of, sections 45D and 45E to bring about cessation of industrial action, these are not a satisfactory means of preventing and settling disputes;
  • that a mechanism must be available under industrial relations legislation to provide for the speedy resolution of industrial disputes where the primary issue is one of substantial damage to an enterprise as opposed to substantial lessening of competition in the market;
  • where a dispute has been dealt with by industrial relations mechanisms, and a speedy result has not been effected, a certificate should be issued enabling the matter to be dealt with in the civil jurisdiction; and
  • section 45D constitutes an impediment to the exercise of legitimate protest and other social action by citizens.

The minority, comprised of Senators Crane and Tierney, were of the view that:

  • the provisions are a useful device for preventing and settling industrial conflict and are predominantly used by employers as a 'last resort';
  • the provisions do not encourage a disregard for the processes of arbitration;
  • defences available under section 45D(3) of the TPA are adequate to protect employee's rights;
  • ILO Conventions should not be employed as a 'benchmark' for Australian domestic law and practice;
  • the availability of compulsory conciliation and arbitration should make all strikes unnecessary;
  • the high costs that can be imposed on business, even by relatively short strikes, must be avoided;
  • the Government had not accurately indicated the nature of the relevant ILO Conventions;
  • section 45D is no more expensive than other civil remedies and is used by innocent employers the target of boycotts including companies of all sizes; and
  • boycott action must be restricted and employers provided with a remedy which is quick, immediate and as effective as section 45D.

(iii) 1993 Reform Act

Notwithstanding the amendments sponsored by the Keating Government by way of the Industrial Relations Reform Act 1993, secondary boycotts which have an anti-competitive effect have remained unlawful at common law and subject to a range of sanctions available under the TP Act. Thus unions engaging in anti-competitive conduct are treated no differently to other persons covered by the relevant law, ie section 45D.

The main changes made by the 1993 Reform Act to the secondary boycott laws had the effect of:

  • restricting legal remedies to genuine secondary boycotts of an industrial nature, ie primary boycotts (ordinary strikes by workers against their own employer) were no longer directly prohibited as part of the regime of measures applying to secondary boycotts
  • providing that both trade practices and industrial laws cannot be used for stifling political action for non-commercial purposes by public interest and community groups (eg green bans)
  • transferring jurisdiction for secondary boycotts to the Australian Industrial Relations Commission (AIRC) and the Industrial Relations Court of Australia (IRCA)
  • abolishing pecuniary penalties for secondary boycotts whilst decriminalising boycott activity and retaining the right of injured parties to ultimately sue for damages
  • expanding available defences and exclusions to persons engaging in what otherwise would be treated as unlawful conduct .

These revised provisions dealing with boycott activity of an industrial nature are principally dealt with under sections 162 and 163 of the Industrial Relations Act 1988.

Comprehensive statistics are not available on the operation of the Reform Act provisions but it appears that there has been little reluctance amongst employers to use the current provisions with the number of actions commenced in the AIRC at least keeping pace with the number commenced in the Federal Court under the previous law. (It must be noted, however, that the remedies available under the respective provisions are not strictly comparable.) There also appear to be only relatively minor delays in gaining injunctive relief in the minority of cases where it has been pursued.

(iv) 1996 Proposals

At first blush these appear to re-enact the old (pre 1994) law with only marginal changes. Amongst those changes are:

  • re-instituting provisions which deem unlawful conduct taken by union members and officials to be the responsibility of the union thereby exposing the union to liability unless it can show that its members or officials acted without authority (proposed section 45DC);
  • incorporating the provisions into the proposed national Competition Code; and
  • continuing some post 1994 exemptions in cases of 'technical' or constructive secondary boycotts which may arise where, employees take boycott action in concert with non employees of the target employer (refer-Explanatory Memorandum, page 183: par 18.8). This provison reflects a continuing intention to exclude employees from liability except in cases where their conduct is specifically rendered unlawful by the TP Act.

In summary, the Bill will:

  • consolidate Commonwealth legislative provisions under the TP Act rather than retaining the present split whereby 'industrial aspects' of secondary boycotts are dealt with under federal industrial law and non industrial aspects (primarily conduct of an anti-competitive nature) come within the ambit of the TP Act;
  • transfer responsibility for enforcement proceedings from the specialist industrial court (the Industrial Relations Court of Australia) to the more general jurisdiction of the Federal Court;
  • make separate provision ( proposed section 45E) for collusive arrangements between employers and unions;
  • expose unions to the hefty sanctions applicable under the TP Act rather than the more modest statutory remedies presently available under the IR Act. Item 2 inserts new section 76(1A) into the TP Act to provide for pecuniary penalties for corporate bodies (this includes unions by virtue of their registration under the Industrial Relations Act) of up to $ 750 000 for breaches of proposed sections 45D, 45DB, 45E or 45EA. For anti-competitive conduct in breach the TP Act, unions can be fined up to $10 million (conduct in breach of proposed section 45DA);
  • whilst retaining existing access to common law remedies for damages, the proposed changes provide for a less restricted system of injunctive relief for persons affected by boycott activity;
  • protecting individual union members from actions for damages for prohibited conduct sanctioned or deemed to have been sanctioned by their union [proposed subsection 45DC(4)];
  • conciliation of boycott disputes will continue to be available in the AIRC but will not be able to 'hold up' the commencement of court proceedings for up to 72 hours as at present where the AIRC considers that there is a reasonable prospect of resolving the dispute by conciliation;
  • the Commonwealth law will no longer override State boycott legislation, hence persons engaged in prohibited boycott activity may be liable either under an amended TP Act, State boycott laws, or at common law;
  • existing statutory defences will be restricted but appear wider than under the pre 1993 law;
  • with the re-introduction of measures similar to what were 45D(1A) and 45D(1B) under the pre-1993 law, the TP Act will also outlaw many ordinary strikes as well as secondary boycotts (see proposed section 45DB);
  • new subsection 45DC(1) deems unions to have engaged in boycott conduct in certain situations. It is claimed in the Explanatory Memorandum that this proposed provision is different to the provision held unconstitutional in the Fontana Films case (1982). The issue of validity will again turn on the question of whether the proposed law is a law with respect to constitutional corporations or interstate trade and commerce;
  • proposed section 45DB would appear to extend beyond the industrial context and include activity of a political nature (eg green groups protesting the export of woodchips and uranium etc)(51); and
  • consumer boycotts are not prohibited [section 51(2A) of the TP Act].

Schedule 19 - Trade Union Training Authority

The Schedule provides for the abolition of the Trade Union Training Authority (TUTA) and for its operations to be wound up.

TUTA in 1995-96 has the equivalent of 46 full-time staff and a budget of $8.7 million.(52)

TUTA owns the Clyde Cameron College and the land on which it is built in Wodonga. The College consists of training rooms and residential accommodation for approximately 70 participants with library and research facilities. The land and buildings were revalued at $6.5million on 30 June 1993.(53)

TUTA is administered by an Executive Officer who is responsible for the conduct of the affairs of the Authority in accordance with policy formulated by the Executive Council which in turn subject to Ministerial direction.

The TUTA was established by the Whitlam government under the Trade Union Training Authority Act 1975 (the Act). Under section 5 of the Act, the functions of the Authority are:

  • to plan and develop, and to undertake, programs of trade union training in Australia;
  • to co-ordinate trade union training in Australia;
  • to promote the provision and undertaking of trade union training;
  • to keep the trade union training that is being provided in Australia under constant review and to re-assess and re-evaluate that training in the light of experience; and
  • to do anything incidental or conducive to the performance of any of the preceding functions.

The Authority also produces publications and training materials and consults with trade unions on their internal training programs.

Courses are also conducted in various regional centres. TUTA also provides correspondence courses for trade unionists.(54) Regional Centre Programs are generally directed towards new or inexperienced job representatives whilst courses conducted at the Clyde Cameron College are tailored more for experienced union representatives and those who have completed the basic skills programs provided through the Regional Centres.

The bulk of TUTA's annual budget is provided by the Commonwealth although there is a small trade union contribution to the cost of courses conducted at the Clyde Cameron College.

On 7 November 1973, the then Minister for Labour and Immigration, the Hon. Clyde Cameron announced that the Government had approved a proposal for providing financial assistance for the development of trade union training in Australia. In doing so the Minister argued:

... that it was reasonable and sensible that the Government should support trade union training just as it has devoted public resources to the training of management personnel, such as the recent commitment to finance a National School of Management at the University of NSW.(55)

The Liberal and Country Parties supported the concept of a National Council for Trade Union training, (April 1974 Employment and Industrial Relations Policy) but saw its task as supporting, in appropriate existing educational and training institutions, programs specifically designed to meet the needs of trade unions. The Hon. Malcolm Fraser, then Opposition spokesman on Labour, was quoted in the Education Age on 12.3.74 as saying that a Liberal Government would widen the scope of the national college to provide facilities for employers as well as unions. He appeared to endorse the suggestion of the Australian Council of Employers' Federations (ACEF)(56) that the college might develop into a centre for 'ideological indoctrination'.

On 30 March 1977, the Hon. A.A. Street, then the Minister for Employment and Industrial Relations in the Fraser Government, announced the establishment of an inquiry into trade union training.(57) The Inquiry was to examine:

  • the desirability of integrating trade union training into industrial relations training generally and the closer integration of trade union training with the general education system;
  • the role, membership and staffing of the Statutory Authority concerned with trade union training; and
  • the cost and methods of financing trade union training.

The Committee of Inquiry, chaired by Commissioner Paine, reported to the Government in August 1977. Its findings included the following recommendations:

  • trade union training should not be integrated into a general system of industrial relations training but must be fully conscious of its responsibilities in the area of industrial relations and be seen as part of an ongoing process towards the orderly conduct of industrial relations;
  • TUTA courses should provide for greater employer involvement in training activity. Courses should provide trade unionists with an understanding of the organisation and operation of commerce, industry and the various employer organisations and the manner in which they relate, not only to each other, but also to governments and the community;
  • TUTA should be retained as an independent training institution and not absorbed into the general education system but there should be a closer relationship established with technical and further education;
  • a system of industrial relations training for unionists and representatives of employers, separately and jointly according to need, should be developed and carried out by TAFE;
  • trade union training should essentially be training to equip trade unionists with the necessary skills, knowledge and understanding relevant to the function required to be performed. Such training should be essentially technical and practical training;
  • TUTA should conduct a complete evaluation to determine the specific extent of training both as to course content and numbers required by undertaking an analysis of training requirements according to the skills, knowledge and understanding each group or individual requires to conduct his or her function within the trade union movement;
  • trade union training, as one of many facets of the total education and training system, should continue to be funded by Government through the Minister for Employment and Industrial Relations;
  • the funds to be provided for trade union training should be commensurate with the Authority's training program;
  • the funding of any joint industrial relations training at the Clyde Cameron College should be the subject of discussions between employers, trade unions and Government; and
  • the two issues of paid educational leave and wage reimbursement should be the subject of tripartite discussions.(58)

The Fraser Government accepted the general thrust of the Committee's Report and on 25 May 1978 Minister Street introduced legislation primarily directed toward restructuring and reforming the management of the Authority. However, the changes to the Act, which lessened the apparent influence of the union movement over TUTA, went beyond the recommendations contained in Commissioner Paine's Report.(59)

The ALP unsuccessfully opposed the Bill, claiming that:

  • no questions had been raised within the Authority, by the Minister or his Department about any lack of efficiency or effective management within TUTA;
  • the amendments would lead to political appointments to TUTA and political inference;
  • the position of National Director regularised by the amending Act was likely to be over-paid.(60)

The Trade Union Training Authority Amendment Act (No. 1) 1978 came into operation on 1 August 1978.

Legislation enacted in 1981 altered the composition of the Australian and State councils following the amalgamation of a number of peak union councils with the ACTU.(61)

The next major set of amendments to the Act were made by way of the Statute Law [Miscellaneous Provisions Bill (No.1)] 1985. These amendments:

  • abolished the existing Australian Council for Trade Union Training and established a new Council;
  • vested in the new Australian Council responsibility for the formulation of the policy of the Authority, which had been the responsibility of the Executive Board;
  • abolished the Executive Board and established an Executive Committee, the functions of which are now determined by the Australian Council;
  • abolished the State Councils for Trade Union Training and provided for a Regional Council for each State and Territory, with the responsibility of ensuring that training provided by the Trade Union Training Centre for the State or Territory accords with the policy formulated by the Australian Council; and
  • clarified the duties of the Director of Studies.

These changes went some way to addressing the concerns expressed by the labour movement during debate on the 1978 Act.

Because of a minor defect in the relevant provisions of the 1985 Act the Government felt compelled to introduce the Trade Union Training Authority Amendment Bill 1986.(62)

The last major set of amendments to the TUTA Act were in 1991 which, amongst other things, altered the constitution of the Executive Council.

In 1994, TUTA underwent a major restructuring which resulted in the decentralisation of the training of union delegates and members. This process, called the Union Training Scheme, has returned the responsibility for the training of union delegates back to individual unions. This process has also contributed to a significant reduction in TUTA costs and staffing with TUTA staff only operating out of three locations instead of nine as was the case until 1994.(63)

Schedule 20 - The Short Title of the Industrial Relations Act 1988

Reflecting the extent of the changes provided for in the Bill, the title of the principal Act is to amended to the Workplace Relations Act 1996.

The Schedule provides for consequential changes to references to the Act in other Commonwealth laws.

Schedule 21- Miscellaneous

This Schedule makes a number of minor and technical changes to the principal Act.

Items 2 and 7 make it plain that a person engaged in an unpaid vocational placement is not an employee.

Item 6 alters the definition of Vice President of the Commission to reflect the abolition of the Bargaining Division.

Sections 267 and 320 are repealed as it will no longer be necessary for the Commission to protect conscientious objectors to union membership from discrimination arising from awards of union preference made by the Commission.

Remarks

It has been a prodigious effort on the part of all those involved to formulate, draft and present this package of measures in the timeframe set by the Government.

On the 23 May 1996 the Senate voted to refer the Bill to the Economics References Committee(64) for inquiry and report by 22 August 1996.

The terms of Reference of that Committee are extensive and go well beyond the specific provisions of the Bill and include such matters as the implications of the legislation for the Australian economy and the impact on the balance between work and family responsibilities and youth employment, education and training.

These terms of reference in part reflect some of the expansive claims made regarding the likely implications of the legislation. Minister Reith in a major speech delivered about one week before the Bill was presented repeated the claim in the Coalition's Policy platform (BPBW) that:

A more flexible industrial relations system will increase productivity, achieve faster real growth in wages and, most importantly, create more real jobs.

He then went on to compare Australia's economic performance under the previous Government and under the present system of conciliation and arbitration with that in other countries, comparing Australia's performance with that of the United States, United Kingdom and New Zealand on a number of selected measures.(65)

In his Second Reading Speech, the Minister also asserted that:

. . . the system this bill seeks to reform has helped contribute to a long-term decline in workers' living standards in Australia, relative to those in many other countries, while contributing to our unacceptably high level of unemployment . . .

The Minister then went on to claim that structural rigidities in the labour market are a major contributor to a list of 'sorry outcomes' including:

  • an intolerable rate of unemployment, at 8.9 percent (and a 'disgraceful' 27.8 percent for youth);
  • 'booming' current account deficits contributing to our net foreign debt of $185 billion (or almost 40 percent of GDP)
  • real wages falling or 'stagnant' over most of the Labor years, with a deteriorating gap between rich and poor;
  • 'erratic' productivity growth, with industries like the waterfront, that are so critical to our competitiveness, going backwards compared to overseas benchmarks;
  • industrial disputation, persistently high and at unacceptable levels measured against those of our competitors
  • the highest real interest rates in the developed world.(66)

It is not, of course, the function of this Digest to dispute any or all of the above claims and more importantly it is beyond the scope of this paper to seek to lay blame for the sort of outcomes which the Coalition Government clearly feels impelled to address.

In previous Digests, however, the limitations of legislative solutions to real and perceived economic problems have been noted as has the ongoing debate about the nature and impact of industrial relations institutions. In particular we have remarked on the stultifying effect of constant legislative change. To quote an earlier Digest in November 1993:

The effect of the arbitral system on economic outcomes remains an open question. (Indeed, there has been a long-standing view, principally associated with former President of the Conciliation and Arbitration Commission, Sir Richard Kirby, that the industrial tribunals do not act as an arm of economic policy-making, but function primarily to resolve industrial disputes.)

The AIRC and its predecessors have been associated with a range of wage-fixing principles and an equally varied range of economic outcomes over the course of the last 89 years. The Commission's recent performance, though criticised in some quarters (especially following the April 1991 National Wage Case Decision), has on the 'tests' of wage moderation and industrial harmony been above average. Nominal wage increases in the award area over the past three years have been very modest with the indices moving less than 2 percentage points in the past two and a half years. Concurrently, the rate of industrial disputation in terms of days lost per thousand employees is approximately 40% of the rate applying in 1982. Of this reduced figure, disputes over wages, hours of work and compensation represent a relatively small component. For example, in the 12 months to June 1993 disputes over money and hours of work represented less than 15% of the total days lost in industrial disputes. . .

Nonetheless, constant changes to the legislation (for example, three sets of major changes to the law regulating workplace bargaining arrangements in five years) produce uncertainty and provoke institutional inertia. There is a considerable risk that where legislative change becomes the norm, the parties will seek to achieve their strategic goals through the legislative route rather than by working co-operatively or imaginatively with the law as it stands.(67)

In examining the wider implications of the Bill, the Senate Economics Committee has been asked to explore a number of systemic, and perhaps unanswerable questions, regarding the worth of competing labour market models. Some of the issues the Committee may find itself having to confront are:

  • Is the primary role of the AIRC to resolve industrial disputes and, if it is, is that role unduly inhibited by further restricting the discretion of the Commission to deal only with certain matters ?
  • What, if any, are the disadvantages of moving to a more decentralised model of bargaining ?
  • Can Australia's economic performance be significantly enhanced by changes to federal industrial laws or are other arms of economic policy (including taxation policy) likely to produce far more significant and lasting results ?
  • To what extent are 'structural rigidities' endemic in all labour markets and to what degree are they unreasonably exacerbated by the arbitral model ?
  • Will the proposed changes significantly or systematically disadvantage parts of the Australian workforce ?

With regard to the overall advantages and disadvantages of the arbitral model, readers are encouraged to seek out an excellent summary piece written by Professor Charles Mulvey which appears in Alternatives to Arbitration,(68) a collection of papers prepared in the wake of the Hancock Report on Australian Industrial Relations Law and Systems (1985). (See also a subsequent paper given by Professor Mulvey to a Parliamentary Library Seminar series in 1988 entitled Issues in Industrial Relations.)(69)

As to specific issues, again there is considerable room for agnosticism about the macro economic effects of reducing the role of the AIRC. Here national rates of productivity growth provide an interesting case study.

As noted above, it is generally recognised that productivity growth in Australia in recent times (to use Minister Reith's words) has been 'erratic'. Moreover, the performance of certain industries has, according to many commentators, been particularly dismal. Indeed it is frequently assumed that Australia's productivity performance measured against comparable international standards is not good.

No one argues against enhanced productivity provided it is not achieved by socially unacceptable means. Higher productivity simply means a better return on any given level of factor inputs. It is generally reflected in a higher standard of living either through higher wages, higher profits or a combination of both.

The search for higher returns from productivity, however, may be viewed from two distinct perspectives: (a) generating the spoils and (b) dividing the spoils.

In relation to dividing the gains, it is not readily apparent that because there is more to 'go round' that the contest over 'the spoils' between owners, managers and workers alters to any great degree. This flows from the simple economic assumption that human desires are 'infinite'. Hence higher levels of productivity do not automatically equate with an end to industrial disputation. Even more productive workplaces are likely from time to time to require the services of an independent third party or umpire to resolve differences; a fact clearly, but not unreservedly, recognised in the present Bill.

In relation to enhanced economic efficiency (more 'spoils' per unit of input), the removal or downgrading of the industrial 'umpire' may make a net positive contribution but not if it increases significantly the (transaction) costs of bargaining.

Other OECD countries, including those such as the United States, with lower unionisation rates and less pervasive institutional arrangements for third party dispute resolution have also experienced flat or erratic productivity growth over the past quarter century. For example, between 1979 and 1994 US labour productivity in the business sector grew by only 0.8 percent per annum whilst in Australia the average rate was 1.2 percent. The United Kingdom, with a shrinking union movement and a decentralised bargaining system experienced labour productivity growth of 2.0 percent on average over the same period but this was lower than in the period 1960-73 when union numbers were higher and bargaining arrangements more bureaucratic.

To conclude, the answers to the questions raised by the Senate reference need to be sought not just assumed. To quote two academics who have come to be associated with the development of the present Bill, Professors Charles Mulvey and Judith Sloan:

As enterprise bargaining becomes a more embedded institutional feature of the Australian labour market, some of the questions that will need to be addressed by researchers include the following. What is the impact of enterprise bargaining on productivity both at the macro and the micro levels ? What is the impact of enterprise bargaining on observed earnings inequality ? What factors impede firms from participating in formal enterprise bargaining ? What is the role of unregistered agreements in the new environment ? What are the effects of the interaction of enterprise bargaining and compulsory arbitration ?

Ultimately, the most interesting question about institutional arrangements is whether they matter [to economic performance]. Would the substantive outcomes be any different if institutions were changed dramatically . . . at the very least we need more information on this matter . . .

Finally, international comparative analysis - one area that has burgeoned in the past decade, although not necessarily undertaken by Australian authors - clearly underlines the similarity of outcomes for countries with quite different industrial relations institutions, for instance, and likewise, the dissimilarity of outcomes for countries with similar institutions. The explanation of outcomes is clearly multi-factorial and any given change in institutional settings may have limited effect without other changes.(70)

If institutional arrangements have marginal or random effects on economic efficiency, it may perhaps be that in framing industrial laws, governments should give greater weight to other considerations such as the promotion of industrial harmony and social equity.

Endnotes

(1) The three earlier measures being the ill-fated Industrial Relations Bill 1987 and the Industrial Relations (Consequential Provisions) Bill 1987; the Industrial Relations Act 1988 and the Industrial Relations (Consequential Provisions) Act 1988; and the Industrial Relations Reform Act 1993. In late 1991, Minister Senator Peter Cook had proposals for significant changes to the Act 'on the drawing board' but legislation was not introduced.

(2) The proposal to allow State agreements to override federal awards was perhaps not flagged with sufficient detail but (arguably) is covered by the generic reference to Commonwealth/State Co-operation at paragraph 13.2 of the Coalition's IR Policy document, Better Pay for Better Work.

(3) A mandate which critics will argue is qualified by the Coalition's pre-election 'rock solid' commitment that workers will not be worse-off under this legislation.

(4) Economic Planning and Advisory Commission, Commission Paper No.11, 'The Changing Australian Labour Market', edited by Keith Norris and Mark Wooden, March 1996: 6.

(5) OECD, Economic Surveys, Australia, 1994: 78.

(6) ibid, 1994: 97.

(7) For a discussion of developments in wages policy over the past twenty years refer to Indecs, State of Play 8, 1995: 45-64.

(8) EPAC, op cit: 10.

(9) Ross Gittins, 'Mr Reith's bill of fare for industrial relations', Sydney Morning Herald, 25 May 1996.

(10) Acting through the Governor-General.

(11) Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657.

(12) Termination, Change and Redundancy Case (1984) 8 IR 34, Termination, Change and Redundancy Case (1984) 9 IR 115.

(13) The only remedy being a pecuniary penalty under section 178 granted by the Court.

(14) The Commission also exercised what is sometimes referred to as a de facto jurisdiction in regard to a range of termination matters which extended beyond the scope of its constitutional competence. In such cases, the Commission would agree to conciliate where the parties gave their prior agreement to abide by whatever outcome was reached by the Commission.

(15) Gregory v Phillip Morris Ltd (1988) 80 ALR 455.

(16) Byrne and Frew v Australian Airlines Limited (1994) 120 ALR 274.

(17) Byrne v Australian Airlines (1995) 131 ALR 422.

(18) Some categories had already been excluded as from 30 March 1994.

(19) Maggs v Comptroller General of Customs (1995) 58 IR 40.

(20) Liddell & Anor v Lembke t/as Cheryl's Unisex Salon & Anor (1994) 127 ALR 342.

(21) But refer proposed paragraph 170CC(1)(e) which has the potential to significantly widen present exemptions.

(22) op cit: 43.

(23) Except that it is possible to approach the Court for breach of notice or where there is a want of jurisdiction in the AIRC (see clause 170HC).

(24) Adele Horin, 'Women MPs oddly silent on equal pay', Sydney Morning Herald, 25 May 1996.

(25) Refer Jeff Borland and Keith Norris, 'Equity', in The Changing Australian Labour Market, EPAC Commission Paper No.11, 1996: 87-106.

(26) Submission to Hancock Inquiry, December 1983: 4.

(27) Hancock, op cit, recommendation 21.

(28) Breen Creighton and Andrew Stewart, Labour Law: An Introduction, second edition, 1994: 119.

(29) ibid: 121.

(30) Bills Digest, 12 November 1993, op cit: 10

(31) For Certified Agreements, see paragraph 170MC(1)(b) and subsection 170MC(2) of the Act. For Enterprise Flexibility Agreements refer to paragraph 170NC(1)(d) and subsection 170NC(2) of the Act.

(32) Refer paragraphs 170MC(4)(a) and (b).

(33) Subsection 170ND(7) and (8).

(34) Subsections 170NB(1) and (3).

(35) Section 170RB.

(36) Refer paragraphs 170ND(3) and (4).

(37) Paragraph 170MD(7).

(38) Paragraphs 170NA(1)(a) and 170NC(1)(b) and (c).

(39) Subsections 170MD(5) and 170ND(10).

(40) Section 88A stipulates that 'awards (other than paid rate awards) act as a safety net of minimum wages and conditions of employment underpinning direct bargaining.' Refer also paragraphs 170MC(1)(a) and 170NC(1)(b).

(41) See Division 4 of Part VIB.

(42) Refer section 170MG and 170NG.

(43) Refer sections 170MD(3) and 170ND(5).

(44) These statutory minima also apply to certified agreements.

(45) Australian Courts of Law, 1993: 256-257.

(46) op cit: 12.

(47) Lest there be any allegations of wholesale lifting/borrowing from Government publications, the author of the Digest notes that he was also the principal author of the 1993 Discussion Paper.

(48) DIR, Information Paper, August 1993: 1.

(49) ibid: 1-2

(50) ibid: 109-112.

(51) The maximum penalty here will be $ 750 000 except where the boycott also has the purpose and effect of lessening competition.

(52) Portfolio Budget Statements 1995-96, Industrial Relations Portfolio: 38-39.

(53) TUTA, Annual Report 1994/95: 27.

(54) A total of 3,052 correspondence students were enrolled in Trade Union Postal Courses in 1986/7.

(55) Report of the Interim Committee of the Australian Council for Trade Union Training 1973-74: 3

(56) A forerunner of the Confederation of Australian Industry (CAI) and the Australian Confederation of Commerce and Industry (ACCI).

(57) However, in his Press Release (No.23/77), Mr Street stated that 'the concept of trade union training and Commonwealth financial involvement had bipartisan support'.

(58) Report of Committee of Inquiry into Trade Union Training, AGPS, Canberra, 1977:47-50.

(59) See Appendix 2 for list of major amendments contained in the 1978 Act.

(60) See House of Representatives, Parliamentary Debates (Hansard) 31 May 1978: 2845-2888.

(61) Statute Law (Miscellaneous Amendments) Act 1981 and the Statute Law Revision Act 1981.

(62) Introduced in February 1986.

(63) TUTA, op cit: 7-8.

(64) This is only the second Bill to be sent to a References Committee. These as presently constituted have a non-Government majority. The voting members of the Economics references Committee are 4 ALP, 3 Coalition and 1 Australian Democrat.

(65) Address to Sydney Institute, Real Reform - the Government's Industrial Relations Agenda, 15 May 1996.

(66) Hansard, 23 May 1996: 1297-1307 at 1298 and 1299.

(67) PRS, Bills Digest, Industrial Relations Reform Bill 1993, 12 November 1993: 3 and 23.

(68) 'Alternatives to Arbitration: overview of the debate', in Alternatives to Arbitration edited by Richard Blandy and John Niland, National Institute for Labour Studies, 1986: 11-28.

(69) Professor Mulvey was one of a group of three selected by Minister Reith to oversee the drafting of the present Bill. Refer: Sydney Morning Herald, 'Anti-union Group on Reform Body', 25 March 1996.

(70) EPAC, 'Labour Market Institutions' in The Changing Australian Labour Market, op cit: 69 and 71.

Contact Officer and Copyright Details

Bob Bennett Ph. 06 277 2430
4 June 1996
Bills Digest Service
Parliamentary Research Service

The Bills Digest Service expresses its thanks to Ms Phillipa Weeks of the Law School, Australian National University for her assistance in preparing this Digest. Thanks also to Bronwyn Young, Susan Downing and Bill Bak of LPA and Stephen O'Neill of ECIR..

This Digest does not have any official legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

PRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

ISSN 1323-9032
Commonwealth of Australia 1996

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1996.



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