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This Digest was prepared for debate. It reflects the legislation as
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CONTENTS
Workplace Relations and Other Legislation Amendment Bill
1997
Date Introduced: 26 June 1997
House: House of Representatives
Portfolio: Workplace Relations and Small
Business
Commencement:
- Most of this Bill commences on the day it receives Royal
Assent; whilst
- Schedule 8, dealing with industrial matters referred to the
Commonwealth by Victoria, commences on a day to be fixed by
Proclamation, or if no date is fixed, six months after the Bill
receives Royal Assent.
To amend provisions of the Workplace Relations Act 1996
relating to:
- certified agreements;
- Australian Workplace Agreements and the Employment
Advocate;
- the no-disadvantage test;
- termination of employment;
- freedom of association and preference clauses;
- union disamalgamation; and
- matters referred to the Commonwealth by Victoria.
The Bill also makes minor amendments to five other Acts
including:
- the Navigation Act 1912;
- the Safety, Rehabilitation and Compensation Act
1988;
- the Seafarers Rehabilitation and Compensation Act
1992;
- the Superannuation Act 1976; and
- the Superannuation Act 1990.
This Bill has some substantive amendments perhaps nudging the
law in favour of employers, but most of the clauses are of the
house-keeping variety, clarifying and tidying up the Workplace
Relations Act 1996.
The Workplace Relations Act 1996 was previously known
as the Industrial Relations Act 1988, until it was
overhauled and renamed late last year by two amending pieces of
legislation:
- the Workplace Relations and Other Legislation Amendment
Bill 1996, which came into effect in stages from 31 December
1996; and
- the Workplace Relations and Other Legislation Amendment
Bill (No.2) 1996. which also came into effect in stages from
late last year.
The first of these Bills, the Workplace Relations and Other
Legislation Amendment Bill 1996, started out life as the
Coalition Government's attempt to implement a long-standing
commitment to deregulate Australia's industrial relations system.
However, the Coalition's ambitious plans were watered down in the
Senate, and the changes passed have been seen by some as less
radical than initially promised. The Act in its current form is
best seen as the linear descendant of the deregulatory changes
undertaken by the previous Hawke-Keating Labor governments.
The Workplace Relations and Other Legislation Amendment Bill
(No.2) 1996 primarily gave effect to the 11 November 1996
announcement by the Victorian and Commonwealth Governments of the
partial referral of Victoria's industrial relations powers to the
Commonwealth. These referred powers have been used by the
Commonwealth to overcome constitutional limitations and to
effectively take-over much of Victoria's industrial relations
system.
In general terms, the 1996 Acts:
- emphasised employers and employees reaching their own
agreements at the enterprise level, and introduced Australian
Workplace Agreements (AWAs) as a new vehicle for them to use;
- further reduced the role of the Australian Industrial Relations
Commission (AIRC), setting out a list of 20 key issues which the
Commission could rule on;
- established a new statutory body, the Office of the Employment
Advocate, who's primary role is to vet the new AWAs and ensure
employees are no worse off under them than they would be under the
relevant award;
- decreased the role of unions in the industrial relations
system;
- returned provisions relating to secondary boycotts to the
Trade Practices Act 1974;
- overhauled the unfair dismissal laws;
- outlawed preferences clauses for unionists;
- and incorporated the Victorian system into the Federal system
after the Victorian Government referred most of its powers over
industrial relations to the Commonwealth.
Awards and Arbitration
Item 3 in Schedule 1 inserts a
new subsection 170N(2) to make it clear that the
AIRC may vary an award during a bargaining period to make a
safety-net adjustment based on a National Wage Case decision.
Certified Agreements
The next three items affect the rights of new employees at a
workplace considering a certified agreement.
Item 1 of Schedule 2 repeals
paragraph 170LJ(3)(a) and inserts new paragraphs
170LJ(3)(a) and 170LJ(3)(aa). Under the
1996 Act, employees contemplating an enterprise agreement with
either a corporation or the Commonwealth must have 14 days to
examine the document before having to vote on it.
The amendment effectively reduces that period for employees who
begin work after the 14 days begins to run. It is aimed at ensuring
that the 14-day time period does not have to start running again if
a new employee begins work during that time.
Item 2 repeals subsection 170LK(2) and inserts
a new one, similarly aimed at ensuring that while existing
employees must receive 14 days written notice of their employer's
intention to make an enterprise agreement, the time period does not
start running again every time a new employee starts work.
Item 3 repeals paragraph 170LR(2)(a) and
inserts new paragraphs 170LR(2)(a) and
170LR(2)(aa). Section 170LR deals specifically
with enterprise agreements made to settle industrial disputes.
Again, it aims to ensure that while existing employees get 14 days
to consider a proposed agreement, the time limit does not begin to
run again if a new employee starts work.
Australian Workplace Agreements and the Employment
Advocate
Items 1 to 5 in
Schedule 3 clarify, and in some cases, extend, the
powers of officers of the Employment Advocate.
Item 1 inserts a new paragraph
83BH(3)(c). This permits a person authorised by the
Employment Advocate to enter a workplace if s/he has reasonable
cause to believe that a breach of the Act is/has/or is likely to
occur there in relation to either Australian Workplace Agreements
or freedom-of-association provisions.(1)
An authorised officer already has this right of entry for
another purpose - to check whether the Act is being complied with
(section 83BH(1)). But there is no authority under the Act at
present to enter to investigate an alleged breach. The Explanatory
Memorandum says the new subsection 'corrects an oversight in the
original drafting of subsection 83BH(3)(c)'.(2)
Item 2 repeals and replaces paragraph
83BH(4)(c). The existing subsection allows an authorised
officer to interview 'any employee' at their workplace in relation
to possible breaches of provisions of the Act relating to Workplace
Agreements or freedom of association. The new subsection is
significantly wider than the existing one. It allows the authorised
officer to interview 'any person' at the workplace in relation to
the suspected breaches. This would include, for example, an
employer.
Item 3 repeals paragraph
83BH(4)(e). This subsection gives an authorised officer
the power to inspect and copy a document produced to her/him at a
workplace under investigation. However, the next amendment in
item 4 does the same job, so
paragraph 83BH(4)(e) is no longer
required.
Item 4 amends subsection
83BH(6) to correct what clearly appears to have
been an oversight. The amended subsection allows an authorised
officer to inspect, copy and retain a document produced at a
workplace for as long as necessary. The existing subsection only
allows this if access to the document had first been refused, and
the authorised officer forced to serve a notice-to-produce to
obtain it.
Item 5 inserts new subsections
83BH(7A), 83BH(7B) and 83BH(7C). These
new subsections give an authorised officer the power to enter a
person's workplace, without using force, and interview them there
if the officer believes the person has information about whether an
Australian Workplace Agreement or freedom-of-association provisions
are being complied with.
In one sense, these new provisions are narrower than other parts
of the Act because they do not allow the officer to inspect the
premises, copy documents, or interview other people there.
However, they are a significant new weapon in the Employment
Advocate's arsenal because, for the first time, an authorised
officer is allowed to enter a workplace where breaches are not
suspected, in search of evidence in relation to a place where
breaches are suspected.
The new sections may allow an authorised officer to enter union
premises to interview union officials about possible breaches of
freedom association provisions.
Item 8 repeals and replaces subsection
170VN(2). This provision deals with the filing
requirements for Australian Workplace Agreements. Existing filing
requirements are strict, and if not met, the documents must be
rejected. Under the proposed amendment, the Employment Advocate
must accept the documents if s/he is satisfied that a party to the
agreement will not be disadvantaged by any minor
irregularities.
Item 14 adds a new subsection
170WHA(2). Under section 170WHA only the parties to an
Australian Workplace Agreement (or a bargaining agent of one of the
parties), may make submissions to the Employment Advocate in
relation to the agreement. However, the new subsection
170WHA(2) allows a person authorised in writing by a party
to the agreement to explain the party's understanding of 'the
affect of the AWA or ancillary document' to the Employment
Advocate. There are a couple of additional limitations: they may
only appear if the Employment Advocate considers it appropriate;
and they are expressly prohibited from making submissions or from
being heard for any other purpose than to explain the party's
understanding of the affect of the agreement.
The no-disadvantage test
Under the Act, before the AIRC decides whether to approve a
Certified Agreement, it must first assess whether employees would
be worse off under the proposed agreement, rather than the relevant
award. If its not clear which award is the relevant one, an
employer must apply to the Commission and ask it to determine the
appropriate Federal one.
Item 4 of Schedule 4 repeals
subsection 170XF(2) and substitutes new
subsections 170XF(2) and
170XF(3) enabling the Commission to designate a
State award if there is no appropriate Federal one.
Item 2 makes a similar alteration to the powers
of the Employment Advocate to approve Australian Workplace
Agreements, by repealing subsection 170XE(2) and
inserting new subsections 170XE(2) and
170EX(3).
Termination of Employment
Items 1, 6, 7, and 8 of
Schedule 5 seek to clarify the relationship
between State laws governing termination and Federal laws and
awards.
Item 1 is the most important. It repeals and
replaces subsection 152(1A) According to the
Explanatory Memorandum, the existing provision was designed to
ensure that employees could access State unfair dismissal
provisions even though they were covered by a Federal award.(3)
However, it also appears to have left the door open for employees
wanting to take that further and use other State provisions on
termination of employment, for example, in relation to severance
pay or redundancy consultation.
The Explanatory Memorandum calls this an 'unintended
consequence'.(4)
The new subsection removes the 'unintended consequence', by
making it clear that employees covered by Federal awards or laws
will only be able to use State laws dealing with 'harsh, unjust or
unreasonable' termination of employment - and only in so far as
they are able to operate concurrently with the award.
Items 2 and 3 impose new time
limits on some sorts of applications to the AIRC in relation to
employment termination.
Item 2 is the more important. It changes the
effect of subsection 170CE(7) by imposing a 21-day time limit on a
union applying to the AIRC on behalf of an employee over an
employer's decision to sack. At the moment, their is no time limit
on a union in this situation. This change puts a union into the
same position as an individual - who must apply to the AIRC within
21 days of being notified of a decision to sack. However, in
practice, it may be harder for a union to meet the time limit, for
example, because it must first be notified of the situation by a
union member.
Item 5 deals with the maximum amount of money
the AIRC may award to an award employee who has been unfairly
dismissed. Existing paragraph 170CH(8)(a) provides for a pay-out of
no more than the employee received in the six months prior to the
termination. However, that does not cater for the situation where
the employee was paid LESS than their entitlement. The new
subsection does.
New paragraph 170CH(8)(a) provides for a
maximum pay-out equal to either: what the employee was paid in the
previous six months; or what the employee was entitled to have been
paid - whichever was the higher.
Freedom of association
Schedule 6 of the Bill inserts new provisions
dealing with preference clauses. They ensure that an agreement may
not be certified if it has a preference clause in it contrary to
the freedom-of-association provisions contained in Part XA of the
Act. If it is certified, then an appeal against that decision will
lie to the Full Bench of the AIRC. These amendments also provide a
mechanism for removing void preference clauses from existing
agreements and awards.
Item 1 inserts new paragraphs
45(1)(eaa) and 45(1)(eba). These provide
for appeal rights to the Full Bench of the Commission against a
decision to approve an agreement containing a preference clause, or
a refusal to remove a preference clause from an existing agreement
or award. (Subsection 45(1)(eba) is linked to
item 6 below).
Item 2 inserts new paragraphs
45(3)(ba), 45(3)(baa) or 45(3)(bab).
These specify who may bring an appeal, and include the Employment
Advocate.
Item 3 inserts a new subsection
170LU(2) requiring the Commission to refuse to approve an
agreement, if the Commission is satisfied it contains a preference
clause or permits or requires conduct contrary to the
freedom-of-association provisions in the Act.
Item 5 inserts a new paragraph
170MD(7)(e). This provides that a certified agreement may
be varied during its life to remove a preference clause. (Certified
agreements may only be varied for specified reasons as set out in
the Act.)
Item 6 inserts a new section
298Z. This requires the Commission to remove preference
clauses from existing awards and agreements on application by
specified people or groups.
Registered Organisations
The four items in Schedule 7 contain technical
amendments relating to union disamalgamations. According to the
Bill's Explanatory Memorandum, Schedule 7 'corrects an unintended
limitation on the circumstances in which a constituent unit of a
registered organisation can apply to withdraw from an amalgamation
and clarifies how such applications can be made...'.(5)
Matters referred by Victoria
On 11 November 1996, the Victorian and Commonwealth Governments
announced that Victoria would be handing specific powers over
industrial relations to the Commonwealth. This agreement was given
legislative effect by, on the part of Victoria, the
Commonwealth Powers (Industrial Relations) Act 1996 (Vic),
and, on the part of the Commonwealth - the Workplace Relations
and other Legislation Amendment Bill (No.2) 1996. These
referred powers have been used by the Commonwealth to overcome
constitutional limitations and to effectively take over Victoria's
industrial relations system.
The items in Schedule 8 use the expanded powers
in two principle ways: to bind more successor employers to
Certified Agreements or Australian Workplace Agreements (many are
bound already by other provisions in the Act); and to confirm the
Commonwealth's expanded powers in Victoria in relation to
Australian Workplace Agreements.
Miscellaneous Amendments
Item 1 of Schedule 9 amends
paragraph 152(5)(a) of the Act. This section is
one of a number dealing with the relationship between State awards
and laws, and Federal ones. As a general rule, a Federal law or
award will take precedence over a State one. However, there are
some exceptions. This section provides one. It says that a Federal
award will not take precedence over a state enterprise agreement
either in existence, or to come into existence, providing a number
of conditions have been met. These conditions include that the
agreement must have been approved under State law, by a State body,
which examined the agreement to ensure it passed a 'no-disadvantage
test' (that is, that the employees would be no worse off under the
agreement than under the relevant award). Item 1
amends the section to specify that the relevant award which the
agreement must be compared with, is a State award, not a Federal
one.
The rest of the items in this schedule either remove redundant
provisions, or update their terminology.
Amendments to other Acts
Schedule 10 makes minor technical amendments to
the followings Acts:
the Navigation Act 1912;
the Safety, Rehabilitation and Compensation Act
1988;
the Seafarers Rehabilitation and Compensation Act
1992;
the Superannuation Act 1976; and
the Superannuation Act 1990.
In his second reading speech, the Minister for Workplace
Relations and Small Business, the Honourable Peter Reith, indicated
the Bill had the support of the peak employer group, the Australian
Chamber of Commerce and Industry, and was not opposed, for the most
part, by the Australian Council of Trade Unions (ACTU).(6)
Apparently, the ACTU opposes:
- allowing for the removal of preference clauses breaching the
freedom-of-association provisions;
- reducing the 14-day waiting period for new employees starting
work at a workplace already considering an enterprise agreement -
the ACTU would rather the AIRC be given the ability to waive the
time-limit if it believes it would unreasonably prolong approval
and was not being used as a device to avoid the approval
process;
- giving increased powers to officers of the Employment
Advocate;
- allowing a person who is not a party to an AWA to appear before
the Employment Advocate to make submissions about the party's
understanding of the effect of the agreement - the ACTU is
concerned that lawyers will be the ones most likely to take
advantage of this; and
- removing residual State unlawful termination entitlements.
- The freedom-of-association provisions are contained in Part XA
of the Act. They provide, amongst other things, that an employee
may not be discriminated against on the basis of whether s/he is or
is not a member of a union. This effectively outlaws union
preference clauses.
- Explanatory Memorandum to the Workplace Relations and Other
Legislation Amendment Bill 1997 , p8.
- ibid, p16
- ibid, p16
- ibid, p2.
- Second Reading Speech to the Workplace Relations and Other
Legislation Amendment Bill 1997 , p3.
Bronwyn Young
25 August 1997
Bills Digest Service
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ISSN 1328-8091
Commonwealth of Australia 1997
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Published by the Department of the Parliamentary Library,
1997.
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Commonwealth of Australia
Last updated: 26 August 1997
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