Bills Digest No. 90 2002-03
Workplace Relations Amendment (Secret Ballots for
Protected Action) Bill 2002 [No. 2]
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Workplace Relations Amendment
(Secret Ballots for Protected Action) Bill 2002 [No.
2]
Date Introduced:
Reintroduced on 13
November 2002
House: House of Representatives
Portfolio: Employment and Workplace
Relations
Commencement: Most
proposed amendments would commence on the earlier of a day to be
fixed by proclamation or 6 months after Royal Assent.
This Bill is identical to a
Bill introduced in the House of Representatives on 20 February
2002. The previous Bill was negatived at the Third Reading stage in
the Senate on 25 September 2002.
Readers are referred to the previous
Bills
Digest of 22 April 2002.(1)
To require the
conduct of a secret ballot by employees as a prerequisite to gain
authorisation from the Australian Industrial Relations Commission
to take protected industrial action during enterprise bargaining
negotiations. The Government states that this is to ensure that
those participating in the action have decided upon the action and
have not been misled by union officials.
In his Second Reading Speech to the Bill on
reintroduction, the Minister referred to amendments proposed on the
previous Bill by the Australian Democrats.(2) Senator
Murray summarised the effect of his package of 10 amendments as
being to:
gut the Bill so that the government s
proposition would be rejected and to replace it with the one area
in which secret ballots are deficient namely, that unions presently
do not have rules of their own which provide for secret ballots and
which members can access. There are unions that do have those
rules, but a substantial number do not. These amendments are simply
an attempt to make sure that all unions have rules which members
can access on a voluntary basis when they so
choose.(3)
These amendments were rejected by the Senate.
Opposition Senators, whilst generally commending Senator Murray s
contribution, also did not agree to the amendments on the grounds
that it should be left to the workers and their unions to determine
how they make a decision to take a strike and that the amendments
would nevertheless create a system that is unnecessary given
existing checks and balances.(4) The existing checks and
balances included that:
-
- union membership is voluntary
-
- members can ignore a so-called union directive to strike
-
- there is no compulsion to strike following a meeting decision,
and
-
- section 136 of the Workplace Relations Act 1996 allows
for a secret ballot to be ordered by the Commission on the
application of a small proportion of members. (5)
It was also noted that there have been no cases
of alleged coercion by union or non-union members in respect of
industrial action before the Commission. (6)
In his Second Reading Speech, the Minister
stated that
[Democrats] amendments would not have made a
secret ballot a mandatory pre-condition to protected action. They
would not have protected union members from possible coercion or
intimidation in requesting a secret ballot prior to industrial
action. (7)
It should be noted that the Bill has the
potential to be a double dissolution trigger. Pursuant to section
57 of the Australian Constitution, the Prime Minister may advise
the Governor-General to dissolve both Houses of Parliament when the
following requirements are met:
-
- a Bill is passed by the House of Representatives, but the
Senate 'rejects or fails to pass it, or passes it with amendments
to which the House of Representatives will not agree'
-
- a three-month interval elapses from the date of the Senate s
action or inaction, and(8)
-
- the House of Representatives again passes the Bill ('with or
without any amendments which have been made, suggested, or agreed
to by the Senate') and the Senate again 'rejects or fails to pass
it, or passes it with amendments to which the House of
Representatives will not agree'.
In the present case, if the House of
Representatives passes this Bill again and the Senate refuses or
fails to pass (9) the Bill or passes it with amendments
unacceptable to the House, the requirements of the section will
have been satisfied.
Once all necessary preconditions have been met,
the Government may advise the Governor-General to dissolve both
Houses immediately or it may delay its request for a simultaneous
dissolution until any date up to 6 months before the House of
Representatives is due to expire.(10) The latest polling
date for a double dissolution election is Saturday, 16 October
2004.
-
- Steve O Neill, Workplace Relations Amendment (Secret Ballots
for Protected Action) Bill 2002 , Bills Digest No. 116, 2001
02 Department of the Parliamentary Library. Available at:
http://www.aph.gov.au/library/pubs/bd/2001-02/02bd116.htm
- The Hon Tony Abbott MP, Minister for Employment and Workplace
Relations, Second Reading Speech, Workplace Relations Amendment
(Secret Ballots for Protected Action) Bill 2002 [No. 2], House of
Representatives Hansard, Debates, 13 November 2002, p.
8854.
- Senator Murray, Senate Debates, 25 September 2002, p.
4910.
- ibid., Senators Murphy and Sherry, p. 4907.
- ibid.
- ibid.
- The Hon. Tony Abbott, op. cit., 2.
- See: Victoria v Commonwealth (1975) 134 CLR 81.
- If the Senate did not reject the Bill outright but declined to
deal with it within the Government's timeframe, such a delay may or
may not amount to a 'failure to pass' within the meaning of section
57 of the Constitution. What amounts to a 'failure to pass' depends
on the particular circumstances. In Victoria v
Commonwealth the Court stated that the Senate must have a
proper opportunity to consider the Bill, see Barwick CJ at 134 CLR
121-122.
- Rob Lundie, Timetables for the Next Commonwealth Election',
Research Note No.37, Department of the Parliamentary
Library, 2001-02. Available at: http://www.aph.gov.au/library/pubs/rn/2001-02/02rn37.htm.
Sudip Sen
30 January 2003
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to
Senators and Members of the Australian Parliament. While great care
is taken to ensure that the paper is accurate and balanced, the
paper is written using information publicly available at the time
of production. The views expressed are those of the author and
should not be attributed to the Information and Research Services
(IRS). Advice on legislation or legal policy issues contained in
this paper is provided for use in parliamentary debate and for
related parliamentary purposes. This paper is not professional
legal opinion. Readers are reminded that the paper is not an
official parliamentary or Australian government document.
IRS staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
ISSN 1328-8091
© Commonwealth of Australia 2003
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,
2003.
Back to top