Bills Digest No. 145 2004–05
Workplace Relations Amendment (Better Bargaining)
Bill 2005
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 (Better Bargaining)
Bill 2005
Date
Introduced: 9
March 2005
House: House of
Representatives
Portfolio: Employment and Workplace Relations
Commencement: Schedules 1 to 4 come into force 28 days after the
Act receives Royal Assent
Purpose
The Bill amends the Workplace
Relations Act 1996. It:
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allows the Australian Industrial Relations Commission
(Commission) to more readily suspend a bargaining period where one
or both of the parties to a collective bargaining process are
taking protracted industrial action. [The Commission currently may
suspend a bargaining period under section 170MW. Industrial action
can only be protected from injunctions and damages claims where a
party first seeks a bargaining period from the Commission in
accordance with provisions under Division 8 of Part V1B of the WR
Act. Where a bargaining period is suspended and industrial action
continues, action may be taken to stop it (injunction) and seek the
recovery of any loss (damages)]. The current Bill will not affect
or limit all bargaining forms under the WR Act, for example, the
Bill will not affect employer-initiated lock-outs under Australian
Workplace Agreement (AWA) negotiations
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allows a third party (neither employer nor employee), affected
by industrial action, such as a business client, to apply to the
AIRC to have a bargaining period suspended and thus terminate
protected industrial action
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limits protected industrial action to single employers
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denies access to protected industrial action during the life of
a certified agreement (CA), including over claims for matters not
addressed in the certified agreement and thus nullifies the effects
of the Federal Court s Emwest decision.(1) (The
Emwest decision held that the WR Act s provisions on
certified agreements and protected industrial action did not
prevent a new claim, hence CA, on a subject matter not
addressed in a current CA between the same parties).
The background to this Bill is reviewed in Bills
Digest No. 77 2003 04(2) in respect of the Workplace
Relations Amendment (Better Bargaining) Bill 2003. As is noted
there, certain provisions of the current Bill date back to
provisions of the Workplace Relations Legislation Amendment (More
Jobs, Better Pay) Bill 1999.
The Senate Employment, Workplace Relations and Education
Legislation Committee reviewed the Workplace Relations Amendment
(Better Bargaining) Bill 2003 (with others, see
Senate Report(3)), although this Bill lapsed at the
time Parliament was prorogued prior to the federal election on 9
October 2004. The Committee s majority report concurred with the
views of the Australian Industry Group on the significance of the
Federal Court s Emwest decision:
AiG identified three areas of risk arising from the
Emwest decision, especially for industries in the
manufacturing and construction sectors. First, a union might take
protected action during the life of an agreement over claims which
were not the subject of enterprise bargaining between the parties.
Second, a union might take protected action during the life of an
agreement over new claims which were not pursued during enterprise
bargaining. Third, a dispute might arise in the workplace during
the life of an agreement over an issue which was not dealt with
during the enterprise negotiations and a union might organise
protected industrial action to further its position in that
dispute.(4)
Labor senators on the other hand argued in the same report that
the Bill would increase the bargaining power of employers during
wage negotiations:
Labor senators believe that this is one of the most regressive
workplace relations bills introduced in the parliament under the
banner of market deregulation, since the first wave of industrial
legislation in 1996. Contrary to Government rhetoric about how this
bill will benefit workplaces by ensuring that enterprise bargaining
processes are fair and user friendly, Labor senators maintain the
bill will restrict the right of workers to take industrial action
in the event of a true disagreement with their employers.
(5)
Labor senators also reported the ACTU s view that the Bill would
introduce fetters on the bargaining process:
The effect of this [bill] would be that such agreements would
prevent any industrial action occurring in relation to any issue
throughout the life of an agreement, even where postponement of
bargaining on that issue had been contemplated by the parties prior
to the making of the agreement. In this way the [bill] would act as
an unnecessary fetter on the parties' freedom to bargain and to
negotiate site-specific arrangements for particular types of
projects.(6)
The significant development since the last Bill is the High
Court s Electrolux decision on 2 September
2004(7) which, inter alia, held that bargaining fee
clauses in certified agreements did not pertain to the employment
relationship, and that certified agreements containing such
provisions were void in other words fetters on the matters which
could be agreed to in enterprise bargaining had the chance of being
significantly increased.
In response to the High Court decision, the Government passed
the Workplace Relations Amendment (Agreement Validation) Act
2004 which validated agreements (and protected action engaged
to secure these agreements) to the extent that they contained
provisions pertaining to the employment relation (For a full
account of the High Court decision and the likely effect of the
amending legislation, see Bills
Digest No. 56, 2004-05(8)). In any case, the current
Bill deletes previous provisions dealing with matters pertaining as
a result of the above Act coming into force.
It might also be noted that legislation may not be successful in
curbing targeted industrial behaviour. Victorian building unions
(in particular) have embarked on a go early pattern bargaining
round with about 40 employers (so far), despite the opposition to
the action from the Federal Government and the key employer
association the Master Builders Association of Victoria. The
intention is to lock in 3 year agreements in anticipation of
building industry legislation coming into force after 1 July 2005,
despite current registered agreements not expiring until October
2005. New agreements appear to have been secured without access to
protected industrial action, although the campaign is contrary to
the spirit of this Bill.(9)
Item 1 repeals the following words in subsection
170MN(1): for the purposes of supporting or advancing
claims against the employer in respect of the employment of
employees whose employment is subject to the agreement or (section
170 MX) award, engage in industrial action and
replaces these with: organise or engage in
industrial action affecting the employer (whether or not that
action relates to a matter dealt with in the agreement or
award) .
As is explained in the Bill s Explanatory
Memorandum:
This item proposes to omit words from subsection 170MN(1) and
substitute new words to ensure that industrial action cannot be
taken from the time an agreement or an award made under subsection
170MX(3), comes into operation until the nominal expiry date of the
agreement or award has passed ...In Australian Industry Group v
Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union [2003] FCAFC 183 (Emwest), the Full Federal
Court found that under the current section 170MN, protected
industrial action could be taken, prior to a certified agreement
passing its nominal expiry date, provided the protected action was
in relation to claims not already covered in the agreement.While
proposed new subsection 170MN(1) is designed to remedy the decision
of the Full Federal Court in Emwest, it goes further by prohibiting
all industrial action, irrespective of its purpose, until the
nominal expiry date of an agreement or an award made under
subsection 170MX(3) has passed. For example, as a result of the
proposed amendments to section 170MN, industrial action directed at
a third party rather than the employer would be prohibited during
the life of a certified agreement.(10)
Item 2 proposes a similar amendment as is in
item 1 to subsection 170MN(4) (ie, in respect of
employer-initiated lockouts).
Item 1 inserts new section 170MWB to provide
the Commission with discretion to suspend a bargaining period on
application by a negotiating party. New section
170MWC provides for the suspension of a bargaining period
where industrial action is causing significant harm to a third
party on application by the Minister or a third party.
Proposed paragraph 170MWB(1)(a) ensures that a
suspension of a bargaining period is available only to the parties
negotiating the proposed agreement. Proposed paragraph 170MWB(1)(b)
refers to protected action taking place. Proposed subparagraphs
170MWB(1)(c)(i)-(iv) list factors for the Commission to consider in
deciding whether a suspension is appropriate (eg duration of the
action), although the Commission is not confined to the factors
listed. Proposed subsection 170MWB(2) allows the Commission to
determine the length of the suspension of a bargaining period.
Proposed subsection 170MWB(3) allows the Commission to extend the
suspension of the bargaining period, on the application of a
negotiating party. Proposed subsection 170MWB(4) provides that a
cooling-off period may only be extended once. Proposed subsection
170MWB(5) requires the Commission to give the negotiating parties
the opportunity to be heard when considering cooling-off
applications and any extension applications.
Proposed subsection 170MWC(1) requires the
Commission to consider a number of factors in exercising its
discretion to suspend a bargaining period. These are whether:
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the industrial action is threatening to cause significant harm
to any person (other than a negotiating party) and
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suspending the bargaining period would be appropriate by
reference to the public interest, the principal objects of the WR
Act, and any other relevant matters.
Proposed subsection 170MWC(2) provides numerous
factors for the Commission to refer to when considering whether
significant harm is threatened. Proposed paragraphs
170MWC(2)(a) and (c) refer to the interests of employees
and the extent to which industrial action disrupts or threatens the
viability of a business. Proposed paragraph
170MWC(2)(b) refers to the extent to which a person is
particularly vulnerable to the consequences of the industrial
action. Proposed subsection 170MWC(3) allows the
Commission to determine the appropriate length of a suspension and
proposed subsection 170MWC(4) authorises the
Commission to extend the period of a suspension of the bargaining
period, once only [proposed subsection 170MWC(5)].
Proposed subsection 170MWC(6) allows the
negotiating parties the opportunity to be heard.
Proposed subsection 170MWC(7) informs the
negotiating parties of the availability of mediation and
conciliation services. Proposed subsection
170MWC(8) stipulates that any industrial action taken in
respect of the proposed agreement where a bargaining period has
been suspended is not protected action.
Item 1 inserts new subsection 170ML(3A) which
provides that, for the purposes of subsection 170ML(2) and
subsection 170ML(3), 2 or more related corporations cannot be
treated as a single employer under sub paragraph 170LB(2)(b).
As the Explanatory Memorandum states:
The item is designed to make it clear that protected industrial
action may not be taken by or against 2 or more companies that are
related to the employer and which may be treated as a single
employer for the purposes of subparagraph 170LB(2)(b). This item
does not affect the ability of employers and employees to make and
certify agreements in reliance on the facilitative provision in
subparagraph 170LB(2)(b). This item only affects the scope of the
immunity conferred by section 170ML (protected
action).(11)
Item 1 repeals and replaces
section 170MM. New section 170MM stipulates that protected
industrial action can only be taken by parties to whom the proposed
agreement will apply (ie, a union, employer, or employee that is a
negotiating party in respect of the agreement or a member of a
union negotiating party whose employment will be subject to the
proposed agreement). Industrial action will lose its protected
status if it is organised or engaged in, in concert with any person
or organisation of employees that is not protected in respect of
the specific industrial action being taken.
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Emwest Products Pty Ltd v Automotive, Food, Metals,
Engineering, Printing & Kindred Industries Union [2002]
FCA, 61.
-
Steve O Neill, Bills
Digest No. 77 2003-04 on the Workplace Relations Amendment
(Better Bargaining) Bill 2003, Parliamentary Library, Department of
Parliamentary Services, 2003.
-
Report of the Senate Employment Workplace Relations and
Education Legislation Committee into the Workplace Relations
Amendment (Award Simplification) Bill 2002 Workplace Relations
Amendment (Better Bargaining) Bill 2003, Workplace Relations
Amendment (Choice in Award Coverage) Bill 2004, Workplace Relations
Amendment (Simplifying Agreement-making Bill) 2004, 17 June
2004.
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ibid., p. 7.
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ibid., p. 20.
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ibid., p. 21.
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Electrolux Home Products Pty Ltd v Australian Workers
Union [2004] HCA 40.
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Jacob Varghese, Bills
Digest No. 56, 2004-05 on the Workplace Relations
Amendment (Agreement Validation) Bill 2004, Parliamentary
Library, Department of Parliamentary Services, 2004.
-
Victorian construction employers clear way for pattern deal ,
www.workplace.com.au,
20 April 2005.
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Workplace Relations Amendment (Better Bargaining) Bill 2005,
Explanatory Memorandum, p. 10.
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ibid., p. 14.
Steve O'Neill
29 April 2005
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
© Commonwealth of Australia 2005
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Published by the Parliamentary Library, 2005.
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