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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
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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
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Published by the Department of the Parliamentary Library, 2003.
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