Australian Democrats' Report
Relations Amendment (Prohibition of Compulsory Union Fees) Bill 2001
The Australian Democrats support the rights of
employees and employers to join or not to join registered organisations. We
support the prohibition on duress. This bill addresses the possibility of
non-members of unions being forced to pay bargaining fees (fee-for-service as
it is also known), which then converts into a kind of compulsory unionism. The
Democrats believe that fee-for-service issues must be separated out from issues
of freedom of association and a prohibition on duress. Both fee-for-service
and freedom of association are principles we support. The question then
revolves around enabling legislation and whether this bill is the appropriate
vehicle for the resolution of these issues.
We note the 25 submissions received on this bill
and the discussion this matter has received (and continues to receive) in the
Australian Industrial Relations Commission (AIRC) and in public discussion more
broadly. This bill was introduced into the House of Representatives on 23 May
2001 and has been the subject of some consultation to date. In essence, the
bill would amend the Workplace Relations Act 1996 (WRA) to prevent unions and
employers from demanding fees from non-members for bargaining services.
The Government has characterised such fees as a
form of compulsory unionism and this comprises their main argument for these
It is hard to see how provisions for bargaining
fees should be against the spirit of the WRA and its object of facilitating
agreement making. Agreement making is desirable, and if fee-for-service
contributes to that, it is to the good. There is also the issue of
‘free-riders’, by employers on the backs of employer organisations, and
employees on the backs of unions.
We consider it fair that those who benefit from
agreement making should make a contribution towards its costs, whether
employers or employees. This strikes us as a fair principle.
The bargaining fee may represent only a small
portion of the real cost of completing an agreement, for instance where that
agreement involves union members’ foregone earnings through taking protected
We see a clear distinction between the notion of
compulsory unionism (which we oppose) and a contribution to the costs of
bargaining, where the person paying is a direct beneficiary of that bargaining.
Such payees are not joining a union, but clearly the fee should not be a
substitute for a normal union fee. They are paying for a service. They are not
contributing to other activities of the union, or electing to play any role in
the activities, policies or other conduct of the organisation, or getting any
of the other benefits of a union. They are not union members.
Coercive attempts to force union membership are
clearly illegal under the WRA and should remain so.
To allow a fee-for-service is not at all unusual
under industrial relations and bargaining regimes in other countries. In some
countries it is imposed. In the United States of America, those who are part
of workplaces where a majority vote to join a union, and who then benefit from
rounds of bargaining to reach workplace agreements, must generally pay a fee to
the union that wins the certification ballot and negotiates the agreement.
Allowing workplaces to take a vote on agreements which include provision to
charge such a fee, and then where the majority vote in its support, permit its
collection, is not out of step with practice in other places. To repeat, it seems
fair and reasonable that those who benefit also pay.
Of course some unions will not go down this
path. They will reject a source of funds to unions that are based on
agreement-based rights to charge and collect a bargaining fee. Such a practice
does not sit easily with unions with a monopolist compulsory culture, or with
those who support the ‘organising approach’ that has attracted much discussion
in Australian unions since the mid-1990s. This approach places priority upon
building unions through active membership, not providing services to
non-members. There is lively debate within the union movement on these
Requiring fees to be agreed to in advance by
non-members who are advantaged by bargaining (a practice which the Government
does not oppose) will not necessarily overcome the free-rider problem, as many
free-riders will still see it in their clear self interest to refuse to give
their consent in advance. This problem needs to be further explored.
The Democrats will consider the bill further, if
it is resurrected following the forthcoming Federal election. We remain open
to the possibility that bargaining fees or fee-for-service provisions become
part of workplace law, within the principles of freedom of association.
Senator Andrew Murray
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