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Monday, 18 November 1996
Page: 5483


Senator MARGETTS(6.18 p.m.) —I move:

(45)   Schedule 9, item 19, page 84 (after line 24), after section 170LW, insert:

170LWA Rights of organisations of employees to intervene on certification of agreement.

On an application to the Commission to certify, vary, extend, terminate or otherwise deal with a certified agreement between an employer and employees, an organisation of employees is entitled to be heard if the organisation is bound by an award that binds that employer in relation to work performed at the enterprise or is entitled to represent the industrial interests of any of the employees covered by the agreement.

170LWB Possible disadvantage may be rectified by undertakings

(1)   Where the Commission forms the view that the effect of an agreement made under this Division would be to disadvantage employees who, for any reason, may not have had their interests sufficiently considered in the making of the agreement, the Commission may make an award to rectify such disadvantage.

(2)   For the purposes of subsection (1), and without limiting its generality, an employee may not have had his or her interests sufficiently considered because they fall into one or more of the following classes of employee:

   (a)   women;

   (b)   persons whose first language is not English;

   (c)   young persons;

   (d)   part-time or casual employees;

   (e)   persons with disabilities.

(3)   If under this section, the Commission forms the view that the effect of an agreement made under this Act is to disadvantage employees, the Commission may accept an undertaking from one or more persons who made the agreement in relation to the operation of the agreement and, if satisfied that the undertaking has the effect of removing the disadvantage identified by the Commission, may refuse to make an order under subsection (1).

(4)   The Commission's powers and jurisdiction are unrestrained by any other provision of this Act when acting pursuant to this section.

This amendment inserts two new clauses, clause 170LWA and clause 170LWB after clause 170LW. Clause 170LWA seeks substantively to maintain the right of unions to intervene at the commission approval stage when they are bound by an award or have coverage of the employees concerned. The role of unions in the certification process is a critical check and balance in the system of approval which ensures that legislative safeguards are being substantially delivered. The average person does not walk around with a copy of the industrial relations legislation in their pocket or even have it close handy at the workplace.

Clause 170LWB ensures that the Australian Industrial Relations Commission has a broad capacity to accept undertakings to rectify disadvantage in circumstances where such action is warranted. As the amendment states, examples of such disadvantaged groups include women, persons whose first language is not English, young workers, part-time or casual employees and persons with disabilities. This is an important backstop provision and highlights the importance that the Australian Industrial Relations Commission can play in industrial relations issues.

Amendment negatived.

Amendments (by Senator Campbell)—by leave—agreed to:

(90)   Schedule 9, item 19, page 84 (line 28), omit "subsection (2)", substitute "this section".

(91)   Schedule 9, item 19, page 84 (after line 29), after subsection (1), insert:

(1A)   The agreement ceases to be in operation if:

   (a)   its nominal expiry date has passed; and

   (b)   it is replaced by another certified agreement.