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Wednesday, 25 September 2002
Page: 4816


Senator MURRAY (11:02 AM) —We have thought for some time that there needs to be a return to a consideration of good faith bargaining in industrial relations law. The original part of the old Industrial Relations Act which dealt with good faith bargaining appeared in sections 255 and 253ZD, and, in presenting their proposed amendment, the Labor Party have drawn on a great deal of tradition and case law with respect to good faith bargaining. We think that good faith is another version of genuine bargaining, and the issue is therefore whether you should take our approach to good faith bargaining or Labor's approach. The key point to note is that Labor seek to amend section 170MK of the Workplace Relations Act, which states what should happen when a bargaining period begins. For those without a copy of the act, it is a short section which says:

The bargaining begins at the end of 7 days after:

(a) the day on which the notice was given; or

(b) if the notice was given to different persons on different days—the later or latest of those days.

What Labor are saying is that the act must then go on to say, `You must conduct your bargaining in good faith.' Our view is that that is likely to happen anyway. You have to be concerned only when the parties arrive at a situation where bargaining breaks down. Either they will have a blue and go out with protected action or they will march off to the commission and say, `Look, we want you to suspend or terminate the bargaining period.' In our view, it is only at the stage when you look at suspending or terminating the bargaining period that the commission should be asking the questions: have you been bargaining in good faith, and have you been genuinely trying to reach an agreement? It is only at that stage that the commission has to get involved in the detail of what has been going on between the parties.

So the different approach we have taken is very much as to where this provision should apply, not whether it should apply. In my revised amendment on revised sheet 2621, we have quite shamelessly adopted much of the language that Labor have used in their amendment (2) on sheet 2595. The reason we have done that is that, although my original intention was to be extremely short and to just say that genuinely trying to reach agreement includes bargaining in good faith, it seems to us that a larger exposition of the issue needs to be attended to. That is why we have done that. We do, however, think that Labor have gone into excessive detail and that their overall recommendation in amendment (2) is a bit expansive, but that is not an endless fault.

The other thing I want to say is that I think this is a most important idea. If you look at the suspension or termination of bargaining period provisions in section 170MW, they are actually very powerful and they already exist. But provisions such as subsection 170MW(3) are quite easy to use. It says that circumstances which would entitle the commission to use the power to suspend or terminate the bargaining period would be, for instance, that the life, or the personal safety or health or the welfare of people are being endangered; or that significant damage to the Australian economy is being caused. That is not a difficult case to make in those circumstances.

Another easy area for the commission to determine is whether their orders have been disregarded and therefore it could suspend or terminate a bargaining period. An area that is not easy to determine is the provisions in section 170MW whereby the commission is supposed to determine whether the parties have genuinely been trying to reach an agreement. It is for that reason that we think that you need to expand on the good faith approach and give the commission a specific outline.

I will recap my arguments—and I will put them again when I am moving my own amendments—in terms of our approach rather than Labor's approach. Labor seeks to establish a good faith or genuine bargaining provision at the outset of bargaining by relating this to section 170MK. We say you should assume that to be happening and things will proceed normally. It is only when they break down that you should be asking, `Was there good faith?' That is why we attach the good faith provision to section 170MW, which is about suspending or terminating a bargaining period, and not to section 170MK, which applies when you are commencing the process. We agree that a good faith provision or a genuine bargaining provision—and we link the two—needs to be in the act; we just think the placement of it is wrong.