Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Monday, 24 March 2003
Page: 9985


Senator MURRAY (4:39 PM) —I have circulated to the chamber sheet 2877 and there is a total of 10 amendments. I should in the normal course of events break up these amendments but, since this debate has been previously held and these amendments are substantially the same as before—and I suspect I know the attitude of the two major parties on this—I am content to put them all at once unless there is direction from the chair or suggestions from either side that they do not want to do that.


The CHAIRMAN —I understand that you will be able to move amendments (1), (4), (6) and (8) together by leave, but amendments (2), (3), (5), (7), (9) and (10) oppose other items. Do you want to seek leave to move together (1), (4), (6) and (8) on sheet 2877?


Senator MURRAY —That was to be my counterproposition. I was just trying to shortcut a little. But I am quite happy for that. I seek leave to move amendments (1), (4), (6) and (8) together.

Leave granted.


Senator MURRAY —I move amendments (1), (4), (6) and (8) on sheet 2877 together:

(1) Schedule 1, item 2, page 3 (lines 27 to 29), omit the item, substitute:

2 Subsection 134(5) (paragraphs (d) and (e) of the definition of prescribed premises)

Omit “or 136”, substitute “, 136 or Division 8A of Part VIB”.

(4) Schedule 1, item 20, page 7 (line 33), omit “170NBDC”, insert “170NBCD”.

(6) Schedule 1, item 25, page 10 (line 33) to page 36 (line 18), omit the item, substitute:

25 After Division 8 of Part VIB

Insert:

Division 8A—Secret ballots on proposed protection action

Subdivision A—General

170NBA Object of Division and overview of Division

Object

(1) The object of this Division is to establish a transparent process which allows union members directly concerned to choose, by means of a fair and democratic secret ballot, whether to authorise industrial action supporting or advancing claims by unions.

Overview of Division

(2) Under Division 8, industrial action by union members is not protected action unless it has been authorised by:

(a) the relevant union; or

(b) a secret ballot of relevant union members; or

(c) the Commission.

(3) A secret ballot is required if it has been:

(a) requested by a relevant union member; or

(b) ordered by the Commission.

(4) A secret ballot is conducted according to:

(a) the rules of the relevant union; or

(b) if there are no union rules, the model rules established by the Commission;

and in any case rules must be adopted within nine months of the commencement of this provision.

(5) The rule that industrial action by employees is not protected action unless it has been authorised does not apply to action in response to an employer lockout (see section 170MQ).

170NBAA Definitions

In this Division:

ballot ordermeans an order made under section 170NBBF requiring a protected action ballot to be held.

bargaining period has the meaning given in subsection 170MI(1).

negotiating partyhas the meaning given in subsection 170MI(3).

party, in relation to an application for a ballot order, means either of the following:

(a) the applicant;

(b) the employer of the relevant union members.

proposed agreement, in respect of a bargaining period, means the proposed agreement in respect of whose negotiation the bargaining period has been initiated.

protected action ballotmeans a secret ballot under this Division.

relevant union, in relation to proposed industrial action against an employer in respect of a proposed agreement, means any union which is a negotiating party to the agreement.

relevant union member, in relation to proposed industrial action against an employer in respect of a proposed agreement, means any member of the relevant union who is employed by the employer and whose employment will be subject to the agreement but does not include a union member who is a party to an AWA whose nominal expiry date has not passed.

Subdivision B—Authorising protected action

170NBB How is protected action authorised

Industrial action by employees is not protected action unless it has been authorised by:

(a) the relevant union; or

(b) a secret ballot of relevant union members; or

(c) the Commission.

170NBBA How and when can a union authorise protected action

(1) A relevant union may, subject to subsection (3), make a declaration to authorise industrial action by relevant union members as protected action in accordance with its rules provided that:

(a) if there is only one existing agreement—the action commences during the 30-day period beginning on whichever is the later of the following:

(i) the date of the declaration;

(ii) the nominal expiry date of the existing agreement; or

(b) if there are 2 or more existing agreements—the action commences during the 30-day period beginning on whichever is the later of the following:

(i) the date of the declaration;

(ii) whichever is the last occurring of the nominal expiry dates of those existing agreements; or

(c) if there is no existing agreement— the action commences during the 30-day period beginning on the date of the declaration.

Note: Industrial action must be authorised under this Division if it is to be protected action under Division 8—see section 170MQ.

(2) However, the action is not authorised to the extent that it occurs after the end of the bargaining period.

Note: If another bargaining period is initiated later, and industrial action is proposed for that later period, it can only be authorised if a fresh application for a ballot order is granted, and the other steps required by this Division completed, during that later period.

(3) If a relevant union does not have in place rules that establish how protected action may be authorised, then protected action requested by a relevant union member may only be authorised according to a secret ballot conducted under the Commission's model rules according to section 170NBCC.

(4) A relevant union may not authorise protected action under subsection (1) if a secret ballot is required under section 170NBBB.

170NBBB When is a secret ballot required to authorise protected action

A secret ballot is required, and no protected action will be otherwise authorised, if it has been:

(a) requested by at least two union members as provided by the rules; or

(b) ordered by the Commission.

170NBBC Secret ballot may be requested by relevant union member

A relevant union member may, during a bargaining period for the negotiation of a proposed agreement under Division 2 or 3 of this Part, request the relevant union to which the member belongs to hold a protected action ballot to determine whether proposed industrial action has the support of the majority of relevant union members.

170NBBD Secret ballot may be ordered by Commission

(1) A party referred to in subsection (2) may, during a bargaining period for the negotiation of a proposed agreement under Division 2 or 3 of this Part, apply to the Commission for an order for a ballot to be held to determine whether proposed industrial action has the support of a majority of relevant union members.

Note: For the duration of a bargaining period, see sections 170MK (when it begins) and 170MV (when it ends).

(2) The following parties may apply:

(a) the relevant union to which the relevant union members mentioned in subsection (1) belong;

(b) any employer or organisation of employers who is a negotiating party to the proposed agreement.

170NBBE Commission must be satisfied of various matters

The Commission may grant an application for a ballot order, but must not grant the application unless it is satisfied that:

(a) any court, judicial inquiry or Royal Commission findings justify such an order; or

(b) any evidence or findings of coercion or intimidation of members proposing to take protected action makes such an order appropriate.

170NBBF Grant of application—order for ballot to be held

If the Commission grants the application, the Commission must order a protected action ballot to be held by the relevant union.

Note: The Commission may make an order requiring a secret ballot to be held for one or more bargaining periods.

Subdivision C—Conduct and results of protected action ballot

170NBC Ballot must be secret

A protected action ballot must be a secret ballot.

170NBCA How is a secret ballot to be conducted

(1) Subject to subsection (2), a secret ballot is conducted according to:

(a) the rules of the relevant union; or

(b) if there are no union rules, the model rules established by the Commission.

(2) Before conducting a secret ballot a union must give its relevant union members:

(a) reasonable notice that the secret ballot will be held; and

(b) information as to the matters which are to be dealt with in the proposed agreement and the general nature of the proposed industrial action.

170NBCB Union rules for conduct of secret ballot

(1) A secret ballot is to be conducted according to the rules of the relevant union.

(2) If the relevant union does not have rules in place in accordance with subsection (1) for the conduct of a secret ballot to authorise protected action, then the secret ballot is to be conducted in accordance with the model rules established by the Commission under section 170NBCC.

(3) A union must adopt its own rules or the Commission's model rules within nine months of the commencement of this Division.

170NBCC Commission model rules for conduct of secret ballot

The Commission shall issue model rules for the conduct of secret ballots.

170NBCD Declaration of ballot results

As soon as practicable after the end of the voting, the union must, in writing:

(a) make a declaration of the result of the ballot; and

(b) inform the relevant union members, negotiating parties and the Industrial Registrar of the result.

170NBCE Effect of ballot

(1) Industrial action is authorised under this Division if more than 50% of the votes validly cast were votes approving the action and:

(a) if there is only one existing agreement—the action commences during the 30-day period beginning on whichever is the later of the following:

(i) the date of the declaration of the results of the ballot;

(ii) the nominal expiry date of the existing agreement; or

(b) if there are 2 or more existing agreements—the action commences during the 30-day period beginning on whichever is the later of the following:

(i) the date of the declaration of the results of the ballot;

(ii) whichever is the last occurring of the nominal expiry dates of those existing agreements; or

(c) if there is no existing agreement— the action commences during the 30-day period beginning on the date of the declaration of the results of the ballot.

Note: Industrial action must be authorised under this Division if it is to be protected action under Division 8—see section 170MQ.

(2) However, the action is not authorised to the extent that it occurs after the end of the bargaining period.

Note: If another bargaining period is initiated later, and industrial action is proposed for that later period, it can only be authorised if a fresh application for a ballot order is granted, and the other steps required by this Division completed, during that later period.

(3) The Commission may, by order, extend the 30-day period mentioned in paragraph (1)(a), (b) or (c) by up to 30 days if the employer and the applicant for the ballot order jointly apply to the Commission for the period to be extended.

(4) The Commission must not make an order under subsection (3) extending the 30-day period if that period has been extended previously.

(5) If industrial action commences during the 30-day period, stops and re-starts within a reasonable period after the 30-day period, no new authorisation is required if the industrial action is substantially the same.

(6) Industrial action is taken, for the purposes of this Division, to be duly authorised even though a technical breach has occurred in authorising the industrial action, so long as the person or persons who committed the breach acted in good faith.

Subdivision D—Funding of ballots

170NBD Liability for cost of ballot

Union member initiated ballot

(1) The relevant union is the party liable for the cost of holding the protected action ballot, if a relevant union member initiated that ballot under section 170NBBC.

Commission ordered ballot

(2) If the Commission ordered the ballot to be conducted, the applicant for a ballot order is the party liable for the cost of holding the ballot.

(3) Subsections (1) and (2) have effect subject to subsection 170NBDA(3).

170NBDA Commonwealth has partial liability for cost of ballot

(1) If:

(a) the liable party notifies the Industrial Registrar of the cost incurred by the relevant union in relation to the holding of the ballot; and

(b) does so within a reasonable time after the completion of the ballot;

the Industrial Registrar must determine how much (if any) of that cost was reasonably and genuinely incurred by the relevant union in holding the ballot. The amount determined by the Industrial Registrar is the reasonable ballot cost.

(2) The Commonwealth is liable to pay to the liable party 80% of the reasonable ballot cost.

(3) If the Commonwealth becomes liable to pay to the liable party 80% of the reasonable ballot cost, the liable party for the ballot order is:

(a) to the extent of the Commonwealth's liability, discharged from liability under section 170NBD for the cost of holding the ballot; and

(b) liable to pay 20% of the reasonable ballot cost 30 days after the Industrial Registrar's determination.

(4) The regulations may prescribe matters to be taken into account by the Industrial Registrar in determining whether costs are reasonable and genuinely incurred.

(8) Schedule 1, item 30, page 37 (line 15) to page 38 (line 12), omit the item, substitute:

30 After section 307

Insert:

307A False statement in application for protected action ballot order

(1) A person must not, in an application for a ballot order under Division 8A of Part VIB:

(a) make a statement; and

(b) in making the statement, be reckless as to whether the statement is false or misleading in a material particular.

Penalty: 10 penalty units.

(2) For the purposes of an offence against subsection (1), strict liability applies to the physical element, that the application is made under Division 8A of Part VIB.

Note: For strict liability, see section 6.1 of Criminal Code.

307B False statement in joint application for protected action ballot order

(1) A person must not, in an application for a ballot order under Division 8A of Part VIB:

(a) join with other persons in making a statement; and

(b) in making the statement, be reckless as to whether the statement is false or misleading in a material particular.

Penalty: 10 penalty units.

(2) For the purposes of an offence against subsection (1), strict liability applies to the physical element, that the application is made under Division 8A of Part VIB.

Note: For strict liability, see section 6.1 of Criminal Code.

In moving these amendments, I think it necessary to recap some of the assertions and the elements that surround the area of secret ballots. It is absolutely true that the previous government, the present government, the present act and all political parties and independents in this place support the principle of secret ballots, both in the normal areas that we understand, such as parliamentary elections, and in the particular circumstances of workplace relations. It is for that reason that secret ballot provisions already exist in the law.

The coalition is seeking not to introduce new principle or introduce secret ballot provisions for the first time but in fact to add to the processes. What they are intending to do is to move from a situation where mandating secret ballots is at the discretion of the Industrial Relations Commission, which it is at present, to a situation where having secret ballots is mandated. The intention of mandating it in all cases has at its heart a supposition—which the department has said openly and on the record is not so—that intimidation is rife in the area of protected industrial action. Why do I emphasise that it is in the area of protected industrial action? It is because, simply put, there may be practices in unprotected industrial action, where people operate in some heat and in a less regulated manner, where intimidation may occur. I do not know if that occurs or not.

Unfortunately, statistics have not been provided, nor are they available from either the department or the Australian Bureau of Statistics, as to the number of days lost as a result of unprotected industrial action. Protected industrial action, as we know, is now down to the record level the coalition rightly crow about. I have heard them crow many times in this chamber, as I am sure other members of the chamber have, about the lowest level of industrial disputation in Australia's history, which, as at January 2002, for the 12 months was 49 days lost per 1,000 employees.

To return to the law as it was enacted, sections 135 and 136, which occupy nearly four pages of the act at present, clearly indicate the circumstances in which the commission may order a secret ballot. I will not bore the chamber by quoting the entire act but, for instance, section 135 (1) says:

Where:

(a) an organisation is concerned in an industrial dispute with which the Commission or another tribunal acting under a law of the Commonwealth is empowered to deal (whether or not proceedings in relation to the dispute are before the Commission or other tribunal); and

(b) the Commission considers that the prevention or settlement of the industrial dispute might be helped by finding out the attitudes of the members, or the members of a section or class of the members, of the organisation or a branch of the organisation in relation to a matter;

the Commission may order that a vote of the members be taken by secret ballot (with or without provision for absent voting), in accordance with directions given by the Commission, for the purpose of finding out their attitudes to the matter.

That is unequivocal. The commission has the ability to intervene. Also, it is stated under section 136 (1), relating to application by members of organisations for secret ballots:

Where:

(a) the members, or the members of a section or class of the members, of an organisation or branch of an organisation are directed or requested by the organisation or branch to engage in industrial action; and

(b) the members directed or requested are, or include, members (in this section called the relevant affected members) who are employed by a particular employer at a particular place of work;

application may be made to the Commission, by at least the prescribed number of relevant affected members, for an order under subsection (2).

So members of affected industrial organisations may approach the commission for secret ballots. There is no impediment in the law and there is every support in the law for that to occur. The question then arises: since the law was enacted—commencing on 1 January 1997—have there been circumstances in which secret ballots have been ordered? The answer is yes. With regard to protected action, my records indicate that there have been 12. How many enterprise bargaining agreements were conducted under protected action over that period? There were over 30,000. It really is not a very high demand. There is a reason for that. The entire reason that the Labor Party introduced the concept of enterprise bargaining and the coalition refined it, in both instances supported by the Democrats, is that as far as possible you want to leave the bargaining agents—the employer and the employees— to get on with it and negotiate their outcomes in their own terms and in their own manner with the least amount of interference from the regulator or anybody else as possible. When you move to a situation where you start mandating secret ballots, you actually clog up the system. You make it more difficult to operate.

That is the reason we have been concerned that this is an antimarket device. It is ineffective in terms of the way in which the labour market—if I can use an economist's term—will operate in the resolution of wages and conditions. The consequence is that we have looked at this and asked if there are any instances where members of a union, for instance, may need more protection as a result of intimidation. We suspect there are cases. We suspect there are a minority of people in some industries who behave improperly. Given the statistical nature of malfeasance in our community, it would be highly unlikely for there not to be a percentage of people who need attention. However, if it is a case that is in a particular industry or practice, then you need to home in on that and focus your bill on those areas. This bill does not; it seeks to apply a general rule across all of the provisions. The Australian Democrats found a hole by a remarkable discovery that most union rules do not have provisions for secret ballot processes. When asked, the unions at the hearings we attended said on the record that they had absolutely no objection to a call for a secret ballot—run a cardboard box up to the front, drop in your pieces of paper and have them counted by scrutineers. There was nothing of that sort; there was no problem. The difficulty I had was that they do not have any rules that are laid out for how that should occur. I think that is a missing part of the act.

I have taken some time and trouble to develop and devise a set of amendments that would deal with this area. We have looked at making voluntary secret ballots for protective action available to union members under union rules. We are suggesting that voluntary secret ballots should only be initiated by union members. This secret ballots proposal represents a new approach that would achieve internal union democracy and decision making rather than impose additional external hurdles to accessing protected industrial action. Under this proposal, union rules would be able to provide for a secret ballot of eligible members as part of the process for authorising protected industrial action when required, and when required by members. The members would only activate the secret ballot on request; it would not be mandated. By the way, it is not as if we have put up a great hurdle for this to happen; we have suggested that two members may be sufficient to activate the union rules approach.

Aside from the very minimal requirements necessary to ensure fairness and accountability in the ballot, unions would be free to determine the form of secret ballot that best suited their circumstances. There would be no prescription in relation to the method of secret ballot—attendance or postal—or calling for the ballot or the ballot question. In other words, it is up to the unions to devise what best suits them. The result is a simple requirement that will strengthen internal union decision making without mandating, limiting or delaying access to protected industrial action. On request, protected industrial action could be endorsed by secret ballot of members eligible to participate in the industrial action conducted in accordance with the rules of the union. The minimum procedural requirements for a secret ballot to authorise protective action would be that the union must advise members before the ballot as to the matters that are proposed to be dealt with, and the general nature of the proposed industrial action—for example, whether there are to be strikes, bans or both—and notify members and the employer that a ballot has been conducted, along with the result of the ballot.

These simple procedural requirements are intended to ensure that members have a reasonable opportunity to participate in the vote, to understand the industrial action they are being asked to endorse and to be informed of the result of the ballot. These requirements should be able to be easily integrated into unions' existing practices for approving industrial action. For example, I understand that most unions currently provide some notice to members of any meeting that may consider industrial action. There would be no prescribed quorum, although unions could choose to set a quorum through their rules. Each secret ballot should be able to authorise protected industrial action for a reasonable period. To ensure certainty in relation to access to protected action, a ballot would be valid in spite of any technical breaches in processes that were done in good faith. This measure implements the policy achieved by privative clauses—a clause which prevents review in the current bill—which limit challenges in the courts to the ballot process and ballot result on technical grounds. Members would, of course, have the right to challenge any material breach of the rules, but provided the breach was technical and was done in good faith it would not jeopardise the protected status of the industrial action.

Unions would be required to modify their rules to provide for secret ballots to authorise industrial action within nine months of the bill being passed. To assist in this regard model rules would be developed. That is an important point: model rules would be developed in the absence of rules by the unions—in other words, by an industrial relations commission but with submissions that unions in whole or in part could adopt. Any union that failed to introduce the required rules in the prescribed period would be obliged to adopt the industrial relations commission model rules.

As I said in my contribution to the second reading debate, it is my belief that, once again, the principal motive for this bill is to secure a double dissolution trigger rather than to attend to a legitimate negotiation for an outcome that would advance the cause of secret ballots without throwing sand into the engine of industrial democracy. I would urge the government, if they decide to proceed on their political course, to come back later to my amendments and to perhaps consider them in another bill and advance these matters as I have outlined.