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Wednesday, 4 December 2002
Page: 9537


Mr ABBOTT (Minister for Employment and Workplace Relations and Minister Assisting the Prime Minister for the Public Service) (9:40 AM) —I move:

That this bill be now read a second time.

Freedom of association is a cornerstone of the government's vision for more productive and more prosperous workplaces. On coming to office, the government amended the Workplace Relations Act 1996 better to reflect this principle, with broad legislative recognition of the freedom to join or not to join an industrial association.

This fundamental freedom is violated by recent union attempts to impose so-called `bargaining agent's fees'. These require non-union members to pay for union negotiations at their workplace, even though these negotiations may take no account of their concerns. In many cases the fee demanded has been set at $500 per year, well above the level of annual union dues. This suggests that many compulsory fee demands are being made with premeditated coercive intent.

Clauses purporting to require payment of compulsory union fees by nonunionists have already been included in hundreds of federal certified agreements.

Compulsory fees for an unrequested service do not constitute `user pays'. User pays involves an exchange that is freely entered into by willing and properly informed parties. The government believes that industrial associations should be subject to the same standards as ordinary businesses, which are prevented by fair trading legislation from providing unrequested services and then demanding payment for those services.

The content and intent of this bill should be familiar. It is the same as the bill that was laid aside on 18 September 2002 after the House of Representatives rejected Senate amendments that would have undermined the intent of the bill to protect individual employees from the imposition of compulsory union fees.

The Senate amendments would have allowed a majority vote to impose a compulsory bargaining services fee on all employees, irrespective of whether the individual employees affected had sought the bargaining services. The amendments removed from the bill important protections for employees who choose not to pay a fee, as well as the capacity to have compulsory bargaining service fee clauses removed from agreements.

The government is reintroducing this bill to honour the commitment it made before the 2001 election to ban compulsory union levies.

The bill will amend the certified agreement and freedom of association provisions in the Workplace Relations Act 1996. The amendments address clauses in certified agreements that purport to require payment of bargaining services fees. They also address conduct designed to compel people to pay such fees.

In late 2001, a full bench of the Australian Industrial Relations Commission found that bargaining fee clauses in certified agreements do not contradict the strict letter of the freedom of association provisions of the Workplace Relations Act 1996, despite their acknowledged coercive intent. This has exhausted the legal avenues to have clauses removed from certified agreements.

There has been ongoing uncertainty in relation to the legal status of bargaining fee clauses, including whether such clauses can be included in agreements. In August 2002, the commission held that it was unable to certify nine agreements containing a bargaining fee clause because that clause did not pertain to the employment relationship; that decision is under appeal.

The Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Bill 2002 [No. 2] addresses this uncertainty. The bill provides that bargaining fee clauses in certified agreements are void, and will give the commission the power to remove such clauses on application by the Employment Advocate, or a party to the agreement. The bill will prevent the commission certifying an agreement containing a clause requiring the payment of a fee for bargaining services.

To ensure that it is clear that bargaining fee clauses in certified agreements do not provide a basis on which unions can legally compel non-members to pay such fees and to ensure that there are appropriate protections for individual employees who choose not to pay a bargaining fee the bill will amend the Workplace Relations Act 1996 to:

prohibit employers and others from engaging in discriminatory conduct against people who refuse to pay a bargaining fee;

prohibit an industrial association from encouraging or inciting others to take discriminatory action against people who refuse to pay a bargaining fee;

prohibit an industrial association from taking, or threatening to take, action with intent to coerce people to pay a bargaining fee; and

prohibit an industrial association from demanding a bargaining fee.

There is also a need to prevent unions and employers from using other methods to create an impression that employees are legally obliged to pay these compulsory union fees. Hence the bill will prohibit the making of false or misleading representations about a person's liability to pay a compulsory union fee.

However, the bill will not prevent people making voluntary contributions, provided there is no coercion or misrepresentative conduct. The bill will prevent demands for coercive, non-consensual fees that are contrary to rights to freedom of association.

Bargaining fees are not a legitimate way for trade unions to arrest the dramatic and sustained fall in their membership.

Australian laws recognise an important statutory role for registered organisations, and confer upon them significant rights and obligations. But that legal standing cannot be at the expense of the right of individual employers and employees to freedom of association and to protection from coercive or discriminatory conduct.

I commend this bill to the House and present a copy of the explanatory memorandum.

Debate (on motion by Dr Lawrence) adjourned.