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Wednesday, 9 February 2005
Page: 1


Mr ANDREWS (Minister for Employment and Workplace Relations and Minister Assisting the Prime Minister for the Public Service) (9:04 AM) —I move:

That this bill be now read a second time.

The Workplace Relations Amendment (Extended Prohibition of Compulsory Union Fees) Bill 2004 was introduced into the 40th Parliament. The bill lapsed with the dissolution of the parliament. The government is reintroducing this bill in line with the continued commitment to the elimination of bargaining fees in industrial agreements.

This government's commitment to the principle of freedom of association is a cornerstone of a workplace relations framework that is providing for more productive and more prosperous workplaces. The Workplace Relations Act 1996 reflects the principle of freedom of association with broad legislative recognition of the freedom for employees to join, or not to join, an industrial association.

This fundamental freedom is violated by union attempts to impose so-called `bargaining agent fees'. Bargaining agent fee clauses in agreements purport to impose an obligation to pay a fee on an employee who is not a member of a union for bargaining services that they did not request. This means non-union workers have to pay for union negotiations at their workplaces even though their concerns may not be represented at all. Effectively, bargaining agent fees act as backdoor compulsory unionism. They are contrary to the principles of freedom of association and should not be included in any form of industrial instrument.

To halt the re-emergence of compulsory unionism in the federal sphere, the government introduced the Workplace Relations (Prohibition of Compulsory Union Fees) Bill, which was eventually passed through the Senate with support from the Australian Democrats.

The Workplace Relations (Prohibition of Compulsory Union Fees) Act 2003 amended the Workplace Relations Act and prohibited compulsory union fees in federal certified agreements. The amendments expressly provided that a bargaining services fee clause in a federal agreement is void. They also provided that a bargaining services fee clause is an `objectionable provision' for the purposes of the Workplace Relations Act. This means that an agreement should not be certified if it contains a bargaining services fee or, if an agreement has been certified, the bargaining services fee clause may be removed.

The legislative change also addressed conduct designed to compel workers to pay such fees. The compulsory union fees act prohibits the making of false or misleading representations about a person's liability to pay a compulsory fee. This was necessary to prevent unions, or employers, from using other methods to create an impression that employees are legally obliged to pay compulsory union fees.

The Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act 2003 has been successful in addressing bargaining agents fee clauses in federal agreements with bargaining fee provisions removed from 10 certified agreements in January and February of 2004. A further 572 applications made by the Office of the Employment Advocate are currently being considered by the commission. However, as progress is made in the federal jurisdiction, a number of unions have sought to include such clauses in agreements made under state legislation. Recent cases in state jurisdictions have confirmed that bargaining agent fee clauses can be included in state agreements.

As state governments appear unwilling to prohibit compulsory bargaining fees in their jurisdictions, it again falls to the Australian government to show leadership on the issue of protecting freedom of association rights. The Workplace Relations Amendment (Extended Prohibition of Compulsory Union Fees) Bill 2005 will extend the prohibition on the inclusion of bargaining agents' fee clauses in agreements beyond agreements certified under the Workplace Relations Act 1996 to also cover any state employment agreement to which a constitutional corporation is a party.

I now turn to the main provisions of the bill. This bill will amend the freedom of association provisions to provide that a bargaining agent fee clause in a state employment agreement to which a constitutional corporation is a party is void. This will apply to agreements entered into on or after the commencement of the amendments made by this bill. The bill will also extend the prohibition on conduct related to the payment of such fees to the widest constitutional extent possible to protect employees from coercion or misleading conduct about their liability to pay such a fee.

To achieve these aims, the bill will:

amend the definition of bargaining services to include services provided by an industrial association in relation to a state employment agreement, and

provide that a provision of a state employment agreement to which a constitutional corporation is a party is void to the extent that it requires payment of a bargaining services fee.

Australian law recognises that there is an important statutory role for registered organisations and the law confers upon them significant rights and obligations. But the legal standing of unions should not come at the expense of individual employers' and employees' right to freedom of association and protection from coercive or discriminatory conduct.

Unions and employer associations are service providers and should rely on the competitiveness and value of the services they offer to attract members. Trade practices legislation prevents ordinary businesses from providing someone with an unrequested service and then demanding payment for it. The same principle should apply to unions and employer associations.

The government has a strong, proven commitment to freedom of association and the right of employees to choose whether or not they join a union. Bargaining agent fees are compulsory unionism by stealth and should not be included in any form of industrial instrument. The reintroduction of this bill demonstrates the Australian government's ongoing commitment to upholding employees' freedom of association rights and its willingness to act to protect those rights. I commend the bill to the House and present the explanatory memorandum.

Debate (on motion by Mr McClelland) adjourned.