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Thursday, 31 August 2000
Page: 17037


Senator IAN CAMPBELL (Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts) (9:44 AM) —I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

WORKPLACE RELATIONS AMENDMENT (SECRET BALLOTS FOR PROTECTED ACTION) BILL 2000

The Coalition's 1998 workplace relations election policy More Jobs, Better Pay contained commitments to further legislative reform in our second term of office.

These commitments were reflected in four pieces of legislation already introduced by the Government since October 1998, dealing with small business unfair dismissal exemptions, superannuation, youth wages and multiple reform issues in the Workplace Relations Legislation Amendment (More Jobs, Better Pay Bill) 1999.

That bill was passed by the House of Representatives on 29 September 1999 but subsequently blocked by the combined opposition of the Labor Party and the Australian Democrats in the Senate.

Since opposing the More Jobs Better Pay Bill 1999 last November, the Democrats have publicly indicated that they prefer to deal with the contents of that bill on an issue by issue basis, not as an omnibus piece of legislation.

In a speech to the ACT Industrial Relations Society on 6 April 2000 Democrats spokesman Senator Murray said, and I quote, “In my view only technical bills should be general and broad ranging. Policy bills should be specific. It is far better for a reformist government to deal with one issue at a time on a specific and limited basis.”

And again, in the course of the inquiry by the Senate Employment, Workplace Relations, Small Business and Education Legislation Committee into the bill, the Senator said, “It seems to me the Act can be conveniently broken up into major sectors ... I find these kind of omnibus bills result in a lot of negativity and it is very difficult to progress them.”

Taking these sentiments into account, the Government has sought to accommodate the preferences of the Australian Democrats by proceeding, other than on technical issues, with an issue by issue consideration of policy matters arising from the More Jobs Better Pay Bill 1999.

The first of these issue by issue bills was a bill dealing with pattern bargaining and related matters which passed the House on 1 June 2000, but which is now also being opposed in the Senate by the Labor Party and, so far, by the Democrats.

The Government is now in a position to introduce further single issue bills drawn from the More Jobs Better Pay Bill 1999.

This bill deals with secret ballots prior to the taking of protected industrial action.

Secret ballots provide a fair, effective and simple process for determining whether a group of employees in an enterprise want to take industrial action.

Although Australia has long had provisions for secret ballots at the federal level, they have not been compulsory as a precondition to industrial action. In the past this was not such an issue as prior to 1994 virtually all industrial action was unlawful.

The Government believes it is appropriate, in view of the protections against civil liability for industrial action taken in pursuit of enterprise agreements provided by the Workplace Relations Act 1996, that secret ballots become a precondition to accessing protected action. Extension of the existing scheme of secret ballots in this way would enhance freedom of choice, minimise unnecessary industrial action and strengthen the accountability and responsiveness of unions to their members.

Evidence from the UK where secret ballot provisions have been operating since 1984 - and were retained in the Blair Government's Employment Relations Act 1999 - shows that the introduction of legislative requirements for secret balloting has:

provided union members with a direct say in the authorisation of industrial action;

encouraged greater consultation by unions of their members;

in conjunction with other legislative reforms, helped to significantly reduce strike activity; and

had the support of UK trade union leaders.

The UK experience shows that secret ballots are about improving the way unions consult with their members and so reducing the likelihood of unnecessary and illegitimate industrial action.

This bill will enhance the opportunities for democratic participation by employees in making decisions about taking industrial action. A more democratic process will enable the employees who are directly concerned to decide for themselves whether industrial action is warranted. This will ensure that protected industrial action is not used as a substitute for genuine discussions during a bargaining period.

Support for secret ballots has been a position advocated by the Australian Democrats.

In the Democrats Senate Committee Report last November, Senator Murray indicated, and I quote, “As a principle the Australian Democrats are generally strongly supportive of direct democracy. Democrats are also strongly supportive of the democratic protections afforded by secret balloting processes.”

And following the rejection of the More Jobs Better Pay Bill 1999, the Leader of the Democrats has indicated that the Democrat concern appeared to be with matters of detail, not matters of principle. In speaking on Sydney radio about mandatory secret ballots, Senator Lees said on 29th November 1999, and I quote, “If we could go back to the government and talk to them as you're talking to us, you know in what I would describe as a reasonable and logical fashion, then the answer comes out as yes, there should be that provision.”

In introducing this bill I am clearly indicating that the Government is determined to proceed on an issue in respect of which there appears to be Democrat support. We invite the Democrats to make us keep the promise we made to the Australian people in October 1998 to introduce secret ballot requirements. The Government is prepared to consider amendments to refine the detail of the secret ballots regime proposed by the bill, if it is the detail that is the barrier to the bill's passage through the Parliament.

Our intention is simple. We intend to implement the legislative amendments that reflect the policy objective on secret ballots in our second term workplace relations policy.

The provisions contained in this bill will introduce a requirement for a secret ballot to precede industrial action organised by employees or a union. If this precondition is not met the industrial action will not be protected. The precondition will not, however, apply following the suspension of a bargaining period unless the protected action proposed varies from that which was authorised by the ballot.

Either a union or an employee who is a negotiating party will be able to apply to the Commission for a protected action ballot to be held. If an application for a ballot is made by a union, only union members whose employment would be covered by the proposed agreement would be entitled to vote in the ballot. If the application is made by employees who are seeking a non-union agreement, all employees whose employment would be covered by the proposed agreement would be entitled to vote in a ballot.

Where the application is made by an employee, or several employees acting jointly, there must be evidence that the ballot application is supported by a prescribed number of employees at the workplace. Where the application for a protected action ballot is made by an individual employee or employees, they will also have the option of doing so through an agent so that their identity will be protected. This protection will also be extended to employees initiating a bargaining period.

The new provisions set out procedural requirements for ballots, including specific information that must be provided to employees in ballot papers. Industrial action would be authorised by a ballot if at least 50 per cent of eligible voters participate in the ballot, and if more than 50 per cent of the votes cast are in favour of the proposed industrial action.

The Commission will be required to act quickly in relation to applications for protected action ballots, and would be required, as far as possible, to determine an application for a ballot order within 4 working days of the application being made. In making a determination in relation to a protected action ballot application the Commission must be satisfied that the applicant has genuinely tried to reach agreement with the employer.

This bill enhances the role of the Commission. This is an outcome that should be welcomed by the Australian Democrats and the Labor Party who both regularly make calls to enhance the powers of the AIRC.

Unions would normally be liable for any costs incurred in the process of consulting their members over proposed industrial action. However, consistent with the Government's commitment to ensuring responsiveness and accountability, the Commonwealth will reimburse 80 per cent of the reasonable cost of the ballot - whether the application is made by a union or an individual employee or employees.

These measures will improve the quality of workplace relations in our community, and the grass roots involvement of working people in decisions that affect their jobs, job security and working conditions.

Of course this matter has already been before a Senate committee. However, the government would welcome further Senate scrutiny provided that such a committee will review the bill in order to achieve a workable scheme rather than just be a platform for union opposition to fundamental democratic principles.

The right of the Coalition to implement its workplace relations mandate, subject to constructive Senate review, is a principle that has been acknowledged by the Democrats - and one that they should now act upon.

On 15th June 1996 the then Leader of the Australian Democrats (now Labor shadow Minister Kernot) said on the issue of workplace relations, and I quote:

“The Democrats accept that the Government has been elected to govern and that it has its right to present its legislative program to the Parliament for consideration. But the Democrats have been elected to do a job, and that is to closely scrutinise legislation to ensure that it is fair, and workable and the best solution to an identified problem.”

“...the Democrats have no intention of being obstructionist in this Senate. As we have done for 15 years of holding balance of power, we will carefully review legislation, suggesting ways to make it work better if possible.”

Adopting a just say `no' attitude to this bill would be inconsistent with not only the proper role of the Senate as a House of Review, but also breach the principle under which the Democrats themselves marked out their past approach to these issues, at least until 1997.

THE PROTECTION OF THE SEA (CIVIL LIABILITY) AMENDMENT BILL 2000

The Protection of the Sea (Civil Liability) Amendment Bill 2000 will amend the Protection of the Sea (Civil Liability) Act 1981 (Civil Liability Act) to strengthen Australia's existing legislation governing the protection of the marine environment.

The most important amendment in this Bill is the insertion of a new Part IIIA into the Civil Liability Act to require all ships entering or leaving an Australian port and which carry oil either as cargo or as fuel to be insured to cover the cost of any pollution damage from the ships. The amendment will only apply to ships of 400 tons or over. This is the size of ship to which international conventions on marine pollution generally apply.

The amendment will not apply to oil tankers carrying more than 2,000 tons of oil as cargo. The Civil Liability Act already requires those ships to have an insurance policy to cover the cost of the clean up following a spillage of oil. This is in accordance with the International Convention on Civil Liability for Oil Pollution Damage.

The amendment will give effect to recommendations contained in the 1992 Ships of Shame report and the 1998 Ship safe report. It is also consistent with the Government's ongoing commitment in this area as set out in Australia's Ocean Policy, which was released by the Government in 1998.

Shipowners already have an obligation to meet any pollution liabilities they incur in Australia. This legislation will merely require shipowners to have insurance to cover those existing liabilities. There is a risk in the case of a major spill that an uninsured shipowner would not be able to meet his or her liabilities to contribute to the cost of the clean up. A shipowner does not have unlimited liabilities in the case of an oil spill. However, existing liability limits are high enough to meet the total cost of the clean up following the majority of spillages. The requirement for insurance will ensure that the cost of the clean up does not have to be met by Governments and the community. The amendment has the full support of the shipping industry.

Customs officers will check every ship that enters an Australian port to determine if the ship has appropriate insurance cover. As this check will be part of the routine check of documentation that already occurs for all ships, it will not place an administrative burden on either the crew of ships or on Customs. Any ships that do not have adequate insurance may be detained until the requirements of the legislation are met. While the master and owner of an uninsured ship will be liable on conviction of a penalty of up to 500 penalty units, the possible detention for failure to be insured is a greater incentive for a shipowner to arrange insurance.

In the international context, Australia, as a member of the International Maritime Organization, has been a key advocate for an international regime of compulsory insurance to cover the cost of pollution damage following a spill of bunker fuel. A draft text for a new international instrument has been developed and is expected to be concluded in early 2001, although it is expected to be some years before any new convention comes into effect internationally.

These amendments to the Civil Liability Act are being introduced now, rather than waiting for the conclusion of an international convention, because of the importance placed on the protection of the Australian marine environment by the Government. A number of other countries, such as Canada and the United States, have similar domestic legislation in place.

The Australian Maritime Safety Authority (AMSA) is empowered by the Protection of the Sea (Powers of Intervention) Act 1981 to take “intervention action” to prevent or reduce pollution where oil or some other noxious substance has escaped from a ship or is likely to escape from a ship. The intervention action may range from moving the ship to another place to, in an extreme case, sinking the ship. The cost to AMSA of such intervention action may be recovered from the shipowner. The shipowner's liability is limited by section 20 of the Civil Liability Act. There is currently some uncertainty about the liability limits that apply, due in part to the use of obsolete terminology. Part 2 of the Bill amends section 20 to remove the uncertainty by specifying that the limit will be the limit that applies under any international conventions in force in Australia that apply to the ship.

The Civil Liability Act allows AMSA to recover any costs it incurs in performing its function under its enabling legislation to combat pollution in the marine environment, where the pollution is caused by a discharge or disposal from a ship. The Civil Liability Act is quite explicit in stating that AMSA may recover its costs where there has been an actual discharge or disposal from a ship. But there is some doubt about AMSA's ability to recover its costs where there has been a threat, but no actual discharge or disposal, for example, where a ship has gone aground. The amendment contained in Part 3 of the Bill will remove this doubt.

Finally, in accordance with modern drafting practice, Part 4 of the Bill will convert all penalties in the Act to penalty units.

Debate (on motion by Senator O'Brien) adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.