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Monday, 6 August 2001
Page: 25637


Senator TAMBLING (Parliamentary Secretary to the Minister for Health and Aged Care.) (4:21 PM) —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 (PROHIBI-TION OF COMPULSORY UNION FEES) BILL 2001

An important characteristic of Australia's reformed workplace relations system is the opportunity it has given for workers, union and non-union alike, to fully participate in the formal processes of the system, particularly in making collective or individual workplace agreements. A significant contributing factor in this transformation has been the Coalition's commitment to freedom of association in the workplace. This fundamental principle is reflected in both the objects and provisions of the Workplace Relations Act 1996, such as those which prohibit compulsory unionism, preference to unionists or coercion in agreement making; and in the promotional and enforcement functions of the Office of the Employment Advocate.

Regrettably, this commitment to the principle of both individual and collective freedom of association is not shared by all in this parliament. In recent years an emerging trend has been identified whereby certain trade union leaders have attempted to coerce non-union employees into joining a union by making a demand that all non-unionists pay a `service fee' on account of union participation in agreement negotiations in their workplace. The coercive nature of the compulsory fee demand is highlighted by the fact that it is typically made without the consent of the relevant employee, and may not even be made until after the so-called services are rendered. Indeed, in many cases the fee demanded has been set at about $500 per year, well above the level of annual union dues.

At its June 2000 conference, the Australian Council of Trade Unions formally adopted a policy in support of unions pursuing these compulsory fees, and including them in certified agreements. Compulsory fee demands on non unionists are now being included in union bargaining logs of claim across a variety of industries.

There can be no doubt that a compulsory fee demand that is not accompanied by the genuine prior consent of the relevant employee is an affront to that employee's individual rights to freedom of association. Employees who have chosen not to be members of a trade union are faced with the payment of a bargaining fee to that union, or payment of an annual trade union membership fee. Employees who are members of trade unions but who wish to resign their membership are placed in an equally invidious position.

The government does not accept that employees should be the subject of such direct or indirect coercion. The principles of freedom of association and freedom in agreement making mean that an employee should be entitled to exercise their own choice about how and if they wish to participate in negotiating workplace agreements in their workplace. Indeed, under the Workplace Relations Act 1996 employees are not only entitled to the protection of the law if they choose to join or not join a trade union, but they are also entitled to nominate themselves or any other person as their bargaining agent in workplace negotiations. Unless such fees are the product of informed prior written consent by the individual employee subject to the demand, they are coercive and should be unlawful.

It is also of concern to the government that trade unions advocating such fees are seeking to include compulsory fee demands in certified agreements. This means that those unions are trying to extract a majority employee vote to coerce non union members (who may in fact have voted against the agreement) either to pay the fee or join the union. That is fundamentally unfair, and should not be countenanced by public policy makers.

Moreover, by attempting to use the cover of a certified agreement, trade unions are attempting to use an industrial instrument recognised by the Workplace Relations Act, and approved by the Australian Industrial Relations Commission, to give such demands an aura of legitimacy that they would not otherwise have. It is in the public interest that the Act not only prohibit such non consensual demands but also prevent the misuse of certified agreements to advance these coercive purposes. That is what this Bill does.

The inclusion of these compulsory fees in certified agreements was recently challenged in the Australian Industrial Relations Commission by the Employment Advocate. In a decision earlier this year, a senior member of the AIRC found that such fees are designed for coercive purposes. It was, however, concluded that upon a construction of the current terms of the Workplace Relations Act 1996 they were not prohibited from inclusion in certified agreements, notwithstanding their coercive character. Although that decision is under appeal, the fact that there is no specific statutory prohibition on such provisions means that their coercive impact may remain until such time as the loophole allowing their inclusion in certified agreements is closed by legislative amendment.

I now turn to the provisions of the Bill.

This Bill proposes to amend the Workplace Relations Act to prohibit unions and employer organisations from requiring non members to pay fees for `bargaining services' except where an employee has individually agreed in writing to pay a fee in advance of the bargaining services being provided. Given that agreement to any payment of such fees should be a private matter for the individual choice of each employee unfettered by others, the Bill will prohibit a certified agreement from including any provision relating to payment of fees for bargaining services.

This Bill proposes to amend the Workplace Relations Act to prohibit discriminatory action against a person because he or she has refused to pay or agreed to pay a fee for bargaining services, or because the person has paid, or intends to pay a lawfully recognised fee. The amendments will also prohibit unions and employer organisations from encouraging or inciting others to take discriminatory action for these same reasons. These amendments will have equal application to both trade unions and employer associations.

In introducing this Bill the government is making it abundantly clear that the specific terms of the Workplace Relations Act should prohibit non consensual fee demands. Whilst we have intended that the current terms of the Act proscribe such provisions in certified agreements, the recent activism by trade unions in advancing these demands and the legal doubt now cast over the issue make a compelling case for specific legislative action.

In introducing this Bill I emphasise that the government does not seek to impede the proper activities of trade unions and employer organisations. The Bill itself gives scope for bargaining fees which are the product of genuine prior consent of the individual and the relevant organisation. Indeed, our laws recognise an important statutory role for registered industrial 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 protection from coercive or discriminatory conduct. Organisations that seek to achieve relevance in the workplace through coercive conduct, as these fee demands have been characterised by the Australian Industrial Relations Commission, should be given no comfort by the workplace relations system.

PATENTS AMENDMENT BILL 2001

The major objective of the Patents Amendment Bill 2001 is to implement improvements to Australia's intellectual property system set out in the Government's Innovation Action Plan for the Future, Backing Australia's Ability. In the Innovation Action Plan we committed to strengthening and making Australian patents more certain by changing the novelty and inventive step requirements of the Patents Act 1990, to more closely align these tests with international standards. We will do this by acting on the recommendations of the Intellectual Property and Competition Review Committee and of the Advisory Council on Industrial Property review of patent enforcement. I thank the Committee and the Council for their important work in this area. Although the Innovation Action Plan statement only encompasses standard patents, most of the amendments to implement this commitment are also being made to the new innovation patent system to ensure that these new patents are subject to the same higher standards and are not less valid or less enforceable patent rights.

This Bill will amend the Patents Act to achieve this aspect of the Innovation Action Plan. It will do this in three ways. First, it will expand the prior art base, which is the publicly available information that an invention is compared against to determine whether it is novel and involves an inventive or innovative step. The prior art base currently consists of information in a document that is available anywhere in the world, but restricts information made available through doing an act to Australia and, in relation to inventive or innovative step, common general knowledge to Australia. This Bill amends the prior art base for both innovation patents and standard patents to remove the restriction of common general knowledge and information made available through doing an act to Australia. Such a restriction is seen as artificial in this age of increasing globalisation. In addition, the prior art base for assessing inventive step will be amended to allow different pieces of information to be combined. This will increase the scope of the information the Commissioner can take into account in deciding whether an invention involves an inventive or innovative step and will more closely align our practices with those of Europe and the United States.

Secondly, the Bill replaces the requirement that a patent applicant be given the benefit of any doubt the Commissioner of Patents has as to whether an invention is novel and involves an inventive or innovative step, with a more stringent test similar to the `balance of probabilities' test more generally used in civil law matters. The new test will require that the Commissioner must be satisfied that an invention claimed in an application for a standard patent satisfies the novelty and inventive step criteria in the Act. In relation to innovation patents, the Commissioner must be satisfied that the invention complies with the novelty and innovative step tests. It is appropriate that these amendments only apply to the Commissioner's decision in relation to the important tests of novelty, inventive step and innovative step — the test for the Commissioner's decision about whether the other requirements of the Patents Act have been met will not be changed.

Thirdly, the Bill will require that an applicant for a standard patent or an innovation patent owner must provide the Commissioner with the results of any searches of the prior art base that have been carried out in respect of the invention claimed in the application, or in any corresponding application filed overseas. This will ensure that, when determining whether an invention meets the requirements for novelty, inventive step or innovative step, the Commissioner has available all prior art information that the patent applicant or owner is aware of.

These amendments are consistent with the requirements in many other countries and will prevent patents being granted in Australia for inventions that would not be patentable in those countries.

This Bill also makes a number of other minor and technical amendments to the Patents Act.

Currently, it is possible to have a patent re-examined after it is granted, but the Commissioner can only re-examine an application between acceptance and grant if there is an opposition to the grant of the patent. It is preferable for re-examination, if necessary, to occur before grant so that any issues about the validity of the patent can be resolved before the patent right is granted. Therefore, the Bill removes the restriction on re-examination between acceptance and grant.

The Bill also brings the Patents Act into line with the proposed Patent Law Treaty (PLT). The PLT is intended to make it easier for patent applicants to obtain patent rights in a number of countries by standardising the formality requirements associated with the patent application process. This will make applying for patents in several countries easier and cheaper because the rules will be the same in all member countries. Although accession to this treaty is not planned at this stage, it is envisaged that Australia will likely accede because of the advantages it offers to patent applicants.

The Patents Act is already substantially compliant with the PLT, however, two minor amendments are needed. These amendments will provide an additional ground on which an application for extension of time can be granted, which is less onerous from the applicant's perspective than current requirements, and also make it clear that certain fees can be paid by any person.

The Government is committed to ensuring that the legitimate interests of third parties are not compromised by the grant of a patent. For this reason, the Bill also amends section 119 of the Patents Act to correct an inconsistency that would prevent a third party from continuing to use an invention they had legitimately begun to use before patent protection for that invention was sought by the eventual patent owner. The amendments will allow third parties to rely on the prior use defence in section 119 if they derived the subject-matter of the invention from a public disclosure by the patentee provided for by section 24 of the Patents Act.

The amendments in this Bill will result in stronger patent rights and improve the operation of the patent system. The Bill reflects the Government's commitment to encouraging innovation and providing Australia with a strong intellectual property system that meets the needs of Australians.

Debate (on motion by Senator Ludwig) adjourned.

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