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Wednesday, 25 September 2002
Page: 4812


Senator TROETH (Parliamentary Secretary to the Minister for Agriculture, Fisheries and Forestry) (10:37 AM) —It is important to realise that both the Workplace Relations Amendment (Genuine Bargaining) Bill 2002 and the Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2002 will protect and create jobs, because they are important for the future of enterprise bargaining, which is the cornerstone of improvements in workplace relations and the resulting productivity increases. The Workplace Relations Act does need further reform to remove the possibility of misuse of reforms already implemented, particularly in relation to protected industrial action. The genuine bargaining bill will ensure that protected industrial action is only available to a party which is genuinely trying to reach agreement with the other party or parties. It will also help prevent evasion of Australian Industrial Relations Commission orders to suspend or terminate a bargaining period. As well, it will make clear the provision for cooling-off periods.

A number of ALP senators have suggested that the genuine bargaining bill prevents the making of common claims against a range of employers. The genuine bargaining bill does not prevent the making of common claims against a range of employers, so I set that out from the start. But if the party making common claims wants to take protected action, it is an appropriate price for that privilege to require that party to be genuinely trying to reach agreement with each employer rather than holding out for agreement by all the employers in the same terms.

Senators on the other side have also suggested that the bill would prevent multiemployer agreements. Multiemployer agreements will still be able to be certified under the genuine bargaining bill. On the other hand, protected industrial action is not available under the current legislation to support claims for multiemployer agreements. The genuine bargaining bill does not contain any new limitations with regard to multiemployer agreements.

Senators on the other side have also suggested that the commission already has sufficient power to deal with parties not genuinely trying to reach agreement. The decision of Justice Munro in the Campaign 2000 case is a good precedent, but without this bill it is not sufficiently certain and clear to employers and employees what the commission will consider when determining whether to suspend or terminate a bargaining period because a party was not genuinely trying to reach agreement. Some senators simply want to insert a note referring to Justice Munro's decision, but that is not enough. If senators support the decision, they should recognise the value of confirming that it is the correct approach to the commission's exercise of its discretion in this area.

The secret ballots bill provides that industrial action taken by employees will not be protected unless it is approved by a secret ballot. It has been suggested that the procedures for secret ballots are excessively detailed and bureaucratic. In fact, the procedures are lengthy because they provide comprehensive guidance to the commission on its new responsibility of overseeing ballots, not because they dictate all the specific steps that parties wanting to conduct ballots will have to follow. The ballot process need involve only the following steps: step one, notify a bargaining period; step two, decide to propose protected action and decide on the nature of the proposed action and the ballot question; step three, apply to the commission for a ballot order and notify other parties; step four, the commission makes a ballot order; and step five, the ballot is conducted. These steps can be completed so that protected action can commence as soon as a nominal expiry date has passed.

A number of Labor senators have also claimed that there are inconsistencies in requiring a ballot for employees to commence industrial action but not for an employer to commence a lockout or for employees to cease industrial action. The focus in the bill is on the decision to commence protected action because protected action is a legislative and practical privilege, whereas the act of calling off industrial action does not need or attract any legislative privilege. Again, any employee will be free to stop participating in authorised action at any time. There is no sensible basis for employer ballots, because each employer is a single legal entity. Employers are not democracies. Asking shareholders to vote on a lockout would take decisions on agreement making away from the workplace level and out of the hands of the people directly responsible for agreement negotiation.

Senators also suggested that the bill is not needed because the existing provisions in the act for secret ballots have rarely been used. The existing provisions in the act were not designed to ensure that all relevant employees can participate in a secret ballot as a matter of course, as a precondition to protected industrial action. The commission has generally only used ballots under these provisions to test the views of employees who are already on strike rather than to ensure democratic processes in relation to the original decision to authorise industrial action.

Senator Murray has put forward a proposal for secret ballots to be held in certain circumstances where a member has requested it or where the commission has ordered that a ballot take place. The government welcomes this indication that the Democrats share the government's recognition of the importance of democracy in decision making about industrial action. The government favours the approach in the bill which would enshrine in the act a right for union members to have a say in authorising industrial action.

The ALP have put forward an amendment to the second reading motion for the Workplace Relations Amendment (Genuine Bargaining) Bill 2002. The first limb of this motion refers to unreasonably emasculating the powers of the AIRC to resolve industrial disputes in the interests of the parties. The bill emphasises the commission's role under the existing provisions and gives the commission new powers to make its orders for suspension or termination of a bargaining period effective.

The second limb of the motion refers to interfering with the AIRC's discretion to deal with industrial disputes in the most appropriate way. As noted by Senator Murray, the government's previous legislation has guided the AIRC's discretion in a very appropriate way, which has been responsible for the productivity growth and reduction in industrial disputation achieved under the government's legislation.

The third limb refers to failing to put forward constructive proposals to enable the commission to direct parties to bargain in good faith. The government does not support the commission making orders about how the parties should bargain. The act already provides important protections against illegitimate bargaining actions such as coercion or the dismissal of employees. The government trusts in the capacity of the parties to reach agreement, if and when they want to, with protected action available as a persuasive tool for any party so long as it is genuinely trying to reach agreement with the other party or parties. The ALP's amendment to the motion should be rejected and the bill should be supported. I commend the bill to the Senate.

Question put:

That the amendment (Senator Sherry's) be agreed to.