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Wednesday, 25 September 2002
Page: 4814


Senator SHERRY (10:55 AM) —by leave—I move Labor amendments (2) and (3) on sheet 2595:

(2) Schedule 1, item 1, page 3 (line 7) to page 4 (line 2), omit the item, substitute:

1 After section 170MK

Insert:

170MKA Good faith bargaining

(1) A negotiating party to a proposed agreement must take part in negotiations and must negotiate in good faith and genuinely try to reach agreement with the other negotiating party or parties.

Note: The issue of whether a negotiating party is genuinely trying to reach agreement with the other negotiating parties was considered by Justice Munro in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Print T1982.

(2) This section is not to be taken to require a negotiating party to:

(a) agree on any matter for inclusion in an agreement; or

(b) enter into an agreement.

(3) For the purpose of subsection (1), “negotiating in good faith” includes:

(a) agreeing to meet face-to-face at reasonable times proposed by another party;

(b) attending meetings that the party has agreed to attend;

(c) complying with negotiating procedures agreed to by the parties;

(d) disclosing relevant information, subject to appropriate undertakings as to confidentiality, for the purposes of negotiations;

(e) stating a position on matters at issue, and explaining that position;

(f) considering and responding to proposals made by another negotiating party;

(g) adhering to commitments given to another negotiating party or parties in respect of meetings and responses to matters raised during negotiations;

(h) dedicating sufficient resources and personnel to ensure genuine bargaining.

(4) For the purpose of subsection (1), a party must not:

(a) capriciously add or withdraw items for negotiation; and

(b) refuse or fail to negotiate with one or more of the parties; and

(c) in or in connection with the negotiations, refuse or fail to negotiate with a person who is entitled under this Part to represent an employee, or with a person who is a representative chosen by a negotiating party to represent it in the negotiations; and

(d) in or in connection with the negotiations, bargain with, attempt to bargain with or make offers to persons other than another negotiating party, about matters which are the subject of the negotiations.

170MKB Management of good faith bargaining

(1) For the purposes of section 170MKA, the Commission may make orders to:

(a) ensure that a negotiating party negotiates with another negotiating party; or

(b) ensure that negotiating parties to a proposed agreement negotiate in good faith; or

(c) promote the efficient conduct of negotiations for a proposed agreement; or

(d) otherwise facilitate the making of an agreement.

(2) In determining what orders (if any) to make, the Commission:

(a) must consider whether a negotiating party has negotiated in good faith pursuant to the obligations imposed by section 170MKA; and

(b) may consider:

(i) proposed conduct of any of the parties (including proposed conduct of a kind referred to in paragraph (a)); and

(ii) any other relevant matter.

(3) Without limiting the generality of subsection (1), the Commission may make orders that a negotiating party take, or refrain from taking, specified action, including:

(a) requiring a negotiating party to adhere to commitments given to another negotiating party or parties in respect of attending meetings and providing responses to matters raised during negotiations;

(b) setting time limits for the completion of negotiations in respect of a proposed agreement.

(4) The Commission may not make an order which will:

(a) prevent a negotiating party from trying to reach an agreement with another negotiating party;

(b) require a negotiating party to:

(i) agree on any matter for inclusion in an agreement; or

(ii) enter into an agreement.

(3) Schedule 1, page 4 (after line 2) after item 1, insert:

2AA At the end of subsection 170MW(2)

Note: The issue of whether a negotiating party is genuinely trying to reach agreement with the other negotiating parties was considered by Justice Munro in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Print T1982.

As was referred to in my speech in the second reading debate and in the contributions of a number of other senators on this side of the chamber, the amendments moved by Labor are designed to restore the power of the Industrial Relations Commission to ensure that enterprise bargaining is truly conducted in good faith. This power was stripped from the commission by the Liberal government in 1996. Amendment (2) proposes a new section 170MKA that requires all parties—and I emphasise `all'—to a proposed agreement to negotiate in good faith and to genuinely try to reach agreement.

Mention has been made in a number of the contributions earlier of the decision by Justice Munro in Australian Industry Group v. AFMEPKIU. This decision has been referred to by a number of speakers in previous second reading contributions. The principles embodied in His Honour's decision will assist in reckoning what is and is not acceptable conduct in negotiations. Further provisions in proposed new section 170MKA give guidance on what is expected in negotiations. I think it is worth while running through the expectations of negotiating in good faith and genuinely trying to reach agreement that are detailed in the Labor Party's amendments. For example, it means showing up for agreed meetings, following agreed procedures, responding to proposals and disclosing relevant information. Apart from being good manners, such conduct would no doubt help bring about a meeting of minds, if a meeting of minds is to occur.

Also under proposed new section 170MKA are examples of the sort of conduct which is not to be countenanced. Some examples of that are capriciously adding or withdrawing items from negotiations or failing to negotiate with authorised representatives. However, no-one can be compelled to accept or reject a term in an agreement. Certainly, for those who are not, or have not been, involved in industrial relations negotiations and who are listening to this debate, it would seem a touch extraordinary that people could agree to show up for a meeting or set a meeting date and then deliberately refuse to attend the meeting. That sort of conduct should not be tolerated—it does not matter who practises that sort of approach—even though it does occur from time to time. If a meeting schedule is agreed to, people should show up for the meeting unless there is good reason for not doing so. A no-show should not be used as some sort of tactic to disrupt negotiations.

As for `responding to proposals', to people who are not involved in industrial relations it would seem quite extraordinary that before a party sits down with a list of proposals the other party can simply refuse to respond in any way whatsoever or that you get the absurd situation where you get to a face-to-face meeting and ask for a response to a set of claims and the party opposite does not say anything; it does not open its mouth. Then there is `disclosing relevant information'. These are things that the Australian community would generally and reasonably expect. It is the sort of conduct that the parties should be guided by when negotiations are entered into. Certainly by any community definition and commonly understood definition, turning up to agreed meetings, following agreed procedures and at least responding to proposals is `negotiating in good faith'.

The Labor Party has listed in some detail the sort of best practice that would be normally expected in these types of negotiations and has also listed the sorts of practices that should not be countenanced and would be unacceptable to any reasonable person in the community, whether that person is or is not involved in negotiations of this sort. Under proposed section 170MKB, the commission will be given the power to make negotiating parties observe what is required under section 170MKA. Consistent with proposed section 170MKA, the commission will not have the power to require a party to agree on any matter for inclusion in an agreement. Those are the comments that I wish to make in this debate in support of our amendments (2) and (3).