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Wednesday, 25 September 2002
Page: 4830


Senator SHERRY (12:39 PM) —I have just indicated to the chamber that the Australia Democrats' amendments to the Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2002 are being circulated. I am not criticising that; we received a copy about an hour ago, Senator Murray. I want to make some comment about the amendments. I will do that now. When we resume the committee stage this afternoon, I am sure we can deal with the amendments in a considered and timely way. In terms of the committee debate we are having, I want to continue with some remarks I was making previously which are relevant to the bill that we are considering.

Concerning the proposed amendments, I was making some comments about clause 170NBCK and the difficulty the commission will have in dealing with this. In that process, the commission would have to compile a roll of eligible voters. The commission is given the power to require the employer and the union to provide a list of names and any other information it is reasonable to require to assist with the compilation of the roll. Employers will no doubt thank the Minister for Employment and Workplace Relations for this aspect of the bill: they will have to put aside their GST paperwork to complete secret ballot paperwork. I do not think employers will be particularly keen on that approach.

An employee is only an eligible voter if they were employed on the day the ballot order was made and their employment would be subject to the agreement. If the applicant for the ballot is a union, then the employee must also have been a member of that union on the day the ballot order was made. But an employee is not an eligible voter if they are subject to an AWA on the day that the order was made. Once the roll has been drawn up, there is then an opportunity for employees to apply to have their names either added to or removed from the roll.

Clause 170NBDA of the bill heralds the arrival—not before time—of ballot day. Ultimately, when the ballot is cast after this extraordinarily bureaucratic process, employees can vote. For employees who have spent many days compiling the paperwork, appearing in the commission and finalising the electoral roll, their minds have presumably long since turned from reaching an agreement with the employer and their one goal is to cast their votes so that they can go on strike.

But, first, the ballot paper must be prepared and copied and it must be in a prescribed form. Senator Alston made a contribution in the previous debate about prescription. He criticised prescription. I have rarely seen prescription of the type that we are considering in the legislation we are dealing with in committee. Clause 170NBDA states:

The ballot paper must be in the prescribed form and must include the following:

(a) the name of the applicant or the applicant's agent (as the case requires);

(b) the types of employees who are to be balloted;

(c) the name of the ballot agent authorised to conduct the ballot;

(d) the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed industrial action; and

(e) a statement that the voter's vote is secret and that the voter is free to choose whether or not to support the proposed industrial action; and

(f) instructions to the voter on how to complete the ballot paper.

Once the ballot has been held, the votes counted and any disputes about hanging chads are put to rest—I think people are pretty much aware of what a hanging chad is now, although I noticed they could not get it right in Florida for the second time.


Senator Murray —It's not a medical term, is it?


Senator SHERRY —It is not on the PBS, Senator Murray—the hanging chad! Whilst the paperwork is finalised, including the ballot agent's report and the publication of the ballot results by the industrial registrar, the employees turn their eyes to clause 170NBDD to see if they can take industrial action. One by one, they tick off the requirements: the action was the subject of a protected action ballot; the prescribed percentage of persons on the roll are voters for the ballot voted in the ballot—40 per cent by default; more than 50 per cent of the votes validly cast were votes approving the action; and the action commences within 30 days of the declaration of the results of the ballot.

The Workplace Relations Act already contains provisions which enable the Industrial Relations Commission to order a secret ballot on industrial action or on any other issue in an industrial dispute. In fact, in a ministerial discussion paper entitled `Pre-industrial action secret ballots', published in 1998, it was found the commission had used its existing powers strategically to progress dispute resolution, particularly when the parties had reached a stand-off.

Progress reported.