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Wednesday, 25 September 2002
Page: 4900


Senator MURRAY (5:42 PM) —by leave—I move Democrat amendments (1), (4), (R6) and (8) on sheet 2632 Revised:

(1) Schedule 1, item 2, page 3 (lines 27 to 29), omit the item, substitute:

2 Subsection 134(5) (paragraphs (d) and (e) of the definition of prescribed premises)

Omit “or 136”, substitute “, 136 or Division 8A of Part VIB”.

(4) Schedule 1, item 20, page 7 (line 33), omit “170NBDC”, insert “170NBCD”.

(R6) Schedule 1, item 25, page 10 (line 33) to page 36 (line 18), omit the item, substitute:

25 After Division 8 of Part VIB

Insert:

Division 8A—Secret ballots on proposed protection action

Subdivision A—General

170NBA Object of Division and overview of Division

Object

(1) The object of this Division is to establish a transparent process which allows union members directly concerned to choose, by means of a fair and democratic secret ballot, whether to authorise industrial action supporting or advancing claims by unions.

Overview of Division

(2) Under Division 8, industrial action by union members is not protected action unless it has been authorised by:

(a) the relevant union; or

(b) a secret ballot of relevant union members; or

(c) the Commission.

(3) A secret ballot is required if it has been:

(a) requested by a relevant union member; or

(b) ordered by the Commission.

(4) A secret ballot is conducted according to:

(a) the rules of the relevant union; or

(b) if there are no union rules, the model rules established by the Commission;

and in any case rules must be adopted within nine months of the commencement of this provision.

(5) The rule that industrial action by employees is not protected action unless it has been authorised does not apply to action in response to an employer lockout (see section 170MQ).

170NBAA Definitions

In this Division:

ballot ordermeans an order made under section 170NBBF requiring a protected action ballot to be held.

bargaining period has the meaning given in subsection 170MI(1).

negotiating partyhas the meaning given in subsection 170MI(3).

party, in relation to an application for a ballot order, means either of the following:

(a) the applicant;

(b) the employer of the relevant union members.

proposed agreement, in respect of a bargaining period, means the proposed agreement in respect of whose negotiation the bargaining period has been initiated.

protected action ballotmeans a secret ballot under this Division.

relevant union, in relation to proposed industrial action against an employer in respect of a proposed agreement, means any union which is a negotiating party to the agreement.

relevant union member, in relation to proposed industrial action against an employer in respect of a proposed agreement, means any member of the relevant union who is employed by the employer and whose employment will be subject to the agreement but does not include a union member who is a party to an AWA whose nominal expiry date has not passed.

Subdivision B—Authorising protected action

170NBB How is protected action authorised

Industrial action by employees is not protected action unless it has been authorised by:

(a) the relevant union; or

(b) a secret ballot of relevant union members; or

(c) the Commission.

170NBBA How and when can a union authorise protected action

(1) A relevant union may, subject to subsection (3), make a declaration to authorise industrial action by relevant union members as protected action in accordance with its rules provided that:

(a) if there is only one existing agreement—the action commences during the 30-day period beginning on whichever is the later of the following:

(i) the date of the declaration;

(ii) the nominal expiry date of the existing agreement; or

(b) if there are 2 or more existing agreements—the action commences during the 30-day period beginning on whichever is the later of the following:

(i) the date of the declaration;

(ii) whichever is the last occurring of the nominal expiry dates of those existing agreements; or

(c) if there is no existing agreement— the action commences during the 30-day period beginning on the date of the declaration.

Note: Industrial action must be authorised under this Division if it is to be protected action under Division 8—see section 170MQ.

(2) However, the action is not authorised to the extent that it occurs after the end of the bargaining period.

Note: If another bargaining period is initiated later, and industrial action is proposed for that later period, it can only be authorised if a fresh application for a ballot order is granted, and the other steps required by this Division completed, during that later period.

(3) If a relevant union does not have in place rules that establish how protected action may be authorised, then protected action requested by a relevant union member may only be authorised according to a secret ballot conducted under the Commission's model rules according to section 170NBCC.

(4) A relevant union may not authorise protected action under subsection (1) if a secret ballot is required under section 170NBBB.

170NBBB When is a secret ballot required to authorise protected action

A secret ballot is required, and no protected action will be otherwise authorised, if it has been:

(a) requested by a relevant union member as provided by the rules; or

(b) ordered by the Commission.

170NBBC Secret ballot may be requested by relevant union member

A relevant union member may, during a bargaining period for the negotiation of a proposed agreement under Division 2 or 3 of this Part, request the relevant union to which the member belongs to hold a protected action ballot to determine whether proposed industrial action has the support of the majority of relevant union members.

170NBBD Secret ballot may be ordered by Commission

(1) A party referred to in subsection (2) may, during a bargaining period for the negotiation of a proposed agreement under Division 2 or 3 of this Part, apply to the Commission for an order for a ballot to be held to determine whether proposed industrial action has the support of a majority of relevant union members.

Note: For the duration of a bargaining period, see sections 170MK (when it begins) and 170MV (when it ends).

(2) The following parties may apply:

(a) the relevant union to which the relevant union members mentioned in subsection (1) belong;

(b) any employer or organisation of employers who is a negotiating party to the proposed agreement.

170NBBE Commission must be satisfied of various matters

The Commission may grant an application for a ballot order, but must not grant the application unless it is satisfied that:

(a) any court, judicial inquiry or Royal Commission findings justify such an order; or

(b) any other particular and significant circumstances exist that mean such an order is appropriate.

170NBBF Grant of application—order for ballot to be held

If the Commission grants the application, the Commission must order a protected action ballot to be held by the relevant union.

Note: The Commission may make an order requiring a secret ballot to be held for one or more bargaining periods.

Subdivision C—Conduct and results of protected action ballot

170NBC Ballot must be secret

A protected action ballot must be a secret ballot.

170NBCA How is a secret ballot to be conducted

(1) Subject to subsection (2), a secret ballot is conducted according to:

(a) the rules of the relevant union; or

(b) if there are no union rules the model rules established by the Commission.

(2) Before conducting a secret ballot a union must give its relevant union members:

(a) reasonable notice that the secret ballot will be held; and

(b) information as to the matters which are to be dealt with in the proposed agreement and the general nature of the proposed industrial action.

170NBCB Union rules for conduct of secret ballot

(1) A secret ballot is to be conducted according to the rules of the relevant union.

(2) If the relevant union does not have rules in place in accordance with subsection (1) for the conduct of a secret ballot to authorise protected action then the secret ballot is to be conducted in accordance with the model rules established by the Commission under section 170NBCC.

(3) A union must adopt its own rules or the Commission's model rules within nine months of the commencement of this Division.

170NBCC Commission model rules for conduct of secret ballot

The Commission shall issue model rules for the conduct of secret ballots.

170NBCD Declaration of ballot results

As soon as practicable after the end of the voting, the union must, in writing:

(a) make a declaration of the result of the ballot; and

(b) inform the relevant union members, negotiating parties and the Industrial Registrar of the result.

170NBCE Effect of ballot

(1) Industrial action is authorised under this Division if more than 50% of the votes validly cast were votes approving the action and:

(a) if there is only one existing agreement—the action commences during the 30-day period beginning on whichever is the later of the following:

(i) the date of the declaration of the results of the ballot;

(ii) the nominal expiry date of the existing agreement; or

(b) if there are 2 or more existing agreements—the action commences during the 30-day period beginning on whichever is the later of the following:

(i) the date of the declaration of the results of the ballot;

(ii) whichever is the last occurring of the nominal expiry dates of those existing agreements; or

(c) if there is no existing agreement— the action commences during the 30-day period beginning on the date of the declaration of the results of the ballot.

Note: Industrial action must be authorised under this Division if it is to be protected action under Division 8—see section 170MQ.

(2) However, the action is not authorised to the extent that it occurs after the end of the bargaining period.

Note: If another bargaining period is initiated later, and industrial action is proposed for that later period, it can only be authorised if a fresh application for a ballot order is granted, and the other steps required by this Division completed, during that later period.

(3) The Commission may, by order, extend the 30-day period mentioned in paragraph (1)(a), (b) or (c) by up to 30 days if the employer and the applicant for the ballot order jointly apply to the Commission for the period to be extended.

(4) The Commission must not make an order under subsection (3) extending the 30-day period if that period has been extended previously.

(5) If industrial action commences during the 30 day period, stops and re-starts within a reasonable period after the 30 day period, no new authorisation is required if the industrial action is substantially the same.

(6) Industrial action is taken, for the purposes of this Division, to be duly authorised even though a technical breach has occurred in authorising the industrial action, so long as the person or persons who committed the breach acted in good faith.

Subdivision D—Funding of ballots

170NBD Liability for cost of ballot

Union member initiated ballot

(1) The relevant union is the party liable for the cost of holding the protected action ballot, if a relevant union member initiated that ballot under section 170NBBC.

Commission ordered ballot

(2) If the Commission ordered the ballot to be conducted, the applicant for a ballot order is the party liable for the cost of holding the ballot.

(3) Subsections (1) and (2) have effect subject to subsection 170NBDA(3).

170NBDA Commonwealth has partial liability for cost of ballot

(1) If:

(a) the liable party notifies the Industrial Registrar of the cost incurred by the relevant union in relation to the holding of the ballot; and

(b) does so within a reasonable time after the completion of the ballot;

the Industrial Registrar must determine how much (if any) of that cost was reasonably and genuinely incurred by the relevant union in holding the ballot. The amount determined by the Industrial Registrar is the reasonable ballot cost.

(2) The Commonwealth is liable to pay to the liable party 80% of the reasonable ballot cost.

(3) If the Commonwealth becomes liable to pay to the liable party 80% of the reasonable ballot cost, the liable party for the ballot order is:

(a) to the extent of the Commonwealth's liability, discharged from liability under section 170NBD for the cost of holding the ballot; and

(b) liable to pay 20% of the reasonable ballot cost 30 days after the Industrial Registrar's determination.

(4) The regulations may prescribe matters to be taken into account by the Industrial Registrar in determining whether costs are reasonable and genuinely incurred.

(8) Schedule 1, item 30, page 37 (line 15) to page 38 (line 12), omit the item, substitute:

30 After section 307

Insert:

307A False statement in application for protected action ballot order

(1) A person must not, in an application for a ballot order under Division 8A of Part VIB:

(a) make a statement; and

(b) do so reckless as to whether the statement is false or misleading in a material particular.

Penalty: 10 penalty units.

(2) For the purposes of an offence against subsection (1), strict liability applies to the physical element, that the application is made under Division 8A of Part VIB.

Note: For strict liability, see section 6.1 of Criminal Code.

307B False statement in joint application for protected action ballot order

(1) A person must not, in an application for a ballot order under Division 8A of Part VIB:

(a) join with other persons in making a statement; and

(b) do so reckless as to whether the statement is false or misleading in a material particular.

Penalty: 10 penalty units.

(2) For the purposes of an offence against subsection (1), strict liability applies to the physical element, that the application is made under Division 8A of Part VIB.

Note: For strict liability, see section 6.1 of Criminal Code.

The Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2002 has at its heart the requirement for the conduct of a secret ballot among employees as a prerequisite for taking legal protected action during enterprise bargaining. Similar provisions were included in the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999 and again in the Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2000. The provisions in the bill are additional to those that already exist in the Workplace Relations Act.

One of the assumptions that lie behind this approach is that there is intimidation present and that secret ballots would prevent intimidation. I say that it is one of the assumptions—not necessarily held by those who are close to this issue—because yesterday Senator Macdonald, as duty minister on behalf of the coalition, made some remarks and interjections which indicated that he had that view. At the hearings into the bill, which was one of five bills considered by the Senate Employment, Workplace Relations and Education Legislation Committee in May 2002, clearly some witnesses believed that coercion of at least some employees occurs, or that some employees perceive that they are under pressure to vote in a certain way in the event of an attendance vote on industrial action. Frankly, that is possible. If, in this chamber, everybody were allowed a secret vote on every single bill, you would probably find the outcomes a little different from what they are as a result of party discipline and pressure. But that is not the same as intimidation; that is what might be referred to as peer pressure. There is no indication, no evidence, that intimidation is usual or common in industrial matters. Obviously, if at all possible such coercion should be prevented where it exists, but the department advised the committee that this was not the prime purpose of the bill, and that is the important thing. In his evidence, Mr Smythe said:

I do not think the legislation is predicated on the premise that there is intimidation and therefore there must be secret ballots. As you have acknowledged, it is not impossible that there may be intimidation, but I think the simple proposition is, as Mr Anderson said—

Mr Anderson being another member of the department—

that the principle of democracy can be most readily guaranteed by a secret ballot process.

That is something that we all except. I do not know anybody who does not accept that proposition: a secret ballot can indeed most readily guarantee the principle of democracy. The bill is directed at secret ballots prior to protected action being taken, with consequent disputation occurring. As outlined earlier in my remarks on the Workplace Relations Amendment (Genuine Bargaining) Bill 2002, disputation may well be more common as a result of unprotected action. It is not something that is commonly recognised in the broader business community or indeed in the community at large. It is unprotected action which often results in damaging strikes and industrial action, not protected action. This bill attends to protected action.

In evidence to the committee, the department indicated that it had no data to separate days lost in protected action disputation from days lost in unprotected action disputation, although it was negotiating with the ABS to ascertain such data in the future. If the purpose of the bill is to encourage employees to take their time and be far more considered when calling strikes and taking other actions, the bill will be ineffectual if it is unprotected action strikes that occur.

At present, prestrike ballots are available to employees under section 136 of the act, and the commission can order secret ballots at its discretion under section 135. The mechanisms for such ballots are deliberately not prescribed in the act in detail except that they must be conducted in accordance with directions given by the commission. This discretion may be useful to retain. Certainly the provisions of sections 135 and 136 have been seldom used, perhaps suggesting that there may be little real demand from employers or employees for further access to secret ballots or perhaps because a strike or industrial action is more often taken in unprotected circumstances, so the employees would not be approaching the Industrial Relations Commission anyway. In relation to the provisions under sections 135 and 136, my statistics indicate that, of 30,000-plus applications for a bargaining period that have been made since 1997, only 12 orders for a secret ballot have been made, so there really is not a great demand.

There does not appear to be any criticism of the current methods that the Industrial Relations Commission uses to implement the conduct of a ballot in accordance with directions given by the commission. Their approach gives the Industrial Relations Commission powers to flexibly determine the mechanisms for the conduct of a ballot, rather than prescribe them step by step. The bill, in contrast, seeks to impose a fairly fixed approach in all examples of protected action, creating new administrative complexity, cost and, no doubt, legal argument. While exaggerated by some, potential for delays in the implementation exists. Unions have argued that the bill's real intent is to frustrate the timely exercise of employee democracy and to work to reduce, through the burden of administrative complexity, the level of industrial action taken around enterprise agreements. To that, the coalition argues that there are secret ballot provisions in the United Kingdom and other OECD countries that work perfectly well, and that is a fair point to make.

If we recognise that longstanding coalition policy is to require secret ballots for industrial action, particularly for strike action, and if we accept that that is an ideological approach as well as what they regard as a practical approach, we then have to look at the efficacy of the bill. The technical requirements are overly complex, prescriptive and onerous. The Democrats would oppose this bill in the event of our amendments not being successful.

So what do our amendments try to do? One of the things that I like about hearings is that you discover things you did not know. The first thing I discovered that I did not know was that the department itself did not know how many days had been lost in unprotected action. You cannot distinguish between days lost in protected industrial action and days lost in unprotected industrial action, which I hope you will remedy shortly. The second thing I discovered—and I really think I should have known better, having had this exacting job for over 6½ years—is that most unions, it turns out, do not have secret ballot provisions in their rules—quite an amazing outcome. So we have a situation currently where an employee or an employer can go to the commission and say, `I want a secret ballot,' and where the commission can order secret ballots; but we do not have a situation where a union member can say to their union, `I want a secret ballot.' I pursued this issue at the hearing, and I established that the union members concerned have absolutely no objection to the provision of secret ballot rules. I then pursued that further with the ACTU, and they too have no objection to it.

So what have I sought to introduce here? I have sought to introduce two simple propositions. The first is that unions must have rules for secret ballots. If they do not have rules for secret ballots, the commission will develop model rules and provide them. The second proposition I have sought to put forward is that the commission may have circumstances in which it can pursue a ballot order. I will come to that, but let me deal with the union rules first.

First, it is not my intention, through this legislation to dictate at all what those rules should be. Secondly, secret ballots for a union would be initiated on an entirely voluntary basis. In other words, a union member would be able to put up their hand and say, `I would like a secret ballot conducted in this circumstance.' The union would look at their rules and say, `We need 10 members to agree with you; where are the other nine?' The other nine would say, `We are here.' A ballot would occur according to the union rules. It is entirely voluntary; it is entirely at their request. I think that is a democratic provision which should be available to union members, and it is not. This law would simply say, `You have to have rules of that sort; develop them on your basis and in the way that suits your union.' That is one side of things. If people want me to explore the detail within the amendments, I can.

On page 4, proposed section 170NBBE states:

The Commission may grant an application for a ballot order, but must not grant the application unless it is satisfied that:

(a) any court, judicial inquiry or Royal Commission findings justify such an order; or

(b) any other particular and significant circumstances exist that mean such an order is appropriate.

What happens now is that the commission can be approached for a specific circumstance. What the government wants is to apply secret ballots across every circumstance, in every industry and on every occasion. That does not make sense; you should target it. If you have a situation where a particular union or a particular employer is bloody-minded and causing harm and problems which might mean that members involved in industrial action would be best served by the protection a secret ballot would provide, they should have that available. Firstly, this proposed section is a general, voluntary and open provision; and, secondly, it gives the commission further grounds on which they could order a so-called secret ballot. That is basically the framework.

In closing this debate—we are looking at amendments (1), (4), (6) and (8) together—I want to apologise to participants. The amendments were difficult to get together and I could not circulate them as early as I had wished, but I had signalled my intentions both in my second reading amendment and in my discussions with a number of people.