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Monday, 12 September 2005
Page: 76


Senator COLBECK (Parliamentary Secretary to the Minister for Agriculture, Fisheries and Forestry) (5:09 PM) —I table a revised explanatory memorandum relating to the bill and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

The Workplace Relations (Better Bargaining) Bill 2005 proposes to amend the bargaining provisions of the Workplace Relations Act 1996 (Cth). This bill is consistent with Government policy and reinforces the object of the Workplace Relations Act that the primary focus of negotiations should be at the enterprise level between employers and their employees.

The Government is committed to the measures proposed by this bill to provide a fairer bargaining framework. They are underpinned by good policy and represent worthwhile reforms that will ensure Australia’s economic prosperity. The Government supports collective bargaining at the enterprise level. It is this approach to bargaining that ensures that the needs of employers and their employees are met. The measures in this bill will facilitate workplace bargaining, and they come at a very important time in the bargaining cycle.

The measures in this bill are required to facilitate bargaining at the enterprise level during the next intensive round of negotiations. Between 1 June 2005 and 31 March 2006, 62 per cent of all federal certified agreements will expire, including 84 per cent of agreements in the building and construction industry and 42 per cent of agreements in the manufacturing sector.

The measures proposed by this bill will: provide remedies against pattern bargaining to wind back industry-wide negotiations back to the enterprise level; facilitate enterprise bargaining by ensuring that industrial action is not used inappropriately; and allow for limited ‘cooling off’ during periods of protected industrial action to assist negotiating parties reach agreement, or where industrial action is threatening to cause significant harm to a third party.

No industrial action before expiry of agreement

The parties to a certified agreement should be bound by its terms and conditions - including the dispute settling provision. Under the proposed provisions, parties to a current certified agreement will be required to use their agreed dispute settling procedure to resolve workplace disputes, rather than by resorting to industrial action.

Accordingly, this bill ensures that industrial action taken during the life of a certified agreement is not protected industrial action. Preventing industrial action during the life of a certified agreement is vital to ensure that parties keep to the bargain they have struck, and enjoy the certainty that a certified agreement is meant to provide.

Measures against pattern bargaining

Government policy promotes bargaining directly at the enterprise level to ensure that agreements are tailored to meet individual business needs. However, unions typically engage in pattern bargaining that imposes common outcomes on employers across an industry or part of an industry, with all resulting agreements having identical nominal expiry dates. In pursuing common outcomes, unions organise protected industrial action on an industry-wide basis.

Pattern bargaining is the antithesis of genuine enterprise negotiation. Pattern bargaining takes the negotiation, consultation and decision-making away from the control of the parties at the workplace.

It is predominantly the construction unions, and to a lesser extent, the manufacturing unions, that are driving pattern bargaining.

In many cases, the threat of industrial action is enough to lock employers into inflexible workplace agreements.

Pattern bargaining’s ‘one-size-fits-all’ approach may lead to businesses being required to pay real wage increases without any accompanying increase in productivity. It reduces enterprise negotiation to a mere formality and centralises decision making processes away from the workplace.

Pattern bargaining robs employers and employees of choice in agreement making. The Government believes that Australian employers and employees should have the ultimate choice about their working arrangements - whether that be through Australian Workplace Agreements, or collective agreements that have been genuinely negotiated at the enterprise level, not the industry level.

The unions have exploited a loophole in the legislation that undermines the spirit of the legislation. These proposed provisions will ensure that the spirit of the legislation and the spirit of enterprise negotiation is respected.

The proposed measures are required circumvent pattern bargaining, including any industrial action taken to support pattern bargaining, during the next intensive round of negotiations.

The proposed provisions will strip protected status from industrial action that is taken to support claims by a negotiating party that is engaging in pattern bargaining.

The proposed provisions will also provide additional remedies to counteract pattern bargaining by requiring the Australian Industrial Relations Commission to suspend or terminate a bargaining period if pattern bargaining is occurring in relation to the proposed agreement. An ‘appropriate court’ may also order an injunction to stop or prevent industrial action that is taken to support claims by a negotiating party that is engaging in pattern bargaining.

These proposed provisions will provide benefits to employers and employees alike. The pattern bargaining measures will promote bargaining at the enterprise level, which will enable employees to genuinely bargain about the terms and conditions of employment that affect them. Through this process, employees will gain a greater understanding of the way their workplace operates. Businesses will be more productive and operate more efficiently, because negotiated agreement will be tailored to meet individual business needs.

The Government firmly believes that employers and their employees are the best placed to effectively and efficiently manage their workplaces. These reforms will ultimately return choice of agreement-making options back to employers and their employees at the enterprise level.

Industrial action taken in concert is unprotected

This bill will also clarify that industrial action is unprotected action where it is taken in concert with employees of different employers. This is consistent with Australian Government policy to promote workplace bargaining at the enterprise level.

Protected action and related corporations

Likewise, the bill also provides that two or more related corporations cannot be treated as a single employer for the purpose of identifying certain action as protected action.

Cooling-off periods

In some cases, negotiations for a new certified agreement become heated, protracted and generally lose their focus. Cooling-off periods allow negotiating parties to take a step back from industrial conflict and refocus on the real issues in dispute.

The bill will allow the commission to suspend a bargaining period for a period of cooling off if it would assist the parties in resolving the issues in dispute. Anything done by a negotiating party or any other person during the period of suspension in respect of the proposed agreement would not be protected action.

The duration of a cooling-off period is a matter for the commission’s discretion. The commission would be able to extend the cooling-off period once only, on application of a negotiating party, and after giving the other negotiating parties the opportunity to be heard.

Suspension for third parties

The bill recognises that industrial action may have an unintended detrimental affect on third parties to an industrial dispute. It allows an organisation, person or body directed affected by the industrial action, other than a negotiating party or the minister, to apply to have a bargaining period suspended. Such a suspension may be extended in a similar manner to the extension of cooling-off periods under the bill.

The commission would be required to consider a number of factors to determine whether suspension is appropriate, including whether the action is threatening to cause significant harm to any person other than a negotiating party.

This measure will provide for cooling off to protect third parties from significant harm, while still maintaining the existing rights of employees to take protected industrial action.

Conclusion

The measures in this bill will provide a fairer bargaining framework in time for the next intensive round of negotiations. It will facilitate bargaining at the enterprise level, and ensure that protected industrial action is not used inappropriately. It will also allow for ‘cooling off’ to assist negotiating parties reach agreement, or where industrial action is threatening to cause significant harm to a third party.

Debate (on motion by Senator Colbeck) adjourned.