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Workplace Relations Amendment (Transmission of Business) Bill 2004

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2002-2003

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

HOUSE OF REPRESENTATIVES

 

____________________

 

WORKPLACE RELATIONS AMENDMENT (TRANSMISSION OF BUSINESS) BILL 2002

____________________

 

SCHEDULE OF THE AMENDMENTS MADE BY THE SENATE TO WHICH THE HOUSE OF REPRESENTATIVES HAS DISAGREED

 

(1)     Dem (1) [Sheet 3035]

          Schedule 1, item 1, page 3 (lines 5 to 9), omit the item.

(2)     Dem (2) [Sheet 3035]

          Schedule 1, item 2, page 3 (lines 10 to 23), omit the item.

(3)     Opp (2) [Sheet 3028 Revised]

          Schedule 1, item 4, page 3 (lines 26 to 31), omit the item, substitute:

4  At the end of section 149

Add:

          (1B)  For the purpose of determining whether an employer is a successor, assignee or transmittee of the business or part of the business within the meaning of paragraph (1)(d), the following factors must be considered:

                     (a)  whether the activities performed by the employees in the business or part of the business of the employer who was a party to the industrial dispute are substantially the same as the activities performed by the employees in the business or part of the business of the alleged successor, assignee or transmittee; and

                     (b)  whether the relevant business activities of the employer who was a party to the industrial dispute are substantially the same as the relevant business activities of the alleged successor, assignee or transmittee.

The existence of either or both of these factors would tend to indicate that an employer is a successor, assignee or transmittee within the meaning of paragraph (1)(d).

          (1C)  For the purpose of determining whether to make an order that an award does not bind, or binds only to a limited extent, a successor, assignee or transmittee within the meaning of paragraph (1)(d), the Commission must consider:

                     (a)  whether the successor, assignee or transmittee is already bound by another award; and

                     (b)  whether the activities performed by the relevant employees in the business of the successor, assignee or transmittee can be separately identified in the business of the successor; and

                     (c)  whether the relevant employees of the successor, assignee or transmittee would be disadvantaged if such an order were made; and

                     (d)  the effect of such an order on the efficiency and productivity of the business.

(4)     Opp (3) [Sheet 3028 Revised] ( As amended by Govt )

          Schedule 1, page 3 (after line 31), after item 4, insert:

4A  After section 149

Insert:

149A  MUA here to stay—Persons bound by awards—ships

                   If:

                     (a)  a ship is engaged in the coasting trade within the meaning of section 7 of the Navigation Act 1912 ; and

                     (b)  the ship ceases to be engaged in the coasting trade; and

                     (c)  at a later time, the ship operates under a continuing permit issued under section 286 of the Navigation Act 1912 ;

then, from the later time, an award which bound the employer of the seamen employed on the ship when the ship was engaged in the coasting trade binds, in relation to that ship, the employer of the seamen employed on the ship when it is operating under the continuing permit.

(5)     Opp (4) [Sheet 3028 Revised]

          Schedule 1, items 6 to 9, page 4 (lines 1 to 12), omit the items, substitute:

6  At the end of section 170MB

Add:

             (4)  For the purpose of determining whether a new employer is a successor, assignee or transmittee of the whole or part of a business within the meaning of paragraph (1)(c) or (2)(c), the following factors must be considered:

                     (a)  whether the activities performed by the employees in the business or part of the business of the previous employer are substantially the same as the activities performed by the employees in the business or part of the business of the new employer; and

                     (b)  whether the relevant business activities of the previous employer are substantially the same as the relevant business activities of the new employer.

The existence of either or both of these factors would tend to indicate that the new employer is a successor, assignee or transmittee within the meaning of paragraph (1)(c) or (2)(c).

(6)     Dem (4) [Sheet 3035]

          Schedule 1, item 10, page 5 (after line 12), after subsection 170MBA(2), insert:

          (2A)  The Commission shall not make an order under subsection 170MBA(2) unless:

                     (a)  the parties to the certified agreement, including the new employer, agree; or

                     (b)  where the majority of employees who are parties to the agreement do not agree to the variation, the Commission is satisfied that:

                              (i)  that variation does not disadvantage employees in relation to their terms and conditions of employment; or

                             (ii)  the variation is part of a reasonable strategy to deal with a short-term crisis in, and to assist in the revival of, the single business or part.

Note:      See subsection 170LT(4) for an example of a case that is not contrary to the public interest.

          (2B)  In this section, a variation disadvantages employees in relation to their terms and conditions of employment if, on balance, its approval would result in a reduction in the overall terms and conditions of employment of those employees under the existing certified agreement.

Note:      Section 170XA contains the no-disadvantage test.

          (2C)  In making an order under subsection 170MBA(2) the Commission must take into account:

                     (a)  the proposed new terms and conditions that employees would be subject to and the effect of any loss of conditions; and

                     (b)  the length of time remaining on the certified agreement.

(7)     Dem (5) [Sheet 3035]

          Schedule 1, item 10, page 5 (line 22), omit “outgoing”, substitute “incoming”.

(8)     Opp (R5) [Sheet 3028 Revised] ( As amended by Govt )

          Schedule 1, page 8 (after line 9), after item 10, insert:

10A  At the end of Division 6 of Part VIB

Add:

170MBB  MUA here to stay—Successor employers bound—ships

             (1)  This section applies where:

                     (a)  a ship is engaged in the coasting trade within the meaning of section 7 of the Navigation Act 1912 ; and

                     (b)  the ship ceases to be engaged in the coasting trade; and

                     (c)  at a later time, the ship operates under a continuing permit issued under section 286 of the Navigation Act 1912 .

             (2)  If:

                     (a)  the employer of the seamen employed on the ship when the ship was engaged in the coasting trade was bound by a certified agreement when the ship was engaged in the coasting trade; and

                     (b)  the application for certification of the agreement stated that it was made under Division 3;

then, from the later time:

                     (c)  the certified agreement binds, in relation to that ship, the employer of the seamen employed on the ship when it is operating under the continuing permit; and

                     (d)  a reference in this Part to the employer includes a reference to the employer referred to in paragraph (c).

             (3)  If:

                     (a)  the employer of the seamen employed on the ship when the ship was engaged in the coasting trade was bound by a certified agreement when the ship was engaged in the coasting trade; and

                     (b)  the application for certification of the agreement stated that it was made under Division 2;

then, from the later time:

                     (c)  the certified agreement binds, in relation to that ship, the employer of the seamen employed on the ship when it is operating under the continuing permit, if that employer is a constitutional corporation or the Commonwealth; and

                     (d)  a reference in this Part to the employer includes a reference to the employer referred to in paragraph (c).

(9)     Opp (6) [Sheet 3028 Revised]

          Schedule 1, item 11, page 8 (line 10) to page 9 (line 23), omit the item.

 

____________________

 

HOUSE OF REPRESENTATIVES REASONS FOR DISAGREEING TO THE SENATE AMENDMENTS

         

Senate Amendment Numbers (1) and (2)

These amendments respectively delete items 1 and 2 of the Bill.  These items made clear (where there is room for doubt) that people and organisations involved in a transmission of certified agreement matter before the Australian Industrial Relations Commission (AIRC) could appeal the outcome to the Full Bench of the AIRC.

The House of Representatives rejects these amendments, as they may deprive interested persons and organisations of important procedural rights.

Senate Amendment Number (3)

This amendment has two elements.  The first element deletes item 4 (a legislative note that cross-references items 1 and 2 with section 494 of the Workplace Relations Act 1996 ), and substitutes a new item.  The new item 4 inserts a test in section 149 of the Workplace Relations Act to assist the AIRC in identifying whether there has been a transmission of business so as to make an employer bound to an award.  The amended test departs from the test laid down by the High Court of Australia in PP Consultants v Finance Sector Union of Australia (2000) 201 CLR 648 .  The House of Representatives does not accept that there are valid reasons for overturning the High Court’s preferred approach to transmission of business. 

In addition, Senate amendment number (3) requires the AIRC to consider relative disadvantage for employees in the transmitted business for the purposes of making an order under section 149.  The House of Representatives does not accept that such mandatory considerations are needed, and notes that this amendment applies to awards when the Bill is confined to the legal relationship created under certified agreements.

Accordingly, the House of Representatives rejects this amendment.

Senate Amendment Numbers (4) and (8)

Respectively, Senate amendment numbers (4) and (8) insert a new section 149A and section 170MBB into the Workplace Relations Act .  These new sections would make an award binding on an employer who operates a ship that has moved from operating under a coasting trade license to a continuing voyage permit under the Navigation Act 1912 .

The House is of the view that Australia should have an internationally competitive shipping industry that supports Australian trade at home and abroad.  These amendments are contrary to this objective.  The House of Representatives rejects these amendments. 

Senate Amendment Number (5)

This amendment deletes items 6 to 9 of the Bill which make clear that, following a transmission of business, a new employer is bound by a certified agreement ‘subject to any order of the Commission made under subsection 170MBA(2)’.  Instead, the Senate has substituted a test in section 170MB to assist the AIRC in identifying whether there has been a transmission of business so as to make an employer bound to a certified agreement.  The House of Representatives rejects this amendment for the same reasons that it disagrees with Senate amendment number (3).

Senate Amendment Number (6)

This amendment would require the AIRC, where there is no agreement on a draft transmission of business order, to only make such an order if it is satisfied that the affected employees would not be disadvantaged by it.

The House of Representatives believes that this amendment is unworkable in its present form and therefore rejects it. 

 

Senate Amendment Number (7)

This amendment would allow only the incoming employer to make an application for a transmission of business order before the business has transmitted.  The Senate amendment is misconceived.  An incoming employer is not bound by the certified agreement until the business has transmitted, and has no legally enforceable rights in relation to the certified agreement until transmission has occurred.  The House believes that it is common sense for only the employer who is bound by the certified agreement, in possession of the relevant business information concerning the business, and who is contemplating a transmission of business, to have the right to seek an order from the AIRC before the business has transmitted.

The House of Representatives rejects this amendment.

Senate Amendment Number (9)

This amendment would delete item 11, which extends the Bill to Part XV of the Workplace Relations Act (Matters Referred by Victoria).  The effect of the Senate amendment is to deny a limited number of Victorian employers, and their employees, the opportunity of obtaining orders from the AIRC to address anomalies that may arise from the transmission of certified agreements.

The House of Representatives rejects this amendment.

 

 

 

 

                                                                                              I C HARRIS

                                                                      Clerk of the House of Representatives

 

 

House of Representatives

19 August 2003