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Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Bill 2003

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WORKPLACE RELATIONS AMENDMENT (PROHIBITION OF COMPULSORY UNION FEES) BILL 2002 [No. 2]

 

AMENDMENTS MADE BY THE SENATE

 

HOUSE OF REPRESENTATIVES STATEMENT OF REASONS FOR DISAGREEMENT WITH CERTAIN PROPOSED AMENDMENTS

 

Senate Amendment 1

 

This amendment would allow a majority vote to impose a compulsory bargaining services fee on all employees (as long as certain specified criteria were met), irrespective of whether individual employees had sought the bargaining services to which the fee relates.  The House of Representatives does not accept that an employee’s right to freedom of association and freedom of choice should be contravened in this manner.  The Workplace Relations Act 1996 already ensures that an agreement cannot override certain individual rights by prohibiting clauses that are discriminatory or which breach Part XA of the Act (the freedom of association provisions).  The Bill seeks to extend this principle.  Senate Amendment 1 is contrary to this approach.

 

Accordingly, the House of Representatives opposes this amendment.

 

Senate Amendments 3 and 5

 

Senate amendment number 3 would remove item 11 from the Bill.  Item 11 ensures that a provision of a certified agreement is void to the extent that it requires payment of a bargaining services fee.  The deletion of item 11 from the Bill will prolong the continuing uncertainty as to whether or not bargaining services fees are enforceable.  Making it clear that such clauses are unenforceable is a key element of the Bill.  Accordingly, the House of Representatives opposes this amendment.  As amendment number 5 is consequential upon amendment number 3, the House of Representatives also opposes this amendment.

 

Senate Amendments 4 and 6

 

The effect of amendment number 4 would be to delete item 12 from the Bill.  Item 12 amends the definition of ‘objectionable provision’ in section 298Z of the Workplace Relations Act 1996 to include a clause that imposes a bargaining services fee. 

 

This is a key element of the Bill as the Act provides that the Commission cannot certify an agreement containing an objectionable provision and is empowered to remove such clauses from existing agreements.  

 

Section 298Z of the Workplace Relations Act currently provides that a provision may be removed from a certified agreement if it requires or permits any conduct that would contravene the freedom of association provisions of the Workplace Relations Act.  Despite the Australian Industrial Relations Commission finding that bargaining services fee clauses have a coercive intent, in practice it has been found that the requirement for prohibited conduct has imposed a technical hurdle that is hard to overcome. 

 

The House of Representatives does not accept Senate Amendment 4.  Amendment number 6 is consequential upon amendment number 4 and the House of Representatives also opposes this amendment.