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Workplace Relations Amendment (Better Bargaining) Bill 2005

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2004-2005

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

Workplace Relations Amendment (Better Bargaining) Bill 2005

 

 

(1)     Clause 2, page 2 (table item 2), omit the table item, substitute:

2.  Schedules 1 to 5

The 28th day after the day on which this Act receives the Royal Assent.

 

[pattern bargaining]

(2)     Schedule 2, item 2, page 7 (lines 12 to 14), omit the item, substitute:

2  Application of amendment

The amendment made by item 1 applies in relation to a bargaining period even if the bargaining period began before the commencement of this Schedule.

[suspension of bargaining periods]

(3)     Schedule 3, item 2, page 8 (lines 11 to 13), omit the item, substitute:

2  Application of amendment

The amendment made by item 1 applies in relation to a bargaining period even if the bargaining period began before the commencement of this Schedule.

[protected action and related corporations]

(4)     Page 10 (after line 8), at the end of the Bill, add:

Schedule 5 Pattern bargaining

   

Workplace Relations Act 1996

1  At the end of Division 1 of Part VIB

Add:

170LGA   Pattern bargaining

What is pattern bargaining?

             (1)  For the purposes of this Part, a course of conduct by a person is pattern bargaining if:

                     (a)  the person is a negotiating party to 2 or more proposed agreements; and

                     (b)  the course of conduct involves seeking common wages or conditions of employment for 2 or more of those proposed agreements; and

                     (c)  the course of conduct extends beyond a single business.

Exception: wages or conditions determined as national standards

             (2)  The course of conduct is not pattern bargaining to the extent that the negotiating party is seeking, for 2 or more of the proposed agreements, wages or conditions of employment determined by the Full Bench in a decision establishing national standards.

Exception: genuinely trying to reach an agreement for a single business or part of a single business

             (3)  The course of conduct, to the extent that it relates to a particular single business or part of a single business, is not pattern bargaining if the negotiating party is genuinely trying to reach an agreement for the business or part.

             (4)  For the purposes of subsection (3), factors relevant to working out whether the negotiating party is genuinely trying to reach an agreement for a single business or part of a single business include (but are not limited to) the following:

                     (a)  demonstrating a preparedness to negotiate an agreement which takes into account the individual circumstances of the business or part;

                     (b)  demonstrating a preparedness to negotiate an agreement with an expiry date which takes into account the individual circumstances of the business or part;

                     (c)  negotiating in a manner consistent with wages and conditions of employment being determined as far as possible by agreement between the employer and its employees at the level of the single business or part;

                     (d)  agreeing to meet face-to-face at reasonable times proposed by another negotiating party;

                     (e)  considering and responding to proposals made by another negotiating party within a reasonable time;

                      (f)  not capriciously adding or withdrawing items for bargaining.

             (5)  If a person seeks to rely on subsection (3) in any proceedings in the Commission, or in any civil proceedings in a court, the person has the burden of proving that subsection (3) applies.

             (6)  This section does not affect, and is not affected by, the meaning of the term “genuinely trying to reach an agreement”, or any variant of the term, as used elsewhere in this Act.

Definitions

             (7)  In this section:

negotiating party , to a proposed agreement, has the meaning given by section 170MI.

proposed agreement means a proposed agreement under Division 2 or 3.

2  Subsection 170MI(1) (note)

After “170MW(9A) and (10)”, insert “, 170MWAA(6) and (7)”.

3  After section 170MM

Insert:

170MMA   Industrial action must not be in support of pattern bargaining claims

                   Engaging in or organising industrial action is not protected action if:

                     (a)  the industrial action is for the purpose of supporting or advancing claims made by a negotiating party to a proposed agreement; and

                     (b)  the party is engaged in pattern bargaining in relation to the proposed agreement.

4  After section 170MW

Insert:

170MWAA   Suspension and termination of bargaining periods for pattern bargaining

Suspension or termination required for pattern bargaining

             (1)  The Commission must, by order, suspenda bargaining period for a period specified in the order, or terminate a bargaining period, if:

                     (a)  a negotiating party or a prescribed person applies to the Commission for an order under this section; and

                     (b)  another negotiating party is engaged in pattern bargaining in relation to the proposed agreement.

Negotiating parties must be given the opportunity to be heard

             (2)  The Commission must not make an order under this section unless it has given the negotiating parties the opportunity to be heard.

Commission may suspend or terminate as it considers appropriate

             (3)  If the Commission is required by subsection (1) to make an order under this section, then regardless of the order applied for:

                     (a)  the order may be for the suspension or termination of the bargaining period, as the Commission considers appropriate; and

                     (b)  any period of suspension specified in the order must be such a period as the Commission considers appropriate.

Application does not have to identify bargaining periods

             (4)  An application may be made to the Commission for an order under this section for the suspension or termination of whatever bargaining periods apply to:

                     (a)  a specified business, or any part of that business; or

                     (b)  a specified part of a specified business;

without specifically identifying the bargaining periods. The application has effect as if it were an application for the suspension or termination of the bargaining period, or each of the bargaining periods, that applies to the specified business (or any part of it), or to the specified part of the business, as the case requires.

Note:          The other requirements of this section must still be complied with in relation to the application.

             (5)  If subsection (4) applies to an application, the Commission must satisfy itself as to which bargaining periods the application has effect in relation to.

Restrictions on initiating new bargaining periods

             (6)  An order under this section suspending a bargaining period may, if the Commission considers it to be appropriate, contain a declaration that, during some or all of the period while the suspension has effect, a specified negotiating party or employee of the employer:

                     (a)  is not allowed to initiate a new bargaining period in relation to specified matters that are dealt with by the proposed agreement; or

                     (b)  may initiate such a bargaining period only on conditions specified in the declaration.

             (7)  An order under this section terminating a bargaining period may, if the Commission considers it to be appropriate, contain a declaration that, during a specified period beginning at the time of the termination, a specified negotiating party or employee of the employer:

                     (a)  is not allowed to initiate a new bargaining period in relation to specified matters that are dealt with by the proposed agreement; or

                     (b)  may initiate such a bargaining period only on conditions specified in the declaration.

Action not protected while bargaining period suspended

             (8)  Anything done by a negotiating party or any other person in respect of a proposed agreement is not protected action if it is done at a time when the bargaining period is suspended.

5  Division 10 of Part VIB (heading)

Repeal the heading, substitute:

Division 10 Contravention of penalty provisions

6  After Division 10 of Part VIB

Insert:

Division 10AA Injunctions in relation to pattern bargaining

170NHAA   Injunction against industrial action if pattern bargaining engaged in

             (1)  An appropriate court may grant an injunction in such terms as the court considers appropriate if, on application by any person, the court is satisfied that:

                     (a)  industrial action in relation to a proposed agreement is being engaged in, or is threatened, impending or probable; and

                     (b)  the industrial action is or would be for the purpose of supporting or advancing claims made by a negotiating party to the proposed agreement; and

                     (c)  the party is engaged in pattern bargaining in relation to the proposed agreement.

             (2)  In this section:

appropriate court means the Federal Court of Australia, the Federal Magistrates Court, a Supreme Court of a State or Territory or a District Court, or County Court, of a State.

negotiating party , to a proposed agreement, has the meaning given by section 170MI.

proposed agreement means a proposed agreement under Division 2 or 3.

7  Application of amendments

(1)       In this item:

pattern bargaining means a course of conduct that is pattern bargaining as defined in section 170LGA of the Workplace Relations Act 1996 as amended by this Schedule.

(2)       The amendment made by item 3 applies in relation to industrial action that is engaged in or organised after the commencement of this Schedule, and in relation to pattern bargaining that is engaged in after that commencement, even if either or both of the following apply:

                     (a)  the industrial action began to be engaged in or organised before that commencement;

                     (b)  the pattern bargaining began to be engaged in before that commencement.

(3)       The amendment made by item 4 applies in relation to pattern bargaining that is engaged in after the commencement of this Schedule, even if either or both of the following apply:

                     (a)  the pattern bargaining began to be engaged in before that commencement;

                     (b)  any relevant bargaining period began before that commencement.

(4)       The amendment made by item 6 applies in relation to industrial action that is engaged in, or that is threatened, impending or probable, after the commencement of this Schedule, and in relation to pattern bargaining that is engaged in after that commencement, even if either or both of the following apply:

                     (a)  the industrial action began to be engaged in, or first became threatened, impending or probable, before that commencement;

                     (b)  the pattern bargaining began to be engaged in before that commencement.

[pattern bargaining]