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Workplace Relations Amendment (Better Bargaining) Bill 2005

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4716

2004-2005

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Workplace Relations Amendment (Better Bargaining) Bill 2005

 

 

 

(Amendments to be moved by Senator Murray on behalf of the Australian Democrats in committee of the whole)

 

(1)     Schedule 1, page 3 (lines 2 to 28), TO BE OPPOSED .

[lockout before expiry of agreements]

(2)     Schedule 2, page 4 (line 2) to page 7 (line 15), TO BE OPPOSED .

[suspension of bargaining periods]

(3)     Schedule 2, page 7 (after line 15), at the end of the Schedule, add:

2A  After subsection 170MW(2)

Insert:

          (2A)  Genuinely trying to reach agreement includes bargaining in good faith.

[genuine bargaining]

(4)     Schedule 2, page 7 (after line 15), art the end of the Schedule, add:

2B  After subsection 170MW(2)

Insert:

          (2B)  In considering whether or not a negotiating party has met or is meeting its obligations to genuinely try to reach an agreement with the other negotiating parties, the Commission must consider whether or not the party has bargained or is bargaining in good faith. Bargaining in good faith includes:

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

                     (b)  attending meetings that the party has agreed to attend;

                     (c)  complying with negotiating procedures agreed to by the parties;

                     (d)  disclosing relevant information, subject to appropriate undertakings as to confidentiality, for the purposes of negotiations;

                     (e)  stating a position on matters at issue, and explaining that position;

                      (f)  considering and responding to proposals made by another negotiating party;

                     (g)  adhering to commitments given to another negotiating party or parties in respect of meetings and responses to matters raised during negotiations;

                     (h)  dedicating sufficient resources and personnel to ensure genuine bargaining;

                      (i)  not capriciously adding or withdrawing items for negotiation;

                      (j)  not refusing or failing to negotiate with one or more of the parties;

                     (k)  in or in connection with the negotiations, not refusing or failing to negotiate with a person who is entitled under this Part to represent an employee, or with a person who is a representative chosen by a negotiating party to represent it in the negotiations;

                      (l)  in or in connection with the negotiations, not bargaining with, attempting to bargain with, or making offers to persons other than another negotiating party, about matters which are the subject of the negotiations;

                    (m)  any other matters which the Commission considers relevant.

[good faith bargaining]

(5)     Schedule 3, page 8 (lines 2 to 14), TO BE OPPOSED .

[protected action and related corporations]

(6)     Schedule 4, page 9 (line 2) to page 10 (line 8), TO BE OPPOSED .

[protected action and involvement of others]

(7)     Schedule 4, page 10 (after line 8), at the end of the Schedule, add:

3  After Division 8 of Part VIB

Insert:

Division 8A—Secret ballots on proposed protected 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 170MO).

170NBB  Definitions

In this Division:

ballot order means an order made under section 170NBI requiring a protected action ballot to be held.

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

negotiating party has the same meaning as 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 ballot means 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 u nion member who is a party to an AWA whose nominal expiry date has not passed.

Subdivision B—Authorising protected action

170NBC  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.

170NBBD  How and when a u nion can 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; or

                             (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; or

                             (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 170MR.

             (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 170NBM.

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

170NBE  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.

170NBF  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.

170NBG  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.

170NBH  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.

170NBI  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

170NBJ  Ballot must be secret

A protected action ballot must be a secret ballot.

170NBK  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 u nion 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.

170NBL  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 170NBM.

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

170NBM  Commission model rules for conduct of secret ballot

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

170NBN  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.

170NBO  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; or

                             (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; or

                             (ii)  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 170MR.

             (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

170NBP  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 170NBF.

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 170NBQ(3).

170NBQ  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 170NBP for the cost of holding the ballot; and

                     (b)  liable to pay 20% of the reasonable ballot cost within 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.

[union secret ballots]

(8)     Schedule 4, page 10 (after line 8), at the end of the Schedule, add:

4  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 recklessly without regard 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 recklessly without regard 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 .

[union secret ballots]

(9)     Schedule 5, page 11 (line 2) to page 16 (line 30), TO BE OPPOSED .

[pattern bargaining]