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Workplace Relations Amendment Bill 2000

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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

WORKPLACE RELATIONS AMENDMENT BILL 2000

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment, Workplace Relations

and Small Business, the Honourable Peter Reith MP)



WORKPLACE RELATIONS AMENDMENT BILL 2000

 

 

OUTLINE

 

This Act will amend the Workplace Relations Act 1996 (the WR Act) to:

 

·          define ‘pattern bargaining’ (that is, bargaining where unions seek common terms and conditions across a number of employers, regardless of the circumstances of the individual businesses concerned), and provide defined consequences where pattern bargaining occurs (in particular, the termination of the relevant bargaining period, so that industrial action is no longer protected);

 

·          enhance the effectiveness of the Australian Industrial Relations Commission’s (the Commission’s) power to issue orders that unlawful industrial action cease or not occur;

 

·          provide access to cooling off periods in respect of protected industrial action; and

 

·          Protect rights to pursue common law remedies in response to unlawful industrial action in Supreme Courts without additional litigation in the form of anti suit injunctions being sought from or issued by the Federal Court

 

The Act will also make other minor or technical amendments.

 

FINANCIAL IMPACT STATEMENT

 

The measures in this Act will have no significant impact on Commonwealth expenditure.

 

 



 

NOTES ON CLAUSES

 

Clause 1 - Short title

 

1.         This is a formal provision specifying the short title of the Act.

 

Clause 2 - Commencement

 

2.         This clause specifies when the various provisions of the Act are proposed to commence.

 

3.         Subclause 2(1) provides that clauses 1, 2 and 3 commence on the day on which the Act receives the Royal Assent.

 

4.         Subclause 2(2) provides that, subject to subclause (3), Schedule 1 commences on a day to be fixed by Proclamation.

 

5.         Subclause 2(3) has the effect that if Schedule 1 does not commence under subclause (2) within 6 months of the Act receiving the Royal Assent, it will commence on the day following the end of that 6 month period.

 

Clause 3 - Schedule(s)

 

6.         Clause 3 provides that an Act specified in a Schedule is amended or repealed as set out in the Schedule, and that any other item in a Schedule operates according to its terms.



SCHEDULE 1 - PATTERN BARGAINING AND RELATED CONDUCT

 

 

Part 1 - Amendments

 

Workplace Relations Act 1996

 

Item 1 - Subsection 4(1)

 

1.         This item proposes to insert a definition of old IR agreement .  The concept of an old IR agreement (which is defined to mean an agreement certified or approved under various now repealed provisions) is relevant in the context of the power of the Commission to make orders to stop or prevent industrial action (see the amendment proposed by item 3).

 

Item 2 - Subsection 127(1)

 

2.         Subsection 127(1) empowers the Commission to make orders to stop or prevent industrial action (that is either happening, threatened, impending or probable), in relation to an industrial dispute, the negotiation or proposed negotiation of a certified agreement, or work that is regulated by an award or certified agreement.  Items 2 to 5 enhance the effectiveness of this provision.

 

3.         The amendment proposed by item 2 would clarify that the power to make orders applies only in relation to industrial action that is not, or would not be, protected action.  (Section 170MT already provides that an order made under section 127 does not apply to protected action.)

 

Item 3 - Paragraph 127(1)(c)

 

4.         This item proposes an amendment of subsection (1) to ensure that the power of the Commission to make orders to stop or prevent industrial action extends not only to industrial action in relation to work regulated by an award or an agreement under the current provisions of the Act, but also to industrial action in relation to work regulated by an old IR agreement.  (A definition of ‘old IR agreement’ is proposed to be inserted by item 1.)

 

Item 4 - Subsection 127(1)

 

5.         The amendment proposed by item 5 would require the Commission to make an order,  whenever the prerequisites for doing so exist.

 

Item 5 - Subsection 127(3)

 

6.         This item proposes the repeal of the current subsection 127(3), which requires the Commission to hear and determine an application for a section 127 order as quickly as practicable, and the substitution of new provisions, which would require an application to be dealt with within 48 hours where practicable, and would also address the situation where making an order within this timeframe is not practicable, as follows.

 

7.         Under new subsection (3) the Commission would be required, as far as practicable, to hear and determine an application for an order under section 127 within 48 hours of the application being made.  The provision makes clear that the issue of whether the industrial action is or is not protected action is part of the question to be determined within the 48 hour period.

 

8.         Proposed subsection (3A) would apply where the Commission is unable to determine an application within 48 hours.  In such circumstances, the Commission is to be required to make, within the 48 hour period, an interim order to stop or prevent the industrial action at issue, which would apply until the application is determined.  The Commission will not, however, be required to make such an order where it is satisfied that to do so would be contrary to the public interest.

 

Item 6 - After section 170LG

 

9.         This item would insert a new section 170LGA to define ‘pattern bargaining’.  This definition is relevant to new section 170MP, proposed to be inserted by item 10, and new section 170MWB, proposed to be inserted by item 13.  The purpose of these amendments is to ensure that protected industrial action is limited to the pursuit of enterprise-specific outcomes, and is not generally available as a means of seeking common outcomes across a number of employers or across an industry.

 

New section 170LGA - Meaning of pattern bargaining

 

10.       Proposed subsection (1) would mean that defines pattern bargaining is as a course of conduct or bargaining, or the making of claims, being a campaign, or part of a campaign , which that involves seeking common outcomes in respect of wages wages and/or other  employment entitlements . , where T he Commission must be is satisfied that two elements exist:

 

·          the conduct, bargaining, or making of claims is part of a campaign that extends beyond a single business; and

 

·          the conduct, bargaining, or making of claims is contrary to the objective of encouraging agreements to be genuinely negotiated between parties at the workplace or enterprise level.

 

11.       This definition has effect subject to proposed subsections (2) to (5).

 

12.       Proposed subsection (2) relates to the second element of the definition in subsection (1).  It would provide that conduct, bargaining or making of claims which would amount to the first element, and is by an organisation of employees that is a negotiating party to a proposed agreement, is taken to be contrary to the relevant objective, unless the Commission is satisfied that all of the common entitlements being sought are of such a nature that they are not capable of being pursued at the single business level.   The emphasis in this provision is on the way in which claims are pursued, rather than the merits of the entitlements sought.  In determining whether or not it is satisfied that the entitlements being sought are of such a nature that they are not capable of being pursued at the single business level, the Commission will not be considering the merits of those entitlements.

 

13.       Three notes are proposed after subsection (2).  These give examples of types of claims that might be pursued as part of a common claim extending beyond a single business, but will not be pattern bargaining if the Commission is satisfied that the entitlements being sought are of such a nature that they are not capable of being pursued at the single business level.

 

14.       Proposed subsections (3) to (5) make additional provision in relation to the issue whether entitlements are or are not capable of being pursued at the single business level.

 

15.       Proposed subsection (3) would express that the Commission cannot be satisfied that entitlements are not capable of being pursued at the single business level, merely because the entitlements are being sought as common entitlements extending beyond a single business.  For example, a desire on the part of a negotiating party that the same wage should apply to all businesses in an industry will not be enough to establish that wage entitlements are not capable of being pursued at the single business level.   An issue not capable of being pursued at the single business level would need to have an intrinsic characteristic that makes it incapable or inappropriate to be pursued at a single business level. The mere convenience or desire of a party to negotiate issues not of that character on a multi employer or industry wide basis would not suffice.

 

16.       Proposed subsection (4) would provide that the Commission is to have particular regard to the views of the employer concerned, in determining whether the entitlements sought by an organisation are of such a nature that they are not capable of being pursued at the single business level.

 

17.       Proposed subsection (5) would make clear that an organisation of employees is not taken to have engaged in pattern bargaining merely because the organisation is seeking the inclusion in a proposed agreement of terms and conditions which give effect to the terms of an order of a Full Bench of the Commission that established national standards.

 

Item 7 - Subsection 170MI(1) (note)

 

18.       The existing note to subsection 170MI(1) explains that the ability to initiate a bargaining period set out in subsection 170MI(1) is subject to other provisions of the WR Act (which allow the Commission, on terminating a bargaining period, to impose a period within which a fresh bargaining period may not be initiated).  This item would add proposed new subsection 170MWB(3), which is to be inserted by item 13 below, to the list of relevant provisions. 

 

Item 8 - Paragraph 170ML(2)(b)

 

19.       Subsection 170ML(2) presently sets out who may take protected action in pursuit of a proposed certified agreement.

 

20.       This item would close a loophole in the legislation, which currently allows protected industrial action to be taken by any employee of an employer that is negotiating an agreement with a union where the employee is a member of that union, regardless of whether the employee would be subject to the proposed agreement.  The proposed amendment would ensure that protected action during negotiations for a certified agreement is only available to members of organisation of employees whose employment is to be covered by the proposed certified agreement.

 

Item 9 - Section 170MM

 

21.       This item would repeal and replace section 170MM.  The existing section 170MM (Industrial action must not involve secondary boycott) provides that engaging in and organising industrial action is not protected action if persons other than ‘protected persons’ are involved.  New section 170MM defines ‘protected person’ more closely, again so as only to cover those employees of the employer in question whose employment is to be covered by the proposed agreement. 

 

New section 170MM - Industrial action must not involve persons who are not protected for that industrial action

 

22.       The provisions of existing section 170MM are proposed to be reintroduced, but in a way that more clearly links protection for industrial action to a particular proposed agreement and the particular employees whose employment will be subject to the proposed agreement. 

 

23.       New subsections 170MM(1) and (2) would have the effect that industrial action will lose its protected status if it is organised or engaged in in concert with any person or organisation of employees that is not protected in respect of the specific industrial action being taken (ie action solely in pursuit of a specific agreement by those who it is proposed will be subject to that agreement).  New subsection 170MM(3) would define ‘protected person’ for industrial action in relation to a proposed agreement to mean an organisation of employees that is a negotiating party, a member of the organisation whose employment will be subject to the agreement, an officer or employee of the organisation; or, an employee who is a negotiating party.

 

Item 10 - After subsection 170MP(1)

 

24.       Subsection 170MP(1) currently provides that engaging in industrial action by a person who is a member of an organisation of employees is not protected action unless the organisation has previously genuinely tried to reach agreement with the relevant employer (and complied with any Commission order in relation to the relevant negotiations).  This item would insert a new section 170MP(1A), which would provide that an organisation is taken not to have genuinely tried to reach an agreement if it was engaged in pattern bargaining (as defined by new section 170LGA, to be inserted by item 6).

 

Item 11 - After section 170MT

 

25.       This item would insert a new section 170MTA.

 

New section 170MTA - Jurisdiction of Court to determine if action is protected action

 

26.       New section 170MTA would expressly confer jurisdiction on the Federal Court to determine whether industrial action is protected, and, if so, whether the industrial action is or is not covered by the immunity provisions set out in subsections 170MT(1) and (2).  The Federal Court already has such jurisdiction; proposed subsection (1) would clarify who may apply for such a determination.

 

27.       Proposed subsection (2) would prohibit the Federal Court from issuing anti-suit injunctions in respect of proceedings being brought or pursued in respect of industrial action under:

 

·          section 127;

 

·          any of sections 170MW to 170MWB; or

 

·          any law, whether written or unwritten, in force in a State or Territory.

 

28.       Proposed subsection (3) is a technical provision that would ensure that the conferral of express powers on the Federal Court does not impact on its other powers.

 

29.       Proposed subsection (4) would provide that the Federal Court’s jurisdiction in respect of such matters is not exclusive. 

 

Item 12 - After section 170MW

 

30.       This item would insert a new section requiring the Commission, in certain circumstances, to suspend a bargaining period to allow for a period of cooling-off during which negotiating parties could attempt to settle the matters at issue between them without recourse to industrial action.

 

New section 170MWA - Power of Commission to suspend bargaining period to allow for cooling-off

 

31.       Proposed subsection (1) would require the Commission to suspend a bargaining period for a specified period, on application by a negotiating party, if satisfied that the suspension would assist the parties in resolving the issues between them and would not be contrary to the public interest.  Any industrial action taken in relation to a proposed agreement while the bargaining period is suspended would not be protected action (proposed subsection (4)).

 

32.       Under proposed subsection (2), the period for which a bargaining period is suspended is to be a period that the Commission considers appropriate.  This period may be extended on the application of a negotiating party.  In determining whether to extend a period of suspension, the Commission must have regard to the same considerations as apply to determining whether to suspend a bargaining period under proposed subsection (1).

 

33.       Proposed subsection (3) would prevent the Commission from making an order suspending a bargaining period unless the negotiating parties had been given an opportunity to be heard on the matter.

 

Item 13 - After section 170MWA

 

New section 170MWB - Commission must terminate bargaining period if organisation of employees engages in pattern bargaining

 

34.       Proposed new subsection 170MWB would require the Commission to terminate a bargaining period, on application by a negotiating party, if an organisation of employees has engaged or is engaging in pattern bargaining in respect of the proposed agreement.  (A definition of the term ‘pattern bargaining’ is to be inserted as new section 170LGA by item 6.)

 

35.       Proposed subsection (2) would prevent the Commission from making such an order unless the negotiating parties had been given an opportunity to be heard on the matter.

 

36.       Where the Commission terminates a bargaining period under this provision, proposed subsection (3) would authorise the Commission, if it considers it would be in the public interest to do so, to restrict the ability of a negotiating party or an employee of the employer concerned to initiate a new bargaining period.

 

 

Part 2 - Application and transitional provisions

 

37.       Part 2 makes provision for the operation of the amendments made by this Schedule.

 

Item 14 - Application of amendments

 

38.       Subitem (1) proposes that items 2 to 5 (the amendments relating to section 127 of the WR Act) would apply fully to applications made under section 127 on or after the commencement of item 14.  (Item 15 deals with the application of the amendments made by Part 1 to applications under section 127 which had been made before the commencement of item 14.)

 

39.       Subitem (3) proposes that item 13 (which would insert new section 170MWB, enabling the termination of a bargaining period where pattern bargaining has been engaged in) would apply fully in relation to relevant conduct, bargaining or the making of claims, regardless of whether the conduct or bargaining occurred, or the claims were made, before, on or after the commencement of item 14.

 

40.       Subitem (2) proposes that items 8 to 12 (the remaining amendments concerning protected action and pattern bargaining) would apply only to industrial action engaged in on or after the commencement of item 14, but would so apply regardless of whether the relevant bargaining period began before or after that commencement.

 

Item 15 - Transitional - applications to Commission under section 127

 

41.       This item sets out what is proposed to happen where an application for an order under section 127 has been made, but has not been finalised by the Commission, as at the commencement of this item.

 

42.       By subitem (2), where the Commission had started to deal with the application before commencement, the application would continue to be dealt with under the current provisions, notwithstanding the amendments made by Part 1.

 

43.       By subitem (3), where the Commission had not started to deal with the application before commencement of this item, the application would be taken to have been made (and would be required to be dealt with), under the amended provisions.  In such a case, t he 48 hours referred to in section 127 (as proposed to be amended by item 5) would be required to be calculated from the start of the day on which this item commences.