Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2002

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

2002

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

WORKPLACE RELATIONS AMENDMENT

(SECRET BALLOTS FOR PROTECTED ACTION) BILL 2002

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment and

Workplace Relations, the Honourable Tony Abbott MP)



WORKPLACE RELATIONS AMENDMENT

(SECRET BALLOTS FOR PROTECTED ACTION) BILL 2002

OUTLINE  

This Bill proposes new preconditions for the taking or organising of protected industrial action by employees and organisations of employees.  It is proposed that, in order for industrial action to be protected action under the provisions of the Workplace Relations Act 1996 (the Act), it must be preceded by a secret ballot process that approves the taking of the action.  The process is to be overseen by the Australian Industrial Relations Commission (the Commission).

The new provisions are intended to ensure that protected industrial action is not used as a substitute for genuine discussions during a bargaining period, and to ensure that the final decision to take industrial action is made by the employees directly concerned.

Under the new provisions, a union or employees would be required to apply to the Commission for an order that a ‘protected action ballot’ be held.  The Bill includes proposed amendments and new provisions to ensure that where employees wish to initiate a bargaining period or apply for a protected action ballot order, they may do so through an agent, with their identity protected.

The Commission would not be able to order a ballot unless a bargaining period is in place, and the applicant has been genuinely negotiating to reach an agreement.

The Bill proposes that if a union makes an application for a ballot, only union members whose employment would be covered by the proposed agreement would be entitled to vote in the ballot.  If employees who are seeking a non-union agreement make the application, all employees whose employment would be covered by the proposed agreement would be entitled to vote in a ballot.  In either case, employees who are party to an Australian Workplace Agreement whose nominal expiry date has not passed would not be eligible to vote.  Only those employees eligible to vote could take industrial action.

The new provisions set out proposed procedural requirements for ballots.  Industrial action would be authorised by a ballot if at least 40 per cent of eligible voters participate in the ballot, and if more than 50 per cent of the votes cast are in favour of the proposed industrial action.

Under the existing secret ballot provisions (sections 135-140), the Commission may order secret ballots of union members in relation to industrial disputes and of union members or groups of employees concerning threatened, impending or probable industrial action.  Members of unions may also request the Commission to order a ballot be held in relation to proposed industrial action.  The Bill also proposes consequential changes to the existing secret ballot provisions of the Act. 

FINANCIAL IMPACT STATEMENT 

The requirements for protected action to be preceded by a secret ballot will involve costs to the Commonwealth.  Providing the applicant follows certain steps, the Commonwealth will be directly liable to the service provider for 80 per cent of the reasonable costs of the ballot.  The applicant will be liable for the remaining costs of the ballot.

 



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.  Sections 1 to 3 and anything in the Act not elsewhere covered by the table will commence on the day on which the Act receives the Royal Assent.  The amendments set out in Schedule 1 will commence on a single day to be fixed by proclamation, subject to subsection (3).  The amendments set out in Schedule 2, which are contingent upon amendments proposed by the Workplace Relations Amendment (Genuine Bargaining) Bill 2002, would commence on the later date of the commencement of the amendments made by that Bill or the commencement of Item 24 of Schedule 1 to this Act.

3.                   Subsection (3) has the effect that if the Bill is not proclaimed to commence within six months of the Act receiving Royal Assent, it will commence on the day following that period of six months.

Clause 3 - Schedule(s)

4.                   This clause provides that an Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule operates according to its terms.

 



SCHEDULE 1 - SECRET BALLOTS FOR PROTECTED ACTION

Part 1 - Amendments

Workplace Relations Act 1996  

Item 1 - At the end of section 4 (before the note)

1.                   This item proposes a technical amendment.  The effect of this item is that a reference to the nominal expiry date of an agreement would include a reference to the end of the period of operation of an old IR agreement (an “old IR agreement” is defined in subsection 4(1) of the Act).

Item 2 - Subsection 134(5) (paragraphs (d) and (e) of the definition of prescribed premises

2.                   This item proposes to amend the definition of ‘prescribed premises’ in section 134 of the Act.  The amendment is consequential and would replace a reference to existing section 136 (which is to be largely repealed by item 6), with a reference to proposed Division 8A of Part VIB (to be inserted by item 25), which would contain new provisions relating to protected action ballots. 

Item 3 - Subsection 135(2) 

3.                   This item proposes to repeal existing subsection 135(2), under which the Commission may order a secret ballot of members of an organisation where it appears to the Commission that a ballot may help to stop or prevent industrial action, and substitute a new subsection.  This power will no longer be appropriate following the introduction of requirements for protected action ballots. 

4.                   New subsection 135(2) would prevent the Commission from ordering a secret ballot of members of an organisation under subsection 135(1) where the organisation has initiated a bargaining period under section 170MI for an agreement.  This would ensure that a decision of employees or a union to apply for a protected action ballot could not be pre-empted by the Commission. 

Item 4 - Subsection 135(2B) 

5.                   For the same reasons as outlined in relation to subsection 135(2) [item 3], this item proposes the repeal of existing subsection 135(2B), which allows the Commission to order a secret ballot to determine whether employees support taking industrial action where it appears that industrial action is being taken or is threatened, impending or probable,

Item 5 - Subsection 135(3) 

6.                   This item proposes a consequential amendment to subsection 135(3) to remove the reference to existing subsection 135(2), which would be repealed [item 3 of this Schedule]. 

Item 6 - Subsections 136(1), (2), (3), (4), (5), (6) and (7) 

7.                   This item proposes the repeal of existing subsections 136(1), (2), (3), (4), (5), (6) and (7).  These subsections currently permit members of an organisation, who have been requested or directed by the organisation to engage in industrial action, to apply to the Commission to order a secret ballot to find out whether or not the members support the proposed industrial action.  These provisions would no longer be required, as it is proposed that protected industrial action could not take place before a protected action ballot of members is conducted under proposed Division 8A.  Industrial action taken without the authorisation of such a ballot would not be protected and it would be inappropriate for the Commission to be involved in ordering a ballot in such circumstances; rather the various compliance measures in the Act and elsewhere are available in relation to participants in such action. 

Item 7 - Paragraphs 136(8)(a) and (b) 

8.                   This item proposes to repeal existing paragraphs 136(8)(a) and (b), and substitute new paragraphs.  New paragraph (a) would omit existing references to subsections 135(2) and 136(2), which it is proposed be repealed [see items 3 and 6]. 

9.                   The effect of new paragraph (b) would be to remove the Commission’s power to revoke an order for a secret ballot because industrial action has ceased as the new provisions regulating protected action ballots will make this unnecessary (as it is proposed that protected industrial action could not take place before a protected action ballot is conducted).  The power to revoke the order for a secret ballot because the industrial dispute has been, or is about to be settled, has been retained.  [see subsection 136(8B)] 

Item 8 - Subsections 136(8B), (9) and (10)

Item 9 - Subsection 137(1)

Item 10 -  Subsection 138(1)

Item 11 - Subsection 138(2)

Item 12 - Subsection 138(5)

Item 13 - Subsection 138(6)

Item 14 - Section 139

Item 15 - Section 140 

10.               These items propose the repeal of existing subsections 136(8B), (9) and (10), 138(2) and 138(6), and section 140, and also remove references in subsections 137(1), 138(1), 138(5) and 139 to existing secret ballot provisions which it is proposed be repealed.  The amendments are consequential to the limitations on the Commissions power to order ballots be held proposed in items 3 to 6.

Item 16 - After section 170MJ 

11.               This item proposes to insert two new sections into the Act, as follows. 

New section 170MJA - Initiating party who is employee may appoint agent  

12.               New section 170MJA would provide that an employee or employees who wish to initiate a bargaining period under section 170MI, or who wish to give an employer notice of intention to take industrial action under section 170MO may appoint an agent to initiate the bargaining period or to issue the notice on their behalf.  This will give the employee or employees the option of remaining anonymous to their employer.  This provision is consistent with new subsection 170NBB(4), which would allow an employee or employees to appoint an agent to represent them in relation to applications for a protected action ballot. 

13.               The new section would also specify that where an agent has been appointed to initiate a bargaining period under section 170MI, the written notice that would be required to be given to the Commission under subsection 170MI(2) must include the names of the employee or employees who appointed the agent.

14.               New subsection 170MJA(3) provides that the regulations may make provision in relation to the qualifications and appointment of any agents appointed under this section.

New section 170MJB - Identity of person who has appointed agent not to be disclosed  

15.               New subsection 170MJB(1) would further protect the identity of employees who appoint agents under new section 170MJA by prohibiting the Commission from disclosing information that would identify persons who have appointed an agent.  However, the Commission will be able to disclose information that would identify persons who have appointed an agent if the disclosure is permitted by any Act or by regulations made under an Act, or if the disclosure has been authorised by the person whose identity would otherwise be protected [subsection 170MJB(2)]. 

16.               Under new subsection 170MJB(3), it would be an offence for any person to disclose information that would identify persons who have appointed a bargaining agent under new section 170MJA.  The proposed maximum penalty for this offence is 6 months imprisonment. 

17.               Proposed exceptions to this prohibition on disclosure are: if the disclosure is required or permitted by any Act or by regulations made under an Act, if the disclosure has been authorised by the person whose identity would otherwise be protected, or if the disclosure is by a Registry official or authorised ballot agent (or a person acting on their behalf) in the course of performing their functions or duties [subsection 170MJB(4)]. 

18.               For the purposes of determining the burden of proof in proceedings relating to offences under new subsection 170MJB(3), the exceptions set out in new subsection 170MJB(4) would be part of the description of the offence.  This addresses the requirements of the Criminal Code [subsection 170MJB(5)]. 

19.               New subsection 170MJB(6) provides definitions of the terms “protected information” and “Registry official” for the purposes of new section 170MJB.

Item 17 - At the end of subsection 170ML(7) 

20.               This item proposes to amend existing subsection 170ML(7) by inserting a reference to new Division 8A.  This amendment would ensure that industrial action would only be protected if both the existing provisions in Division 8 and the new provisions regarding protected action ballots in new Division 8A have been complied with.  The requirement for protected action ballots would not apply to industrial action taken in response to a lockout - see new section 170MQ [item 22].

Item 18 - Subsection 170MO(2)

Item 19 - After subsection 170MO(2)

21.               These items relate to new subsection 170NBCI(5) [see item 25], which would allow the Commission, if it is satisfied that there are exceptional circumstances that justify it, to extend the period of written notice required prior to taking protected industrial action following a protected action ballot from the current 3 working days to up to 7 working days when ordering a protected action ballot.

22.               The proposed amendment to subsection 170MO(2) will ensure that the notice requirements in section 170MO reflect the possibility that more than 3 working days’ notice may be required, by providing for the required written notice to be given.  New subsection 170MO(2A) defines required written notice, for the purposes of subsection 170MO(2), as 3 working days written notice or such longer period  ordered by the Commission when issuing a protected action ballot order.  A note would be inserted following subsection 170MO(2A) stating that the maximum number of days the ballot order can specify is provided for by subsection 170NBCI(5).

Item 20 - Subsection 170MO(6) 

23.               This item would repeal the existing subsection 170MO(6), which allows the written notice of industrial action required under subsection 170MO(2) to be given before the commencement of a bargaining period.  As a result of the proposed protected action ballot arrangements, it will no longer be possible for notice of such action to be given until the action had been authorised by a ballot.  The proposed replacement subsection 170MO(6) will provide that notice of proposed action cannot be given until a ballot result has been declared.  Note that new section 170NBB allows a ballot to take place prior to the nominal expiry date of an agreement, but that protected action cannot take place until after this date [see new clause 170NBDD(1)(e)].

24.               A protected action ballot would not be required for an employer to undertake a protected action lockout of employees, nor would a ballot be required for a union and employees to respond to such a lockout.  In  either of these situations, notice by an employer or by a union or employees could be given once the bargaining period has commenced. 

Item 21 - Subsections 170MP(1) and (2)

25.               This item proposes to repeal existing subsections 170MP(1) and (2) and replace them with new provisions which no longer require that industrial action is not protected unless the organisation or employees taking action have genuinely tried to reach agreement.  This requirement will no longer be necessary, as the issue of whether a union or employees proposing to take industrial action have been genuinely trying to reach an agreement will be considered by the Commission when it is determining an application for a protected action ballot under new section 170NBCF [item 25].  New subsections 170MP(1) and (2) retain the existing position that a negotiating party is not engaging in protected industrial action unless they have complied with any order made by the Commission in relation to the negotiations.

26.               Subsection 170MP(3) will continue to ensure that an employer is required to genuinely try and reach agreement before taking protected action. 

Item 22 - Section 170MQ 

27.               This item proposes the repeal existing section 170MQ, and substitution of a new section. 

New section 170MQ - Industrial action must be authorised by ballot  

28.               Existing section 170MQ provides that where the Commission has ordered a protected action ballot under subsections 135(2) or (2B), protected industrial action cannot be taken unless the ballot has been held and the action approved by a majority of votes cast.  This section would no longer be required, as subsections 135(2) and (2B) are to be repealed [see items 3 and 4].

29.               The new section would provide that industrial action taken by an organisation of employees, its members or employees, or by employees who are negotiating parties, would not be protected action unless the action is taken in response to a lockout of employees, or the action has been authorised by a protected action ballot conducted in accordance with new Division 8A [to be inserted by item 25]. 

Item 23 - At the end of section 170MW

30.               This item would insert a new subsection 170MW(11), which would allow the Commission, when suspending a bargaining period, to order, in relation to any outstanding industrial action that could be taken after the suspension had ended (by reason of new section 170MWE - to be inserted by item 24 of this Schedule), that written notice of up to 7 working days be given instead of the usual 3 working days.

Item 24 - Before section 170MX

New section 170MWE - Industrial action without further protected action ballot after end of suspension of bargaining period

31.               This section would regulate how protected action by unions or employees may be recommenced after the suspension of a bargaining period has ended.  The section would only apply in relation to action authorised by a protected action ballot, which either had not commenced or had not ended before the bargaining period was suspended.

32.               The section proposes that a union or person authorised to organise or engage in protected action by a ballot could, following the end of a suspension period, engage in action endorsed by that ballot without the need to hold another protected action ballot.

33.               Protected action that has been authorised by a protected action ballot may commence at any time within the 30 day period following the declaration of the ballot or the nominal expiry date of the existing agreement or agreements (which ever occurs later) [see new section 170NBDD to be inserted by item 25].  This section addresses the situation where the bargaining period is suspended at a time when some or all industrial action authorised by a protected action ballot has not commenced, or is ongoing.  The section would provide that the period of suspension is to be ignored in determining when protected action may be taken (subsection 170MWE(2)).  This provision must be considered in conjunction with new subsection 170MWE(4), which would make it clear that the section only has effect with respect to protected action that occurs following the end of a suspension period is of the same type or duration as that which was authorised by the ballot.  To illustrate how these provisions may operate in practice, two examples are provided following new subsection 170MWE(4)

34.               In addition, parties wishing to recommence action following the end of a period of suspension would be required to give the required written notice of their intention to take action, detailing the nature and intended commencement date, consistent with the requirements of existing subsection 170ML(2) [new subsection 170MWE(3).  The required written notice for the purposes of subsection 170MWE(3) is defined in new subsection 170MWE(3A) as 3 working days’ written notice or, if the Commission has specified a longer period pursuant to new subsection 170MW(11) [see item 23] that longer period.  A note will also be inserted that the maximum number of days the suspension order can specify is set out in subsection 170MW(11).

Item 25 - After Division 8 of Part VIB 

35.               This item proposes to insert a new Division into Part VIB of the Act, relating to secret ballots for protected action, as follows.

New Division 8A - Secret ballots on proposed protected action

New Subdivision A - General

New section 170NBA - Object of Division and overview of Division  

36.               This section would establish the object of the new Division: to provide access to employees to a process of free and democratic secret ballots to determine whether protected industrial action should be taken.  The provisions are designed to be facilitative (ie to provide the means for accessing protected action) not prohibitive (ie to outline the circumstances in which such action is not available).  It is also made clear that a protected action ballot would not be required in the case of action taken in response to a lockout by the employer. 

New section 170NBAA - Definitions  

37.               New section 170NBAA defines the terms used in new Division 8A.  

New Subdivision B - Application for order for protected action ballot to be held

New section 170NBB - Who may apply for a ballot order etc.  

38.               Under new subsection 170NBB(1) an application for a protected action ballot could only be made once a bargaining period has commenced.  However, if there is an existing agreement applying to relevant employees (relevant employee is a defined term - see new section 170NBA) then the application cannot be made more than 30 days before the nominal expiry date of the agreement or, if there is more than one agreement, the last occurring of the nominal expiry dates of those agreements.  This reflects the fact that protected action may not be taken before the nominal expiry date of an agreement and that a secret ballot can only authorise industrial action that commences within a 30 day period from the declaration of the ballot or the nominal expiry date of an existing agreement (which ever is later) [see new subsection 170NBDD].

39.               Who can make the application depends on who initiated the bargaining period under section 170MI.  Under new subsection 170NBB(2), if a union initiated the bargaining period, then that union could apply to the Commission for a ballot order.  If an employee or employees seeking a non-union agreement initiated the bargaining period, then any employee who would be subject to the proposed agreement, or such employees acting jointly, could apply to the Commission for a ballot order. 

40.               To ensure that a sufficient level of employee support exists to justify the holding of a ballot in relation to employees seeking a non-union agreement, subsection 170NBB(3) proposes that an employee or employees acting jointly could not make an application to the Commission for a ballot order unless the application has the support of a prescribed number of employees who would be subject to the proposed agreement.  [The equivalent requirement in the case of ballot applications by a union, is that the union is to be required to provide evidence that the application has been authorised by or through the union’s committee of management (see new section 170NBBB).]

41.               The term ‘prescribed number’ is defined in new section 170NBAA.  The ‘prescribed number’ would vary depending on the size of the workplace.  If there is less than 80 employees who would be subject to the proposed agreement, then at least 4 of the employees would be required to support the ballot application.  If there is between 80 and 5000 employees who would be subject to the proposed agreement, at least 5% of the employees would be required to support the ballot application.  If there is more than 5000 employees who would be subject to the proposed agreement, then at least 250 of the employees would be required to support the ballot application. 

42.               New subsection 170NBB(4) would provide that where an employee or employees have initiated a bargaining period for a non-union agreement and industrial action is proposed, an employee or employees acting jointly may appoint an agent to represent them in making the ballot application and for all purposes connected with the ballot application.  This is intended to enable employees making an application to remain anonymous. 

New section 170NBBA - Contents of application  

43.               This new section proposes mandatory requirements for a ballot application under section 170NBB.  Applications would be required to include the following information:

·          the question or questions to put to the relevant employees in the ballot, including the nature of the proposed industrial action;

·          details of the types of employees who are to be balloted; and

·          any details required by rules of the Commission made for the purpose of this section.  [New subsection 170NBAA(3) provides that the President may make rules about matters to be included in an application and the form in which the application is made.  These rules would be Rules of the Commission, which, by reason of section 48 of the Act, are disallowable instruments for the purposes of the Acts Interpretation Act 1901. ]

44.               New subsection (2) provides that the applicant may, in the application, nominate a person to conduct the ballot [although the question of who is to conduct the ballot is ultimately determined by the Commission - new paragraph 170NBC(1)(e) and section 170NBE].

New section 170NBBB - Material to accompany application  

45.               New section 170NBBB would require the applicant to provide certain material to the Commission with the ballot application, including:

·          a copy of the notice initiating the bargaining period and the particulars accompanying that notice;

·          a declaration by the applicant that the industrial action to which the application relates is not for the purpose of advancing or supporting claims to include an objectionable provision (as defined in subsection 298Z(5) of the Act);

·          if the applicant is an organisation of employees, a written notice showing that the application has been duly authorised in accordance with the organisation’s rules; and

  • if the applicant is represented by an agent, a document containing the name of the employee applicant or applicants. 

46.               Under new subsection 170NBBB(6), it will be an offence to make a statement in the declaration required by new section 170NBBB while reckless as to whether the statement is false or misleading.  The proposed maximum penalty for an offence against subsection 170NBBB(6) is 20 penalty units. 

New section 170NBBC - Notice of application  

47.               This new section would require the applicant to give a copy of the application to the relevant employer and any person nominated in the application to conduct the ballot within 24 hours of the application being lodged with the Commission.  However, the applicant would not be required to give these parties copies of the supporting material that must be given to the Commission with the application under new section 170NBBB, such as the document containing the names of applicant employees where the applicants are represented by an agent. 

New section 170NBBD - Joint applications  

48.               This section proposes that where an employee seeking a non-union agreement initiated a bargaining period for the proposed agreement, two or more employees who would be subject to the proposed agreement could make a ballot application jointly [subsection 170NBBD(1)]. 

49.               If a joint application was made, another employee could, with the consent of the other applicants, add their name to the application, and an applicant could withdraw their name from the application.  Either adding or withdrawing names may be done at any time before the application is determined [subsections 170NBBD(2) and (3)].

50.               New subsection 170NBBD(4) would allow the President of the Commission to establish rules regarding how the provisions of the Act relating to ballot orders apply to joint applicants.  Such rules would be Rules of the Commission, and therefore disallowable instruments and statutory rules [subsection 170NBBD(5)].

New Subdivision C - Determination of application and order for ballot to be held

New section 170NBC - Commission may notify parties etc. of procedure  

51.               This new section would allow the Commission, after an application for a ballot order is lodged, to notify all parties of the procedure for dealing with the application if the Commission considers that this will not delay, and may expedite, the determination of the application.

New section 170NBCA - Commission to act quickly in relation to application etc.  

52.               New subsection 170NBCA(1) would provide that in exercising its powers under Division 8A, the Commission must act as quickly as practicable and would be required, as far as is reasonably possible, to determine an application for a ballot order within 2 working days of the application being made.  A note would be inserted after new subsection 170NBCA(1) to make it clear that, in exercising its powers under new Division 8A, the general procedural obligations on the Commission (such as the requirement to act according to equity, good conscience and the substantial merits of the case) are applicable.

53.               In spite of the timeframe foreshadowed by this section, the Commission must not deal with an application for a ballot order unless it is satisfied that the notice requirements in new section 170NBBC have been complied with and those with a relevant interest have had a reasonable opportunity to make submissions in relation to the application.  (The indicative timeframe for dealing with applications would be a factor in determining what was reasonable in the circumstances.)

54.               Paragraph 111(1)(g) of the Act is not to apply to ballot proceedings under Division 8A [subsection 170NBCA(2)].  Paragraph 111(1)(g) allows the Commission to dismiss or to refrain from hearing or determining a dispute on various grounds, including that the dispute is trivial, is being dealt with by a State industrial authority, that a party to the dispute is engaging in conduct that is hindering the settlement of the dispute, or has breached an award, agreement or order of the Commission, etc.  Note, however, that under new subsection 170NBCB(2) the Commission would be able to refrain from considering a submission if it was satisfied that the submission was vexatious, frivolous, misconceived or lacking in substance.

New section 170NBCB - Parties and relevant employees may make submissions and apply for directions  

55.               Under new subsection 170NBCB(1), a party or a relevant employee (these terms are defined in new section 170NBAA), will be entitled to make submissions to, or to apply for directions from, the Commission about the application, or about any aspect of the conduct of the protected action ballot.  A note would be inserted after new subsection 170NBCB(1) to advise readers of the applicability of the Commission’s power to summon witnesses to help in the determination of an application for a ballot order or related directions

56.               New subsection 170NBCB(1A) would allow a person who has been nominated in an application to conduct a ballot to make submissions, and apply for directions, relating to the application.

57.               New subsection 170NBCB(1B) would allow an authorised ballot agent to make submissions, and apply for directions, relating to any aspect of a protected action ballot.

58.               New subsection 170NBCB(2) would allow the Commission to refuse to consider a submission if the Commission was satisfied that the submission was vexatious, frivolous, misconceived or lacking in substance. 

New section 170NBCC - Commission may give directions  

59.               This new section would empower the Commission to make directions regarding an application for a ballot order or about any aspect of the conduct of a protected action ballot.  Any such directions would be orders of the Commission.

60.               New subsection 170NBCC(2) would expressly authorise the Commission to issue directions to ensure that ballots are conducted expeditiously.

61.               New subsection 170NBCC(3) would require the Commission, in considering whether to issue such directions, to have regard to the desirability of the ballot results being available to the parties within 10 days of a ballot order being made.

New section 170NBCE - Commission procedure regarding multiple applications  

62.               New section 170NBCE seeks to ensure that any disruption that may be caused to an employer’s operations by the conduct of more than one protected action ballot proposed to be held within a short space of time can be minimised (especially, for example, attendance ballots).

63.               The Commission would be specifically empowered to hear and determine at the same time applications that concerned the same employer or that concerned the same place of work where different employers were involved (for example a construction site).  For example, if an order had been made concerning a particular employer or place of work and a further application was made concerning that employer or place of work, the Commission would be able to determine that the later ballot be held at the same time as the first ordered ballot, or it could vary the order for the first ordered ballot to require both ballots be held at the same time.  However, the Commission may only determine the applications at the same time, or order that ballots be conducted at the same time, if it considers that doing so will not unreasonably delay the determination of any application [paragraph 170NBCE(1)(c)] or the conduct of either ballot [paragraph 170NBCE(2)(d)].

New section 170NBCF - Application not to be granted unless certain conditions are met  

64.               New subsection 170NBCF(1) provides that the Commission must grant an application for a ballot order if is satisfied that that the applicant has, during the bargaining period, genuinely bargained with the employer and is continuing to do so.  Conversely, the Commission must not grant an application for a ballot order unless it is satisfied of these conditions.

65.               A note will be inserted to refer to the fact that, in order for an application to be considered by the Commission, it must meet the requirements set out in Subdivision B.

66.               Subsection 170NBCF(2) provides the Commission with discretion to refuse an application, despite subsection (1), if it is satisfied that granting the application would be inconsistent with the objects of the new Division 8A, or if it is satisfied that the applicant, or an employee or union member who would be eligible to vote in the proposed ballot, has at any time contravened a provision of Division 8A or an order or direction made by the Commission under that Division.  A note would be inserted setting out where orders can made under new Division 8A.

New section 170NBCH - Grant of application - order for ballot to be held  

67.               This new section would provide that if the Commission grants an application for a ballot order, the Commission would be required to order the applicant to hold a ballot in accordance with Division 8A. 

New section 170NBCI - Matters to be included in order  

68.               New subsection 170NBCI(1) sets out the information that would be required to be contained in a ballot order made by the Commission. 

69.               An order would be required to specify the name of the applicant or the applicant’s agent, the type of employees to be balloted, the voting method, the timetable for the ballot, the names of the person authorised by the Commission to conduct the ballot and the independent adviser for the ballot (if one is required - see new subsections 170NBE(3) and (4) for when an independent adviser is necessary) and the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed action

70.               New subsection (2) would require that the order must specify a postal ballot as the voting method unless the Commission is satisfied that the other voting method proposed in the application is more efficient and expeditious than a postal ballot.

71.               If a ballot is to be conducted by an attendance vote, the ballot order would be required to specify that voting is to take place during breaks or otherwise outside work hours [subsection 170NBCI(3)]. 

72.               New subsection 170NBCI(4) would allow the Commission, if it is satisfied that there are exceptional circumstances which justify it, to specify in the order that the percentage of votes (as a proportion of the total ballot roll) required for industrial action to be authorised by the protection action ballot may be less than the 40 percent required by subsection 170NBDD(1).

73.               New subsection 170NBCI(5) would allow the Commission, if it satisfied that there are exceptional circumstances to justify it, to specify a longer period, up to 7 days, than the existing 3 days written notice before protected industrial action may be taken required by paragraph 170MO(2)(b).

New section 170NBCJ - Guidelines for ballot timetables  

74.               To assist the Commission in speedily determining applications, the President of the Commission would be empowered to develop guidelines concerning timetables for the conduct of ballots under Division 8A.  The President may consult with the Australian Electoral Commission and any other person in developing any guidelines under this section. 

New section 170NBCK - Power of Commission to require information relevant to roll of voters  

75.               The only employees who would be eligible to vote in protected action ballots are those who would be subject to the proposed agreement and, in the case of union initiated ballots, are members of the union that is the applicant for the order.  To determine whether a particular person is eligible to vote in a ballot would frequently require the Commission (or the authorised ballot agent) to obtain information from the employer and the applicant.  New subsection 170NBCK(1) would allow the Commission to order the applicant or the employer of the employees (or both) to provide the Commission with a list of employees who might be eligible to vote in a proposed ballot, and any other information that the Commission reasonably requires to assist in compiling the roll of voters for the proposed ballot.  

76.               The Commission would be able to require the list or other information to be provided either to the Commission or to the authorised ballot agent and could require it be provided in whatever form the Commission thinks is appropriate [subsections 170NBCK(2) and (3)].

New section 170NBCL - Roll to be compiled by Commission or ballot agent  

77.               This new section would provide for the compilation of the roll of voters by the Commission, who must provide the roll to the authorised ballot agent or, alternatively, the Commission may order that the authorised ballot agent compile the roll.

New section 170NBCM - Eligibility to be included on the roll  

78.               New subsection 170NBCM(1) would establish that a person is only eligible to vote in a protected action ballot if the person:

·          was employed by the relevant employer on the day the ballot order was made; and

  • would be subject to the proposed agreement in respect of which the relevant bargaining period was initiated. 

79.               Additionally, if the applicant for the ballot order was an organisation of employees, the person would be required to have been a member of the organisation on the day the ballot order was made by the Commission.

80.               Further, under new subsection (2), a person whose employment is subject to an Australian Workplace Agreement whose nominal expiry date has not passed would not be eligible to vote in a ballot, even if the person meets the other requirements for eligibility in subsection (1).  This is because in such circumstances, the AWA, if it remains in place,  would operate to the exclusion of the proposed certified agreement.

New section 170NBCN - Adding or removing names from the roll  

81.               Under new subsection 170NBCN(1), the ballot agent would be required to add a persons name to the roll of voters for a ballot at any time before voting in the ballot is finished, if the person requests that their name be added to the roll, and the ballot agent is satisfied that the person is eligible to be included on the roll of voters. 

82.               In addition, a person is to be able to apply to the Commission for a declaration that they are eligible to be included on the roll of voters for a ballot.  If the Commission is satisfied that the person is eligible to be included on the roll of voters, and voting in the ballot has not finished, the Commission would be required to make the declaration sought, and direct the ballot agent to include the person’s name on the roll of voters for the ballot. 

83.               A process for removing a person’s name from the roll of voters is proposed in subsection 170NBCN(3).  A party to a ballot order, a person whose name is on the roll of voters for the ballot or the authorised ballot agent, is to be able to apply to the Commission for a declaration that a person whose name is on the roll of voters is not eligible to be included on the roll.  If, in the case of a postal ballot, voting had not yet finished, or in the case of any other type of ballot, voting had not yet started, and the Commission was satisfied that the person was not eligible to be included on the roll of voters, the Commission would be required to make the declaration sought and direct the ballot agent to remove the persons name from the roll of voters. 

84.               If a person’s name was removed from the roll as outlined above and a postal ballot had already commenced and the person had cast a vote, the ballot agent would be required to take all reasonable steps to ensure that the person’s vote was not counted [section 170NBCN(4)]. 

New section 170NBCO - Variation of order  

85.               New subsection 170NBCO(1) would allow an applicant for a ballot order to apply to the Commission, at any time before the expiry of the ballot order, to have the ballot order varied; for example to deal with unanticipated circumstances. 

86.               New subsection 170NBCO(2) would allow the authorised ballot agent under a ballot order to apply to the Commission, at any time before voting under the ballot has finished, to have the voting method or timetable for the ballot specified in the ballot order varied.  This would enable the ballot agent to request an alteration in the timetable if, for example, it encounters difficulties in compiling the roll of voters that would prevent it completing the ballot within the ordered timeframe.

New section 170NBCP - Expiry and revocation of order  

87.               New section 170NBCP would provide that where a ballot has not been held within the period specified in the ballot order, the order expires at the end of that period.  It would be open for an applicant for a ballot order to apply to the Commission to have the order revoked at any time before the order expires; for example, if the matters at issue are resolved before the ballot is conducted.  If such an application were made, the Commission would be required to revoke the order.  

New section 170NBCQ - Compliance with orders and directions  

88.               This new section would provide that if the Commission was to make an order or direction under Division 8A expressed to apply to a person or an organisation of employees, that person or organisation must comply with the order or direction.  (A ballot order would only apply to the applicant, although separate orders and directions could be made which would apply to other parties.)

New section 170NBCR - Commission to notify parties  

89.               This new section would require the Commission, as soon as practicable after it makes a ballot order, to ensure that a copy of that order is given to each party to the application and the authorised ballot agent.

New Subdivision D - Conduct and results of protected action ballot

New section 170NBD - Conduct of ballot  

90.               This new section would provide that a ballot will not be a protected action ballot unless it is conducted by the authorised ballot agent (this term is defined in new section 170NBAA).

91.               The effect of this section is that a ballot must be conducted by the ballot agent authorised by the Commission in the ballot order for it to comply with the requirements of new Division 8A.  If someone else conducts the ballot then any industrial action taken following such a ballot would not be protected industrial action under amendments proposed to section 170MQ [see item 22]. 

New section 170NBDA - Form of ballot paper  

92.               This new section would require the ballot paper for a protected action ballot to be in the prescribed form, and contain the following information:

·          the name of the applicant or applicant’s agent (as the case requires);

·          the types of employees who are to be balloted [for example, their occupations, work groups and locations - similarly required in existing paragraph 170MJ(b)];

·          the name of the ballot agent authorised to conduct the ballot;

·          the question or questions to be put to voters, including the nature of the proposed action;

·          a statement that the voter’s vote is secret and that the voter is free to choose whether or not to support the proposed industrial action; and

  • instructions to the voter on how to complete the ballot paper.

New section 170NBDB - Who can vote  

93.               This new section would provide that a person cannot vote in a ballot unless the persons name is on the roll of voters for the ballot (established under new section 170NBCL above). 

New section 170NBDC - Declaration of ballot results  

94.               This new section would require the authorised ballot agent to make a declaration of the results of the ballot in writing, and inform the applicant, the affected employer and the Industrial Registrar, in writing, of the results as soon as practicable after the end of voting. 

New section 170NBDCA - Ballot reports

95.               This new section would require the authorised ballot agent and authorised independent adviser (if one has been appointed), to provide a written report to the Industrial Registrar about the conduct of the ballot as soon as practicable after the end of voting [new subsections 170NBDCA(1) and (3) 

96.               The reports must set out the details of any complaints made to the authorised ballot agent or authorised independent adviser about the conduct of the ballot or any irregularities in the conduct of the ballot that have come to their attention [new subsections (2) and (5)].  New subsection 170NDCDA defines what is meant by conduct and irregularity in this section.  However, these requirements do not limit what may be included in the report; nor does the absence of these factors mean a report is not necessary.

97.               The report could be relevant in any future consideration by the Commission as to whether someone is a fit and proper person to be an authorised ballot agent or independent ballot adviser.

98.               This is a civil penalty provision (see item 26).

New section 170NBDD - Effect of ballot  

99.               Under new section 170NBDD, industrial action would only be authorised by a protected action ballot if:

·          the action was the subject of a ballot conducted in accordance with the provisions of new Division 8A;

·          at least 40% of persons on the roll of voters for the ballot established under new section 170NBCL voted in the ballot or a lesser percentage specified by the Commission [for when this may occur see new subsection 170NBCI(4)];

  • more than 50% of the votes cast in the ballot approved the industrial action; and
  • the action commences within a 30 day period after the later of the date of the declaration of the results of the ballot or the nominal expiry date of the existing agreement (or the last occurring nominal expiry date if there is more than one existing agreement).  The Commission could extend this 30-day period by up to 30 days if both the employer and applicant for the ballot order jointly apply for such an extension.  There may only be one such extension [new subsections 170NBDD(2A) and (2B)].

100.           The action is not authorised if it occurs after the end of the bargaining period that gave rise to the application for a ballot (section 170MV sets out when a bargaining period ends).  A note will be inserted to make clear that if another bargaining period is initiated later, and industrial action is proposed, then it is treated as though it is a new application and the industrial action will only be protected if all the steps required by Division 8A are completed.

101.           New subsection 170NBDD(4) defines ‘existing agreement’, which includes an old IR agreement.

New section 170NBDE - Registrar to record questions put in ballot, and to publish results of ballot

102.           New section 170NBDE would require the Industrial Registrar to keep, for each ballot held under Division 8A, a record of questions put to the voters and the results of the ballot.  The Registrar would be required to publish the results of a ballot as soon as practicable after being notified of the results by the authorised ballot agent. 

New Subdivision E - Authorised ballot agents and authorised independent advisers

New section 170NBE - Who may be an authorised ballot agent ?

103.           This section deals with who the Commission may name as an authorised ballot agent.

104.           The Commission may name either the Australian Electoral Commission or another person [new subsection 170NBE(1)].

105.           The Commission must not name a person other than the Australian Electoral Commission unless the Commission is satisfied that the person:

·          is capable of ensuring the security and secrecy of votes cast in the ballot, and that the ballot will be fair and democratic;

·          will conduct the ballot expeditiously; and

·          is otherwise a fit and proper person to conduct the ballot (new subsection 170NBE allows for regulations to be made to prescribe conditions a person must meet, and factors the Commission must take into account, for the Commission to be satisfied of this.

106.           New subsection 170NBE (3) provides that an applicant may apply to be the authorised ballot agent, although, in this case, the applicant must nominate another person to be the authorised independent adviser for the ballot and the Commission must name that person as the authorised independent adviser [new section 170NBEA sets out who may be authorised by the Commission to be the independent adviser].  This additional requirement is designed to allow applicants to run their own ballots, provided that the applicants are properly advised by independent advisers [see new section 170NBEA].

107.           New subsection 170NBE(4) provides that an authorised independent adviser must be nominated and appointed if the Commission is satisfied that a person nominated as the authorised ballot agent is not sufficiently independent of the applicant. 

New section 170NBEA - Who may be an authorised independent adviser?  

108.           New subsection 170NBEA(1) sets out who may be appointed as an authorised independent adviser [the appointment of an authorised independent adviser may be required by new subsections 170NBE(3) and (4)].  The Commission must not name a person as the authorised independent adviser unless it is satisfied that the person is sufficiently independent of the applicant and is capable of providing advice and recommendations to the authorised ballot agent that are directed towards ensuring that the ballot will be fair and democratic.  New subsection 170NBEA(3) will allow the making of regulations to prescribe factors that the Commission must take into account when determining if a person is capable of providing such advice and recommendations to the authorised ballot agent.

New Subdivision F - Funding of ballots

New section 170NBF - Liability for cost of ballot  

109.           New section 170NBF would provide that the applicant for a ballot order is liable for the cost of holding the ballot, and that where a ballot application was made jointly, each applicant is jointly and severally liable for the cost of holding the ballot subject to the Commonwealth being partially liable for the reasonable costs of the ballot if certain conditions are met [new section 170NBFA].

New section 170NBFA - Commonwealth has partial liability for cost of ballot  

110.           This new section provides that the Commonwealth will be liable to pay to the authorised ballot agent 80% of the reasonable ballot costs [new subsection 170NBFA(2)].  The Industrial Registrar is required to determine the reasonable ballot cost [new subsection 170NBFA(1)], on application by the application within a reasonable time after the completion of the ballot.   

111.           New subsection 170NBFA(3) provides that, to the extent the Commonwealth becomes liable for the ballot costs, the liability of the applicant is discharged.

112.           New subsection 170NBFA(4) enables regulations to be made prescribing matters that are to be taken into account by the Industrial Registrar in determining whether ballot costs are reasonably and genuinely incurred for the purposes of new subsection 170NBFA(1). 

New Subdivision G - Miscellaneous

New section 170NBG - Identity of certain persons not to be disclosed by Commission

New section 170NBGA - Identity of certain persons not to be disclosed by individuals  

113.           New subsection 170NBG(1) would provide that the Commission must not disclose information that would identify a person as:

·          an applicant for a ballot order, where the applicant is represented by an agent;

·          an employee who supports an application for a ballot order, for the purposes of new subsection 170NBB(3);

·          a person whose name appears on the roll of voters for a ballot; or

  • a person who is party to an Australian Workplace Agreement. 

114.           New subsection 170NBG(2) would establish exceptions to the prohibition in new subsection 170NBG(1): the Commission could disclose information that would otherwise be prohibited under subsection (1) if the disclosure was required or permitted by any Act or by regulations made under an Act, or if the disclosure had been authorised in writing by the person whose identity would otherwise be protected. 

115.           A similar prohibition on revealing information would apply to persons generally under new section 170NBGA.  Under this section, it would be an offence to disclose the protected information listed in section 170NBG.  The proposed maximum penalty for this offence is 6 months imprisonment. 

116.           Proposed exceptions to the offence are set out in new subsection 170NBGA(2), based on those in existing subsection 170WHB(2): a person could disclose protected information if the disclosure was made by a Registry official, authorised ballot agent or authorised independent adviser in the course of performing their functions or duties, if the disclosure was required or permitted by any Act or by regulations made under an Act, or if the disclosure had been authorised in writing by the person whose identity would otherwise be protected. 

117.           New subsection 170NGBA(3) would specify that, for the purposes of determining the burden of proof in proceedings relating to offences under new subsection 170NBGA(1), the exceptions set out in new subsection 170NBGA(2) would be part of the description of the offence.  This subsection addresses the requirements of the Criminal Code. 

118.           Definitions of the terms ‘protected information’ and ‘Registry official’, which would be used in new section 170NGBA, are set out in new subsection 170NGBA(4). 

New section 170NBGB - Immunity if person acted in good faith on ballot results 

119.           This new section proposes that where the results of a protected action ballot, as declared by the authorised ballot agent, purport to authorise particular industrial action, and an organisation or person goes ahead and organises or participates in industrial action acting in good faith on the results of the ballot, no legal action is able to be taken against that organisation or those persons if it turns out that the action was not in fact authorised by the ballot.

120.           This immunity would not apply in cases where the industrial action resulted in personal injury, wilful or reckless damage to property or the unlawful taking or keeping of property.  Also, new subsection 170NGB(2) provides that there would be no immunity against legal action for defamation in the course of industrial action.  (These exceptions are in line with the exceptions to immunity provided by existing section 170MT.)

New section 170NBGBA - Limits on challenges etc. to ballot orders

New section 170NBGBB - Limits on challenges etc. to ballots

New section 170NBGBC - Penalties not affected

121.           These three sections are designed to protect the integrity of the conduct of ballots and ballot results, by limiting the circumstances in which ballot orders, the conduct of ballots and ballot results may be challenged. 

122.           Under new section 170NBGBA, a ballot order, or a decision or order relating to a ballot order, can only be challenged where:

·         it is being alleged that another party has contravened (other than in a technical way) the secret ballots provisions or a Commission order relating to secret ballots; or misled the Commission in proceedings to which the order or decision relates; and

·         the relevant court considers that there is a reasonable basis for the allegation.

123.           New section 170NBGBB protects ballot results and the conduct of ballots from challenge where the ballot has been conducted or has purportedly been conducted unless:

·         it is being alleged that another party has contravened (other than in a technical way) the secret ballots provisions or a Commission order relating to secret ballots; acted fraudulently in relation to the conduct or declaration; or acted in such a way as to cause an irregularity that affected, or could have affected the outcome of the ballot; and

·         the relevant court is satisfied that there is a reasonable basis for the allegation.

124.           New subsection 170NBGBB(3) defines conduct and irregularity, and makes it clear that the conduct of a ballot extends to the compilation of the roll of voters.

125.           New section 170NBGBC makes clear that the limitations in new sections 170NBGBA and 170NBGBB do not prevent a penalty being imposed upon a person for a contravention of the Act.  The effect of this provision would be to ensure that criminal and civil sanctions that would otherwise be relevant to conduct in relation to a protected action ballot remain applicable (for example, the criminal sanctions contained in section 317 of the Act).

New section 170NBGC - Preservation of ballot papers  

126.           Under new section 170NBGC an authorised ballot agent who conducts a ballot under Division 8A would be required to keep the roll of voters, all ballot papers, envelopes and other records relevant to the ballot for one year after completion of the ballot.  A penalty applies to this provision - see item 31 which inserts a new section 314A.

New section 170NBGD - Conferral of function on AEC  

127.           This new section would ensure that if the Australian Electoral Commission (AEC) is the authorised ballot agent for a ballot under Division 8A, it is a function of the AEC to conduct the ballot.  That is, if the Commission authorises the AEC to conduct a ballot in a ballot order, the AEC would be required to conduct the ballot.  The AEC would also be unable to make a submission or application to the Commission to avoid being nominated or appointed as an authorised ballot agent.

New section 170NBGE - Regulations  

128.           Regulations may be made in relation to the following matters:

·          the qualifications and appointment of applicants’ agents;

·          procedures to be followed in conducting a ballot or class of ballot;

·          the qualifications, appointment, powers and duties of scrutineers;

·          the powers and duties of authorised independent advisers; and

  • the manner in which ballot results are to be published. 

Item 26 - After paragraph 170ND(d)

Item 27 - At the end of section 170NF

Item 28 - After subsection 178(1) 

129.           These items deal with the enforcement of orders and directions under new Division 8A [item 25].

130.           Item 26 proposes to insert new paragraphs 170ND(da) and (db) into the Act.  These new paragraphs would specify that new section 170NBCQ (requiring compliance with an order or direction made in relation to a protected action ballot) and new section 170NBDCA (which requires the lodging with the Industrial Registrar of a ballot report by the authorised ballot agent and, where relevant, the authorised independent adviser) are penalty provisions for the purposes of Division 10 of Part VIB.  

131.           Item 27 would amend section 170NF to set out who may apply to an eligible court for an order imposing a penalty on a person or organisation who has failed to comply with an order or direction of the Commission under Division 8A or who has failed to comply with the requirement to lodge a post ballot report under section 170NBDCA; namely: employees eligible to vote in a ballot, an employer, an ballot applicant, an inspector, or any person prescribed by the regulations.  (Note that existing section 170NG also allows an eligible court to grant an injunction requiring a person not to contravene or to cease contravening a penalty provision.)

132.           Item 28 would ensure that orders of the Commission under Division 8A of Part VIB could only be enforced under Division 10 of Part VIB as outlined above, by making clear that existing subsection 178(1) (which provides for penalties for breach of Commission awards and orders) would not apply to orders under Division 8A. 

Item 29 - At the end of sections 287 and 288 

133.           Section 287 provides that financial members of an organisation have the right to vote in any ballot taken for the purpose of submitting a matter to a vote of the members of the organisation.  Section 288 provides that financial members of an organisation may request information regarding ballots from the returning officer to determine whether there has been an irregularity in relation to the ballot.  As entitlement to vote in a protected action ballot will be regulated by new Division 8A, item 29 proposes amending sections 287 and 288 to specify that neither section applies to protected action ballots conducted under new Division 8A.

Item 30 - Section 307 

134.           This item proposes the repeal of existing section 307, which creates an offence regarding false or misleading material in an application for a secret ballot under existing section 136, as the relevant aspects of section 136 are to be repealed.  Existing section 307 would be replaced by two similar provisions regarding ballots under Division 8A: one dealing with applications in general and the other dealing with joint applications. 

New section 307 - False statement in application for protected action ballot order

New section 307A - False statement in joint application for protected action ballot order  

135.           These new sections would prohibit a person making a statement or joining with others in making a statement in an application for a protected action ballot when in doing so they are reckless as to whether the statement is false or misleading. 

136.           The proposed maximum penalty for offences against new sections 307 and 307A is 10 penalty units.

Item 31 - After section 314 

New section 314A - Failure to preserve protected action ballot papers etc.  

137.           This item would insert a provision that would prohibit a person knowingly or recklessly contravening new section 170NBGC (which would require the preservation of ballot papers for one year after completion of the ballot - see item 25). 

138.           The proposed maximum penalty for an offence against new section 314A is a 5 penalty units fine, 6 months imprisonment, or both.

Item 32 - Paragraph 317(5)(a)

Item 33 - Paragraph 317(5)(b)

Item 34 - At the end of section 317 

139.           These items deal with offences in relation to ballots. 

140.           Item 32 proposes a consequential amendment to paragraph 317(5)(a) to remove the reference to secret ballots ordered under section 136.  It is proposed that existing provisions in section 136 allowing the Commission to order a secret ballot would be repealed [item 6].

141.           Item 33 proposes an amendment to paragraph 317(5)(b) to specify that the offences set out in section 317 apply to ballots conducted under Division 7A of Part IX (these are ballots concerning withdrawal of organisations from amalgamations).  [This corrects an oversight and is not directly related to secret ballots for protected action.]

142.           Item 34 proposes to insert a new subsection 317(6) into the Act.  This new subsection would provide that a ballot referred to in subsections 317(2), (3) and (4) includes a ballot held under Division 8A of Part VIB, and would ensure that the offences set out in these subsections apply to protected action ballots.

Part 2 - Application and saving

Item 35 - Application of amendments 

143.           Subitem (1) would provide that the amendments in this Bill would apply to industrial action taken on or after the day on which the amendments commence.

144.           Subitem (2) would provide that the amendments would not apply to industrial action taken after the commencing day if:

·          the action is protected action under subsection 170ML(2) of the Act;

·          the requirements of existing sections 170MO and 170MR - to provide written notice of the intended industrial and, if an organisation is a negotiating party, that the action was properly authorised - were met before the commencement day; and

  • the action is taken within 14 days after the commencing day. 

145.           Any action different to that specified in the notice given under s170MO or any continuation of action after 14 days from commencement of the new provisions would require the authorisation of a protected action ballot under new new Division 8A. 

Item 36 - Saving 

146.           This item deals with secret ballots ordered by the Commission under existing sections 135(2) and (2B) (which would be repealed by items 3 and 4 of this Bill) before the commencing day and where the results of the ballot are not known (whether because the result has not been determined or the ballot has not been conducted) before the commencing day. 

147.           In such circumstances, the order for the ballot would continue to have effect and the existing elements of Division 4 of Part VI of the Act would continue to apply.

148.           In addition, existing section 170MQ would apply.  (That is, any action taken by a union or member or employee would not be protected action unless the ballot has been held and has approved the action.)

149.           However, if such a ballot approves industrial action, any such action taken following the ballot must begin within 14 days of the ballot result being declared and 3 working days notice of the action must be given to the employer.

150.           If a ballot under the relevant existing provisions is conducted and finalised before the commencing day, then item 35 would apply. 



SCHEDULE 2 - SECTION 170MWB OF THE WORKPLACE RELATIONS ACT 1996

1.                   These amendments proposed in this Schedule will only commence after the enactment and commencement of the Workplace Relations Amendment (Genuine Bargaining) Bill 2002.  This Schedule will make amendments that are consequential to provisions in that Bill.

Workplace Relations Act 1996

Item 1 - At the end of section 170MWB

2.                   Section 170MWB is proposed to be inserted in the Workplace Relations Act 1996 by the Workplace Relations Amendment (Genuine Bargaining) Bill 2002.  This item would add a new subsection to section 170MWB, to deal with situations where protected industrial action could be taken, without the need for a further ballot, after a cooling-off period ends, by virtue of new section 170MWE which is proposed by this Bill.

3.                   This item would give the Commission the same power when ordering a cooling-off period under section 170MWB, as it would have when ordering that a bargaining period be suspended under section 170MW (as it is proposed to be amended by item 23 of Schedule 1 to this Bill), to specify in the order that the required period of written notice be extended from 3 days up to 7 days, if it is satisfied that there is exceptional circumstances justifying it. 

Item 2 - Paragraph 170MWE(1)(a)

Item 3 - Paragraph 170MWE(3A)(b)

Item 4 - Subsection 170MWE(3A) (note)

4.                   These items would ensure that a suspension of a bargaining period under subsection 170MWA(1) is covered by new section 170MWE [to be inserted by item 24 of Schedule 1], which regulates how protected action by unions or employees may be recommenced after the suspension of a bargaining period has ended.