2002

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

WORKPLACE RELATIONS AMENDMENT

( SECRET BALLOTS FOR PROTECTED ACTION AWARD SIMPLIFICATION ) 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 AWARD SIMPLIFICATION ) BILL 2002

 

OUTLINE  

 

This Bill proposes amendment s to the Workplace Relations Act 1996 (the WR Act) by limiting and clarifying the allowable award matters and making related changes to the award making powers of the Australian Industrial Relations Commission ( Commission ) .  

 

The Bill proposes to simplify the allowable award matters by:

 

·         r emov ing various items from the list of allowable award matters ;

·         tightening the scope of some existing allowable matters; and

·         making explicit various matters which are not within the scope of allowable award matters .

 

The Bill proposes to clarify the following aspects of award making:

 

·         p rovisions incidental to an award may only be included in an award where they are essential for the operation of that award;

·         p rovisions which facilitate agreement making in the workplace are allowable award matters; and

·         m achinery provisions, for example the commencement date of awards , are allowable matters.

 

The Bill proposes that exceptional matters orders only be made by a Full Bench of the Commission.

 

The Bill also proposes transitional arrangements which require the Commission to review all awards within a period of 12 months to ascertain whether they contain provisions that may no longer be included as allowable award matters due to the amendments contained in the Bill.   At the end of the 12 month review period, any provision in an award which is no longer an allowable matter due to the amendments proposed in the Bill will cease to have effect. This Bill proposes new preconditions for the taking or organising [PC1]   of protected industrial action by employees and organisations of employees.  It is proposed that in order for industrial action In order to be protected action under the provisions of the Workplace Relations Act 1996 (the Act), it it is proposed that industrial action must be preceded by a secret ballot process overseen by the Australian Industrial Relations Commission (the Commission) that approves the taking of the action .

 

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.

 

The new provisions set out proposed procedural requirements for ballots, including specific information that would be required to be provided to employees in ballot papers.  Industrial action would be authorised by a ballot if at least 50 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.

 

The Bill also proposes consequential changes to the existing secret ballot provisions of the Act.

[ 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.]

 

 

FINANCIAL IMPACT STATEMENT  

 

The proposals contained in the Bill are budget neutral.

 

 

 

REGULATION IMPACT STATEMENT

 

Analysis o f Key Elements o f t he Bill

 

Background

 

One of the primary objectives of the WROLA Act was to reinforce the primacy of workplace agreement-making in the federal workplace relations system.   To achieve this objective, it was necessary to amend provisions of the WR Act dealing with awards as well as those dealing with agreement-making.   The purpose of the amendments to the awards provisions was to fundamentally refocus the role of award system as a safety net of minimum wages and conditions of employment that would not operate as a disincentive to agreement-making.  The relevant amendments made by the WROLA Act:

 

·                     inserted new objects into Part VI of the WR Act to reflect the safety net role envisaged for awards and the role of the Commission in maintaining the safety net (section 88A of the WR Act);

 

·                     specified the matters to which the Commission must have regard in ensuring that a safety net of fair minimum wages and conditions of employment is established and maintained (section 88B);

 

·                     limited the matters in relation to which the Commission could exercise arbitration powers to 20 'allowable award matters' [1] (set out in section 89A of the Act) [2] and provided for existing awards to be simplified so as to provide only for allowable award matters (Part 2 of Schedule 5 to the WROLA Act);

 

·                     precluded the Commission from dealing with industrial disputes in relation to employees whose wages and conditions of employment are governed by a State award or employment agreement except where ceasing to deal with such a dispute would not be in  t he public interest (section 111AAA of the WR Act); and

 

·                     provided for State awards and certain forms of State agreements to displace federal awards (section 152).

 

Award simplification

 

The approach taken by the Commission to the application of section 89A of the WR Act and Part 2 of Schedule 5 to the WROLA Act for the purposes of simplifying awards has, in many instances, resulted in awards continuing to contain provisions that are outside the intended scope of the allowable award matters.  As a consequence, many awards continue to contain unnecessary detail and administrative regulation (for example, provisions regulating the transfer of employees between work locations), provisions that hinder productivity and the efficient performance of work (for example provisions prescribing the proportion or number of employees that may be engaged in particular job classifications) and regulate matters that are more appropriately dealt with at the workplace level (for example, education and training).

 

There are also concerns that the allowable award matters include matters in relation to which award regulation is unnecessary because they are provided for in federal or State legislation.   These include, for example, notice of termination of employment and long service leave.

 

Where matters are the subject of both statutory and award regulation, employers can be confronted with complex and confusing compliance requirements.   It is not always clear to employers which set of requirements apply, and in some cases, obligations will differ across a workplace. For example, the employment of some employees in a workplace may be regulated by an award which includes long service leave provisions, while the employment of other employees in the same workplace may be award-free or be covered by an award that includes different entitlements or does not include long service leave provisions.

 

Only 182 Awards were simplified or set aside through award simplification in the 18 month interim period under the WROLA Act.   Since then 2,422 awards have been simplified or set aside with 376 currently being simplified.

 

Options

 

Option 1: Status Quo

 

Option 2: Amend the WR Act

 

Amend the WR Act to ensure that awards operate as intended as a genuine safety net of basic minimum wages and conditions by:

 

·              reducing the scope of the allowable award matters by amending subsection 89A(2) of the WR Act to exclude:

 

-             skill based career paths;

-             bonuses

-             long service leave;

-             notice of termination;

-             jury service.

 

·                    clarifying the scope of the remaining allowable matters to ensure that they operate as intended, for example:

 

-             'cultural leave' covers only ceremonial leave for Aboriginal and Torres Strait Islanders and other similar types of cultural or religious obligations;

 

-             'allowances' covers only the reimbursement of expenses incurred in the course of employment, and allowances for skills not taken into account in the employee’s rate of pay or for disabilities associated with the performance of particular tasks, or work in particular conditions or locations;

 

-             “redundancy pay” only covers genuine redundancy and not to custom and practice that arises in certain industries.

 

-             'public holidays' covers only gazetted public holidays observed generally throughout the community and not days such as union picnic days; and

 

-             provisions dealing with training and education, accident make up pay, union picnic days, quotas on particular types of employment, dispute settling procedures that do not allow for freedom of choice in representation or maximum or minimum hours of work for regular part-time employees are not included in awards. 

 

·               limiting the application of subsection 89A(6) to ensure that only those provisions that are incidental to an allowable award matter provided for in the award and ‘essential for the purpose of making a particular provision operate in a practical way’ may be included in awards; 

 

·               accelerating the progress of award simplification, by providing for a 12-month interim period before non-allowable matters cease to have effect (compared with the provision of an 18 month period under the 1996 legislation); and

 

·               ensuring that all exceptional matters orders must be made by Full bench of the Australian Industrial Relations Commission.

 

Parties ’ views

 

The Australian Chamber of Commerce and Industry consider that despite the 1996 workplace relations reform package, there are still further challenges including that the system continues to be unduly complicated and prescriptive and that the award system continues to have too great a role vis-à-vis agreements. 

 

 

 

 

 

Impact Analysis

 

Option 1: Status Quo

 

Costs

 

Awards containing unnecessary detail and administrative regulation (for example, provisions regulating the transfer of employees between work locations), provisions that hinder productivity and the efficient performance of work (for example provisions prescribing the proportion or number of employees that may engaged in particular job classifications) and provisions that regulate matters that are more appropriately dealt with at the workplace level (for example, education and training) impose costs on businesses in terms of productivity and unnecessary regulation.

 

Federal awards that require employers to compensate their employees for pay lost whilst undertaking jury service can impose significant burdens on employers.  The precise cost impact will vary according to the jurisdiction in which jury service is performed, the employee's rate of pay and the duration of jury service.

 

Payment arrangements for jury service vary substantially between jurisdictions.   Some jurisdictions provide for payment of compensation in respect of lost wages in addition to daily rates, but these amounts are capped.   Other jurisdictions make no provision for compensation for lost wages, but generally provide for higher daily payments than those jurisdictions that provide for compensation for lost wages.   For example, if a tradesperson whose employment is regulated by the Metal, Engineering and Associated Industries Award 1998 and is paid $477.20 per week performs jury service for 10 days, there are two jurisdictions in which payments made by the State would fully meet the employee's ordinary award wages.  In all other jurisdictions, the employee's employer would be required to make some payment, varying across jurisdictions, to top up the employee's jury payments so that the employee continues to receive an amount equivalent to his or her ordinary award wages.

 

Employers would be liable to meet higher costs where an employee performs jury service in a long trial and where it is necessary for the employer to engage a replacement employee during the absence of the employee performing jury service.   These costs can impose a disproportionate burden on small businesses as it is more difficult for them to absorb unanticipated costs and to cover the absence of an employee without engaging a replacement.   Small businesses will often need to meet the cost of engaging a replacement employee as well as make up pay for the employee performing jury service, while larger businesses may have greater flexibility to cover an absence.

 

The regulation of employment conditions through both award provisions and legislation is complex and confusing and creates an unnecessary administrative burden for employers.

 

The slow progress of the award simplification process has meant that some awards still have not been varied to remove 'non-allowable' matters, unnecessary detail and provisions that hinder productivity and the efficient performance of work.

 

Whilst non-allowable matters are of no effect [3] , their retention can be confusing for award parties who may be uncertain about their rights and obligations.   The continued operation of provisions that come within the scope of the allowable matters but contain unnecessary detail or hinder productivity and the efficient performance of work impose additional compliance costs and unnecessary costs incurred because potential productivity gains have been prevented by restrictive award provisions.

 

Benefits

 

The primary benefits of the existing arrangements are that, compared with the previous legislation, (including previous measures to modernise awards), the reforms introduced by the WROLA Act have resulted in the simplification of number of key awards and have contributed towards refocussing the award system as a safety net that does not act as a disincentive to bargaining.

 

Option 2: Amend the WR Act

 

Costs

 

The amendments relating to the allowable award matters will require the review of almost all federal awards [4] .   The parties (ie unions, employers and employer organisations) to awards that are to be simplified will be required to devote resources to that task and, where necessary, to participation in review proceedings in the Commission. The Commission will be required to vary awards to bring them into line with the allowable award matters. In addition to those awards not yet simplified, the Commission's award simplification function currently being undertaken under Schedule 5 to the WROLA Act would continue pursuant to the WR Act as amended.

 

It is relevant to note that there will be substantially fewer awards in place when the new simplification process commences than was the case at the commencement of the WROLA Act process, so the overall size of the task will be smaller.  As at 30 September 2002, there were

2,156 current awards.  At the commencement of the WROLA Act process there were 3 253 awards in place.

 

Some employers may incur additional costs as a result of obligations that arise under State/Territory long service leave legislation.  The impact of the removal of long service leave from federal awards will depend on the terms of the relevant award provisions, the legislation that would apply in place of award obligations and the extent to which long service leave entitlements are provided for by way of agreements.

 

The removal of jury service from the allowable award matters may require State and Territory Governments to meet additional costs in connection with jury service.  As noted above, payment arrangements for jury service vary substantially between jurisdictions.  Any decisions about whether existing State/Territory arrangements should be changed to take into account the fact federal awards would no longer require employers to provide 'make-up' pay for employees engaged in jury service are matters for States and Territory Governments.

 

 

 

Benefits

 

The benefits of option 2 are that:

 

·                    the award safety net would not impede workplace efficiency or organisational effectiveness by imposing industry-wide obligations that do not meet the different needs of individual workplaces;

 

·                    award provisions would not duplicate matters that are dealt with in legislation, thus eliminating confusion that duplicate statutory and award provisions can create for employers and employees at the workplace level;

 

·                    employers will benefit from being relieved of award obligations to meet costs associated with jury service which are more appropriately the responsibility of the relevant judicial systems;  

 

·                    by providing for a 12 month transitional period to bring existing awards into line with the revised allowable matters and award simplification criteria, the productivity benefits and cost savings are made available to workplaces more quickly than was the case under the 18 month transitional period that applied under the WROLA Act; and

 

·                    employers and employees will have greater freedom of choice as to the form of regulation that is most appropriate to their needs.

 

Conclusion and Recommended Option

 

Option 2 further focuses awards on their role as a safety net to protect the low paid.  In this way, awards will provide a safety net that does not create a disincentive to agreement making, and in doing so, will ensure that agreement-making remains the primary focus of the federal workplace relations system.

 

Whilst the further award simplification measures in option 2 will require award parties and the Commission to devote resources to reviewing and varying almost all federal awards, the further simplification of awards provides for more flexibility in workplace regulation and less prescription in awards than the existing arrangements, thus providing a basis for increased productivity and reduced costs for businesses.

 

Although the removal of additional matters from the scope of the allowable award matters will reduce award regulation, it is open to employers and employees to make other arrangements in respect of those matters where it is appropriate to the needs of their particular workplaces to do so.  In some instances, parties might choose to provide for particular matters by way of agreement and some others matters might be dealt with by way of policies and procedures at the workplace.

 

Under option 2, parties will continue to be able to seek award regulation in respect of non-allowable matters where the matters involved are exceptional and a harsh or unjust outcome would result from the exclusion of award regulation.  In this way, option 2 strikes an appropriate balance between reducing award regulation generally and providing additional regulation where necessary in the public interest.

 

Option 2 provides for a 12 month transitional period to bring existing awards into line with the revised allowable matters and award simplification criteria compared with an 18 month transitional period that applied under the WROLA Act.  This will allow sufficient time for an orderly transition to the new arrangements without unduly delaying access to the productivity benefits and cost savings that may be achieved through simplified awards.

The requirements for protected action to be preceded by a secret ballot will involve costs to the

Commonwealth.  The applicant will be liable for the costs of the ballot, but the Commonwealth will reimburse to applicants 80 per cent of the reasonable costs incurred in holding the ballot. [PC2]  

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.  Subclause 2(1) provides that, subject to subclauses (2) and (3), the Bill commences on proclamation The amendments set out in Schedule 1 will commence on a single day to be fixed by proclamation, subject to subsection (3) .

 

3.         Subclause Subsection 2 (2 3 ) Clause 2 has the effect that if the Bill an item in the table 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.

 

4.         Subclause 2(3) provides that, if either the Workplace Relations Amendment (Australian Workplace Agreements Procedures) Act 2000 or item 3 of schedule 1 of the the Workplace Relations Amendment (Termination of Employment) Act 2000 commence before this Act, item 1 of Schedule 1 (which proposes a definition of ‘old IR agreement’) does not commence at all.

 

Clause 3 - Schedule(s)

 

4.         5.         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 - S ECRET BALLOTS FOR PROTECTED ACTION AWARD SIMPLIFICATION

 

 

1.1               This Schedule proposes amendments to Part VI of the Workplace Relations Act 1996 (the WR Act), which are directed towards ensuring that awards act as a safety net of basic minimum wages and conditions of employment in respect of appropriate allowable award matters .

 

1.2               The proposed amendments provide for further simplification of awards.

 

Part 1 - Amendments  

 

Workplace Relations Act 1996  

 

Item 1 - Subsection 4(1)

 

1.         The current definition of ‘certified agreement’ (subsection 4(1)) is limited to agreements certified under the current provisions (which were introduced by the Workplace Relations and Other Legislation Amendment Act 1996 and commenced on 31 December 1996).

 

2.           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 of the Act) is relevant in relation to when a protected action ballot may be ordered.

 

Item 1 2 - At the end of Section 4 Paragraph 89A(2)(a)

 

1.3               3.         This item proposes a technical amendment. The effect of this item, which is consequential upon the amendment proposed by item 1 of this Schedule,   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) . would remove ‘skill based career paths’ from the allowable award matters.  These matters are more appropriately dealt with at the enterprise or workplace level and, if regulation by an industrial instrument is necessary, by a certified agreement or an Australian Workplace Agreement.

 

Item 2 - Paragraph 89A(2)(d)

 

1.4               This item would remove ‘ bonuses’ from the allowable award matters.   These matters are more appropriately dealt with at the enterprise or workplace level and, if regulation by an industrial instrument is necessary, by a certified agreement or an Australian Workplace Agreement.   ‘ Piece rates ’ would be retained in the list of allowable matters to allow the Commission to include clauses relating to piece rates in awards. 

 

Item 3 - Paragraph 89A(2)(f)

 

1.5               This item would remove ‘long service leave ’ from the allowable award matters.  Minimum standards of long service leave would be regulated by State or Territory legislation.

 

Item 4 - Paragraph 89A(2)(g)

 

1.6               This item would omit ‘cultural leave’ from paragraph 89A(2)(g) and ‘other like

forms of leave’ from the allowable award matters.   The capacity to include in an award provision

for certain forms of cultural leave is provided for in proposed paragraph 89A(2)(ga) [ I tem 5 of this Schedule].

 

Item 5 - After paragraph 89A(2)(g)

 

1.1                 Proposed new paragraph 89A(2)(ga) would include in the allowable award matters leave for Aboriginal and Torres Strait Islander people to meet ceremonial obligations and leave for other cultural or religious obligations of a similar nature. Item 3 - Subsection 134(5) (paragraphs (d) and (e) of the definition of prescribed premises ) 

 

4.          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 7), with a reference to proposed Division 8A of Part VIB (to be inserted by item 23), which would contain new provisions relating to protected action ballots. 

 

Item 4 - Subsection 135(2) 

 

5.          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. 

 

6.          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 5 - Subsection 135( 2B) 

 

7.          For the same reasons as outlined in relation to subsection 135(2) [item 4], T t his item proposes the repeal of existing subsection 135(2B), which allows the Commission to order a secret ballot to determine whether employees support taking industria l action where it appears that industrial action is being taken or is threatened, impending or probable, for the same reasons as outlined in relation to subsection 135(2) [item 4]. 

 

 

Item 6 - Subsection 135(3)  

 

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

 

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

 

9.         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 6 - Paragraph 89A(2)(i)

 

1.7               This item would repeal paragraph 89A(2)(i) and replace it with a new provision that further limits the scope of the Commission’s powers under subsection 89A(1) in respect of public holidays.   Proposed paragraph 89A(2)(i) would limit the Commission’s powers to includ e in an award provisions dealing with:

 

·         the observance of days declared by State or Territory Governments to be observed as public holidays generally within the State or Territory or region of the State or Territory concerned by employees who work in the relevant State, Territory or region ; and

·       the entitlements of employees paid in respect of those days.

 

1.8               Proposed paragraph 89A(2)(i) would preclude the Commission from including in awards

provisions that treat particular days as public holidays in addition to those declared by State and Territory Governments to be observed generally in the relevant community as public holidays.

This means that an award could not include as public holidays additional days which may be or may have been treated as ‘extra’ public holidays in a particular industry.

 

1.9               Proposed paragraph 89A(2)(i) is not intended to preclude an award from providing for the substitution of different days to be observed as public holidays or from providing for arrangements to be made at the workplace or enterprise level for the substitution of different days to be observed as public holidays.

 

Item 7 - Paragraph 89A(2)(j)

 

1.10           This item would replace existing paragraph 89A(2)(j) (which includes ‘allowances’ as an allowable matter) with a new provision limiting the type of allowances that may be included in an award to monetary allowances payable to employees for expenses incurred in the course of their employment, particular responsibilities or skills that are not taken into account in the employee’s rate of pay or for disabilities associated with the performance of particular tasks (for example, handling hazardous materials, or work in particular conditions or locations, for example remote locations).

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

 

10.       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 4 and 7]. 

 

11.       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 cease d as d . The 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.  

 

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

Item 10 - Subsection 137(1)

Item 11 - Subsection 138(1)

Item 12 - Subsection 138(2)

Item 13 - Subsection 138(5)

Item 14 - Subsection 138(6)

Item 15 - Section 139

Item 16 - Section 140  

 

Item 8 - Paragraph 89A(2)(m)

 

1.11           Existing paragraph 89A(2)(m) allows awards to provide for redundancy pay.  Item 8 would amend the paragraph to limit the circumstances in which an award may provide for redundancy pay to circumstances in which an employee’s employment has been terminated at the initiative of the employer on the grounds of operational requirements .   As is the case with existing paragraph 89A(2)(m), neither new paragraph 89A(2)(m) nor subsection 89A(6) would operate to allow the inclusion in awards of provisions which affect the capacity of an employer to determine the number or identity of persons whose employment is to be terminated for operational requirements .

 

Item 9 - Paragraph 89A(2)(n)

 

1.12           This item would remove ‘notice of termination’ from the allowable award matters.

Minimum requirements as to notice of termination at the initiative of the employer are set out in Part VIA of the Act.

 

Item 10 - Paragraph 89A(2)(q)

 

1.13           This item would remove ‘jury service’ from the allowable award matters.

 

 

 

 

Item 1 1 - After paragraph 89A(2)(s)

 

1.14           This item proposes to amend subsection 89A(2) to insert new paragraph 89A(2) (sa).  New paragraph 89A(2) (sa) will provide for a new allowable award matter - ‘bonuses for outworkers’.  The amendment is required because ‘bonuses’ generally are to be deleted as an allowable award matter (item 2 ), but are to be retained as an allowable award matter for outworkers.

 

Item 1 2 - Paragraph 89A(2)(t)

 

1.15           This item proposes consequential amendments to paragraph 89A(2)(t) to expressly provide that allowable award matter concerns pay and conditions for outworkers, other than bonuses, which are fair and reasonable in comparison with the pay and conditions specified in a relevant award or awards for employees who perform the same kind of work at an employer’s commercial or business premises.

 

1.16           The amendments proposed by items 1 1 and 1 2 are designed to ensure that outworkers in the clothing industry who are paid in accordance with payment by results systems do not lose access to that mode of remuneration.

 

Item 13 - At the end of subsection 89A(3)

 

1.17           This item would amend subsection 89A(3) by providing that the Commission’s power to make or vary an award dealing with the matters in subsection 89A(2) is limited to making  minimum rates awards that provide for basic min imum entitlements.  This amendment reinforces the objects of ensuring that awards act as a safety net of basic minimum wages and conditions of employment to help address the needs of the low paid, that awards do not provide for wages and conditions of employment above the safety net and do not operate as a disincentive to agreement making.

 

Item 1 4 - After subsection 89A(3)

 

1.18           Proposed new subsection 89A(3A) would clarify the scope of the allowable award matters set out in subsection 89A(2) by expressly providing that certain matters are not within the scope of the allowable matters .  However, the range of ‘non-allowable’ matters is not confined to the matters listed in subsection 89A(3A).  The list of matters set out in proposed new subsection 89A(3A) is simply intended to provide greater certainty as to the status of the matters listed in that provision.

 

1.19           Proposed new paragraph 89A(3A)(a) would provide that transfers between work locations do not come within the scope of the allowable award matters.  This provision is intended to remove from the scope of awards provisions such as those setting out conditions applicable to transfers or selection for transfer from one work location to another.  It is not intended to prevent the inclusion of provisions that permit the transfer of employees to a work location other than their usual location where the employer is not able to usefully employ them because of any strike, breakdown of machinery or any stoppage of work for any cause for which the employer cannot reasonably be held responsible.

 

1.20           Proposed new paragraph 89A(3A)(b) would provide that matters pertaining to training and education, such as participation in training activities, leave for training or study purposes and fees (except in relation to leave and allowances for trainees and apprentices) do not come within the scope of the allowable award matters.

 

1.21           Proposed new paragraph 89A(3A)(c) would provide that requirements for the recording of employees’ work times do not come within the scope of the allowable award matters.  Section

353A of the Act provides for the making of regulations in relation to employment records which may include records of the hours worked by employees.

 

1.22           Proposed new paragraph 89A(3A)(d) would exclude accident make up pay from the scope of the allowable award matters.  Minimum standards applicable to work-related injuries would continue to be regulated by State or Territory legislation or, in some cases, by federal legislation.

 

1.23           Proposed new paragraph 89A(3A)( e ) would exclude from the scope of the allowable award matters dispute settling procedures that provide for an organisation of employers or employees to participate in, or represent an employer or employee in the whole or part of the dispute settling process but do not allow the employer or the employee the right to represent their own interests or to choose a representative other than a particular organisation or organisations.   This limitation is not intended to exclude organisations from involvement in dispute settling procedures, but rather to ensure that award-based procedures provide employers and employees with choice as to representation.

 

1.24           Proposed new paragraph 89A(3A)( f ) would provide that transfers from one type of employment to another type of employment do not come within the scope of the allowable award matters.   ‘Type of employment’ refers to categories such as full-time employment, casual employment, regular part-time employment and shift work [see paragraph 89A(2)(r)].  It is not intended to refer to types of work or duties (as distinct from types of employment) and would not preclude the inclusion of award provisions that permit the transfer of employees to different duties where the employer is not able to usefully employ them to perform their usual duties because of any strike, breakdown of machinery or any stoppage of work for any cause for which the employer cannot reasonably be held responsible.

 

1.25           Proposed new paragraph 89A(3A)( g ) would exclude from the scope of the allowable award matters the number or proportion of employees that an employer may employ in a particular type of employment or classification.  This means, for example, that an award is not permitted to include provisions that impose, or would have the effect of imposing, a limit on the number of persons that may be employed in a particular type of employment or classification, whether by imposing a quota on that employment type or classification or requiring the number of persons (or minimum or maximum number of persons) in a particular type of employment or classification to be determined by reference to the number of persons employed in another type of employment or classification.

 

1.26           Proposed new paragraph 89A(3A)( h ) would exclude from the scope of the allowable award matters prohibitions (whether direct or indirect) on an employer employing persons in a particular type of employment or classification.  This limitation is not intended to preclude an award from including provisions that stipulate that particular competencies, qualifications or licences must be held in order to perform certain duties.

 

1.27           Proposed new paragraph 89A(3A)( i ) would exclude from the scope of the allowable award matters provisions setting maximum or minimum hours of work for regular part-time employees.   This paragraph would have the same effect as existing paragraph 89A(4)(b).

 

 

 

Item 1 5 - Subsection 89A(4)

 

1.28           This item would repeal subsection 89A(4), which provides that the Commission’s powers to make an award in relation to the matters covered by paragraph (2)(r) does not include the power to limit the number or proportion of employees that an employer may employ in a particular type of employment or to set minimum or maximum hours of work for regular part-time employees.   These qualifications on the allowable award matters are to remain in place but would be covered by new paragraphs 89A(3A)( g ), 89A(3A)( h ) and 89A(3A)( i ).

 

Item 1 6 - Subsection 89A(5)

 

1.29           This amendment is consequential upon the repeal of subsection 89A(4) [ i tem 1 5 of this

Schedule].  It replaces a reference to paragraph 89A(4)(b) with a reference to the corresponding new paragraph 89A(3A)( i ).  

 

1.30           This item also includes a note to insert a sub section heading “Other provisions that the Commission may include in an award” above subsection 89A(5).   This will be the heading for subsections 89A(5), 89A(6) and proposed subsection 89A(6A).

 

Item 17 - Subsection 89A(6)

 

1.31           This item would amend subsection 89A(6) to limit the scope of ‘incidental’ provisions that may be included in an award to those provisions that are essential for the purpose of making particular clauses relating to allowable matters operate in a practical way.  That is, to be included in an award under this subsection, a provision must be both incidental to an allowable matter and essential to the operation of a particular award clause.  This provision would allow the Commission to includ e in awards provisions that are required to ensure the practical operation of clauses dealing with allowable matters, but would also ensure the practical operation of matters is not expanded, thereby recognising that awards should act as a safety net of basic minimum wages and conditions of employment.

1.1                         12.       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 4 to 7.

 

 

Item 18 - After subsection 89A(6)

 

1.32           This item would insert new subsection 89A(6A) to clarify that subsection 89A(2) does not preclude awards from including machinery provisions such as  definitions, arrangements, commencement date, term and parties bound.

 

Item 1 9 - After subsection 89A(8)

 

1.33           This item would insert new subsection 89A(8A) to make it clear that subsection 89A(2) does not preclude awards from including provisions that are allowed by subsection 113A and  subsection 143(1C) of the Act, such as enterprise flexibility and facilitative provisions .

 

Item 20 - Subsection 113A(2)

 

1.34           This item repeals subsection 113A(2) which will no longer be necessary because of the amendment proposed in Item 19 which would have the effect of ensuring that the capacity of the Commission to include enterprise flexibility provisions in an award is not limited by subsection 89A(2).

 

 

Item 21 - Subsection 120A(4)  

 

1.35           This item would amend subsection 120A(4) so that exceptional matters orders may only be made by a   Full Bench of the Commission .  At present, a single Commissioner may make an exceptional matters order that relates to a single business.

 

1.1                         Item 17 - After section 170MJ  

 

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

 

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

 

 

Part 2 - Application, transitional and savings provisions

 

Item 22 - Application of Part 1

 

1.36           This item proposes that the amendments made by items 1 to 21 of this Schedule will apply in relation to an industrial dispute that the Commission began to deal with before the c ommencement of th ose items , or begins to deal with after commencement of these items .

 

Item 23 - Transitional provision - review of awards

 

1.37           This item requires the Commission to review all awards within a period of 12 months to ascertain whether they contain provisions that may no longer be included as allowable award matters due to the amendments to section 89A made by Part 1 of this Schedule.   After considering appropriate alternatives, the Commission may vary an award to r emove those provisions no longer allowable under section 89A.

 

1.38           This item provides that the Commission may review awards for the purposes of this Bill at the same time as it reviews awards for other purposes.

 

1.39           T his item also provides tha t at the end of 12 months after the commencement of this Schedule , any provision in an award which is no longer an allowable award matter due to the amendments in this Schedule, w ill cease to have effect . 

 

1.40           Further, the item provides that t he Commission may vary any award to remove any provision which has ceased to have effect because the end of the transitional period has been reached.

14.       New section 170MJA would provide that an employee or employees who wish to initiate a bargaining period under section 170MI to negotiate an agreement, or who wish to give an employer notice of intention to take industrial action under section 170MO, but want to remain anonymous from their employer, may appoint an agent to initiate the bargaining period or to issue the notice on their behalf.  This provision is consistent with proposed 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. 

 

15.       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.  

 

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

 

16.       New subsection 170MJB(1) would further protect the identity of employees who appoint agents under proposed 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)]. 

 

17.       Under proposed 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 proposed section 170MJA. The proposed maximum penalty for this offence is 6 months imprisonment. 

 

18.       Proposed exceptions to this prohibition on disclosure are: if the disclosure is 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 in the course of performing their functions or duties [subsection 170MJB(4)]. 

 

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

 

20.       Definitions of the terms protected information and Registry official, that are used in new section 170MJB, are contained in subsection 170MJB(6). 

 

Item 18 - At the end of subsection 170ML(7)  

 

21.       This item proposes to amend existing subsection 170ML(7) by inserting a reference to proposed Division 8A.  This amendment would ensure that industrial action would only be protected if the new provisions regarding protected action ballots in proposed 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 proposed section 170MQ [item 21].

 

New item 18A - Subsection 170MO(2)

New item 18B - After subsection 170MO(2)

 

This amendment is consequential upon a change to proposed subsection 170NBCI(5) [see Amendment No. 29], which would allow the Commission, when ordering a protected action ballot, 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.

 

The amendment will ensure that the notice requirements in section 170MO reflect the possibility that more than 3 working days’ notice may be required in appropriate exceptional circumstances, by providing for the required written notice to be given (ie, 3 working days written notice or such longer period, of up to 7 days, ordered by the Commission when issuing a protected action ballot order).

 

Item 19 - Subsections 170MO(5) and (6)  

 

22.       This item would amend the requirements for a notice of intended industrial action or lockout.

 

23.       The amendments proposed to subsection (5) are designed to ensure that notices contain adequate detail of intended action.  A notice would be required to provide details of:

 

· the precise nature and form of the intended action;

 

· the day or days upon which it is proposed that the action will take place; and

 

· the duration of the intended action. 

 

24.       Subsection 170MO(6) currently 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. 

 

25.       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 this situation, notice by an employer or by a union or employees could be given once the bargaining period has commenced. 

 

This amendment would replace item 19 of the Bill as introduced with a new item 19.

 

Item 19 of the Bill as introduced would replace the existing requirements for the content and timing of notice of intention to take protected action in subsections 170MO(5) and (6).

 

This amendment would retain the proposed changes to subsection (6) (which relates to when notice may be given), but not those to subsection (5) (which proposed detailed notice requirements).  The effect of this amendment is that the content of the written notice required to proceed protected industrial action will remain as it is in the Act; that is, notice must address the nature of the proposed action and the day on which it will begin .

 

Item 20 - Subsections 170MP(1) and (2)

 

26.       This item proposes to repeal existing paragraphs 170MP(1)(b) and (2)(b), which provide that industrial action is not protected unless the organisation or employees taking action have genuinely tried to reach agreement.  These paragraphs 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 proposed section 170NBCF [item 23].

 

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

 

Item 21 - Section 170MQ  

 

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

 

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

 

29.       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 4 and 5].

 

30.       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 23]. 

 

Amendment No. 3 would amend section 170MW to reflect the changes to the requirements for notice of intention to take industrial action being made by other amendments (see Amendment Nos. 1, 4-7 and 29) to allow the Commission to extend the requirement for three working day’s written notice to up to 7 working days in exceptional circumstances.

 

Proposed new subsection 170MW(11) 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 proposed new section 170MWE - to be inserted by item 22 of the Bill), that written notice of up to 7 working days be given instead of the usual 3 working days.

 

 

 

 

 

Item 22 - After section 170MW

 

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.         As the dates specified in the ballot as to when action is proposed to begin or be taken may have passed during the period of suspension, the section would also provide that the period of suspension, including any such dates, is to be ignored in determining when protected action may be taken (subsection 170MWE(2)).  This provision must be considered in conjunction with proposed subsection 170MWE(4) which would make it clear that the details of proposed action in the ballot may only be ignored in relation to such dates; any action taken following the end of a suspension period would still be required to be consistent with the type and duration of action specifically endorsed in the ballot.

 

34.         In addition, parties wishing to recommence action following the end of a period of suspension would be required to give 3 working days’ notice of their intention to take action, detailing the nature, intended days and intended duration of the action, consistent with the requirements of existing subsection 170ML(2).

 

These amendments relate to the proposed change to the notice period requirements, being made by other amendments to allow the Commission to extend the requirement for three working day’s written notice to up to 7 working days in exceptional circumstances.

 

Amendment Nos. 4 and 5 would amend proposed section 170WE to ensure that the requirement to give written notice after suspension of a bargaining period ends reflects the changes to be made to section 170MW by Amendment No. 3. 

 

The possibility that more than 3 working days’ notice may be required in appropriate exceptional circumstances (by reason of an order by the Commission when suspending a bargaining period under section 170MW) is to be addressed by providing for the required written notice to be given.

 

Amendment Nos. 6 and 7 make consequential amendments to references to the notice requirement in the two examples provided to explain the operation of section 170MWE.

 

Item 23 - After Division 8 of Part VIB  

 

35.       This item proposes to insert a new Division into 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 ensure that before employees and organisations of employees take industrial action, the action is authorised by the employees concerned in a fair and democratic ballot.  (A protected action ballot would not be required in the case of action taken in response to a lockout by the employer.) 

 

Amendment No. 8 would amend the object of proposed new Division 8A of the Act (the Division that would provide for protected action ballots).

 

The revised object is designed to highlight the focus of new Division 8A on providing 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).

 

The changes proposed to subsection 170NBA(1) as introduced will highlight the facilitative nature of the protected action ballot provisions

 

New section 170NBAA - Definitions  

 

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

 

The Bill as introduced includes a requirement that each application nominate a proposed ballot agent.  That requirement, contained in proposed section 170NBBA of the Bill, is to be removed (see Amendment No. 14).  Amendment Nos. 9-13 would make changes to the definitions in proposed section 170NBAA of the Bill consequential upon this change.

 

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. 

 

39.       Who could make the application would depend on who initiated the bargaining period under section 170MI.  Under new subsection 170NBB(2), if the bargaining period was initiated by a union, then that union could apply to the Commission for a ballot order.  If the bargaining period was initiated by an employee or employees seeking a non-union agreement, 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 proposed section 170NBBB).]

 

41.       The term ‘prescribed number’ is defined in proposed section 170NBAA.  The ‘prescribed number’ would vary depending on the size of the workplace.  If there are 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 are 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 are 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 bargaining period to which the proposed ballot relates;

· 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 names of the applicant, applicants or applicant’s agent;

· the proposed timetable for the ballot;

· the name of the ballot agent nominated by the applicant to conduct the ballot;

· the proposed voting method for the ballot;

· the question or questions to be put to the ballot, including:

-           the precise nature and form of the proposed industrial action to be voted on;

-           the day or days on which it is intended the proposed action would take place;

-           the duration of the proposed industrial action; and

· the relevant employers name, addresses, telephone and fax numbers. 

 

Amendment No. 14 proposes to amend proposed section 170NBBA of the Bill by simplifying the requirements for an application for a protected action ballot order. 

 

 

 

New subsection (1) sets out the matters that must be included in an application:

 

· the question or questions to be put to the ballot; and

 

· details of the types of employees to be balloted.

 

The level of detail that the Bill as introduced required in the ballot question is to be reduced to reflect the current notice requirements in section.  As a result, ballot questions will be required to address the nature of the proposed industrial action and the day when it is to begin, rather than the more detailed specifications in the Bill as introduced.

 

Rather than requiring an application to nominate a ballot agent, subsection (2) would allow an application to include a nomination, although the question of the ballot agent is ultimately for the Commission to determine.

 

In addition to the matters listed in proposed subsections (1) and (2), an application must address any matters required by the Rules of the Commission (proposed subsection (3) would give the President of the Commission the power to make such rules which, by reason of section 48 of the Act would be disallowable instruments for the purposes of the Acts Interpretation Act 1901 ).

 

New section 170NBBB - Material to accompany application  

 

44.       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. 

 

45.       Under new subsection 170NBBB(6), it will be an offence to make a statement in the declaration required by new section 170NBBB, reckless as to whether it 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  

 

46.       This new section would require the applicant to give a copy of the application to the relevant employer and the ballot agent nominated in the application 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 proposed section 170NBBB, such as the document containing the names of applicant employees where the applicants are represented by an agent. 

 

Like Amendment Nos. 9-13, Amendment No. 15 is consequential upon removing the requirement that an application for a ballot order nominate a ballot agent to conduct it.

 

Amendment No. 15 would replace proposed section 170NBBC.  As a result of this amendment, an applicant for a ballot order would be required to give notice of an application within 24 hours to a proposed ballot agent only if one was nominated in the application.  (As with section 170NBBC as introduced, notice to the employer is also required.)

 

New section 170NBBD - Joint applications  

 

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

 

48.       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)].  Preventing applicants withdrawing their name from an application after the determination of the application is relevant to the fixing of liability for the cost of conducting a ballot under proposed section 170NBF (see below). 

 

49.       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 to notify parties of application  

 

50.       To assist in ensuring the speedy determination of applications, this new section would require the Commission to notify all parties of the procedure for dealing with an application for a ballot order, as soon as practicable after an application is lodged.  This would include notifying the parties that they may make submissions to the Commission about the application, whether submissions should be made orally or in writing, and the cut off time for making submissions. 

 

This item would replace proposed section 170NBC, which requires the Commission to advise parties about the procedure to be followed in dealing with an application.

 

As a result of the amendment, such notification will not be mandatory.  Rather, the Commission will have a discretion to notify parties of the procedure to be followed where doing so would not delay, and may expedite, the determination of the application .

 

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

 

51.       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 possible, to determine an application for a ballot order within 4 working days of the application being made. 

 

52.       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 proposed 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.

 

The Bill as introduced requires the Commission, as far as possible, to deal with applications for ballot orders and related orders within 4 working days (see proposed section 170NBCA).

 

The combined effect of these amendments would be to expedite the process of dealing with ballot applications from 4 days to two days, as far as this is reasonably possible.

 

This is a technical amendment.

 

Amendment No. 19 would insert a note after proposed subsection 170NBCA(1) of the Bill 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.

 

These amendments are designed to ensure that those with a relevant interest in an application have a reasonable opportunity to be heard.

 

Amendment No. 20 would amend proposed section 170NBCA to ensure that, despite the reduced timeframe for dealing with ballot applications, the Commission does not deal with an application for a ballot order until 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.)

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

 

53.       Under new subsection 170NBCB(1), a party to a ballot application (the applicant, the employer or the ballot agent), a union member (where the applicant is a union) or employee (where the applicant is an employee or employees) who would be subject to the proposed agreement, will be entitled to make submissions to the Commission about the application, or about the conduct of the protected action ballot.  Also, any of these persons will be entitled to apply to the Commission for directions about the application or the conduct of the ballot. 

 

54.       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. 

 

These amendments are designed to ensure that those with a relevant interest in an application have a reasonable opportunity to be heard.

 

Amendment 22 would amend proposed section 170NBCB to include references to ballot agents among those who may be heard in relation to a ballot application (proposed new subsection (1A)) or an application for directions in relation to the conduct of a ballot (proposed new subsection (1B)).

 

Amendment No. 21 would insert a note after proposed subsection 170NBCB(1) of the Bill 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.

 

New section 170NBCC - Commission may give directions  

 

55.       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. 

 

This is a technical amendment to section 170NBCC to make clear that directions issued by the Commission in connection with a protected action ballot are orders of the Commission.

 

Amendment No. 24 proposes to amend section 170NBCC (which relates to the Commission’s power to issue directions in relation to the conduct of protected action ballots), to place emphasis on the need for ballots to be conducted expeditiously once ordered by the Commission.

 

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

 

Proposed 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  

 

56.       Proposed 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).

 

57.       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. 

 

Like Amendment No. 24, these amendments to proposed section 170NBCE (which relates to Commission procedure in the case of multiple ballot applications) are designed to ensure that the Commission deals with ballot applications quickly.

 

Proposed new paragraph 170NBCE(1)(c) would provide that multiple applications should only be heard together if the Commission considers that doing so would not cause unreasonable delay to the determination of any of the applications .

 

Similarly, proposed new paragraph 170NBCE(2)(d) would ensure that the Commission’s power to order that more than one ballot to be held at the same time is exercised in light of the need to avoid unreasonable delay in the conduct of any of the ballots.

 

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

 

58.       New subsection 170NBCF(1) sets out the matters that would be required to be established to the Commission’s satisfaction before the Commission could grant an application for a ballot order.  The matters are:

 

· a bargaining period has been initiated and has commenced;

· the application was accompanied by a declaration by the applicant that the proposed industrial action is not for the purposes of supporting or advancing claims to include an objectionable provision in an agreement (new subsection 170NBBB(4) above);

· if the application is by one or more employees, that the application is supported by at least the prescribed number of employees (new subsection 170NBB(3) above);

· the other parties have received a copy of the application as required by new section 170NBBC above;

· the nominal expiry dates of all certified agreements, old IR agreements and section 170MX awards applying to the union members or employees who would be eligible to vote in the ballot have passed;

· the manner in which the ballot would be conducted will ensure the secrecy and security of employees’ votes, and would result in a fair and democratic ballot to the extent that the applicant can guarantee this (this will normally require that the ballot be conducted as a postal vote);

· the proposed ballot timetable is appropriate (under proposed section 170NBCJ the Commission may develop guidelines which would assist in determining this issue);

· the question or questions to be put to employees in the ballot meet the requirements of new paragraph 170NBBA(g), that is, the questions must state the precise nature and form of the proposed industrial action, the day or days on which it is proposed that the action will take place and the duration of the proposed industrial action;

· the ballot agent nominated in the application will conduct the ballot in accordance with the requirements of Division 8A and with any orders or directions made by the Commission;

· if the ballot agent nominated in the application is not the Australian Electoral Commission, that the ballot agent has consented to conduct the ballot;

· if a party has submitted to the Commission that the applicant has not genuinely tried to reach agreement with the employer, that there are not sufficient grounds for accepting this submission; and

· any other matter prescribed by the regulations. 

 

59.       If the Commission were to be satisfied of all these matters except for those dealing with the proposed ballot method, timetable or ballot agent, the Commission would be required to give the applicant an opportunity to amend the application in respect of these matters.  (The Commission has a general discretion to allow a party to vary any other element of its application.)

 

60.       To help ensure the accuracy of a ballot roll and the anonymity of Australian Workplace Agreement employees and union members, proposed subsection 170NBCF(3) would require the Commission to consider whether it should make an order under new section 170NBCK before it grants an application.  New section 170NBCK would allow the Commission to order the applicant or the employer of the relevant employees to provide the Commission with a list of employees who would be eligible to vote in the proposed ballot, and any other information that the Commission reasonably requires to assist in compiling the roll of voters for the proposed ballot. 

 

61.       New subsection 170NBCF(4) would require the Commission to grant an application if it was satisfied that all the matters in subsection (1) have been complied with, and the Commission has considered the matter in subsection (3).

 

62.       New subsection 170NBCF(5) would provide that even if subsection (4) would otherwise require the Commission to grant an application, the Commission is nonetheless able to refuse to grant the application 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 Division 8A. 

 

Amendment No. 27 would replace section 170NBCF, which sets out the circumstances in which an application for a ballot is to be granted.

 

New section 170NBCF would significantly simplify the proposed prerequisites for the Commission granting an application for a ballot order.  As a result of this amendment, the prerequisites would be:

 

· genuine bargaining has occurred, and is continuing to occur, during the relevant bargaining period; and

 

· the nominal expiry dates of all certified agreements, old IR agreements and section 170MX awards applying to the union members or employees who would be eligible to vote in the ballot have passed.

 

Nonetheless, it will be open to the Commission to refuse an application if granting the application would be inconsistent with the objects of the protected action ballots provisions (proposed 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.  

 

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

 

63.       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  

 

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

 

65.       An order would be required to specify the ballot be conducted by postal vote, unless another method was proposed in the application for the ballot order and the Commission is satisfied that this other method would ensure the secrecy and security of votes and a fair and democratic ballot, and that, if the ballot was to be conducted by attendance vote, that the voting could take place in work breaks or otherwise outside hours or employment [subsection 170NBCI(2)].

 

66.       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)]. 

 

This amendment would:

 

· ensure that the requirements for matters that need to be addressed in a ballot order under proposed section 170NBCI reflect other changes being made by these amendments;

 

· allow greater flexibility to the Commission in deciding the form of the ballot (the Bill currently has a strong preference in favour of postal ballots), while still requiring the Commission to consider the benefits of a postal ballot.

 

The wording of proposed paragraph 170NBCI(1)(e) is to be revised slightly to reflect changes proposed elsewhere in relation to ballot agents.

 

The amendments to proposed paragraph 170NBCI(1)(f) would ensure that the questions to be put in a protected action ballot address the nature of the proposed industrial action and the day when it is to begin, rather than the more detailed specifications in the Bill as introduced.

 

New subsection (2) would ensure that the Commission was satisfied about the adequacy of any voting method it ordered, and subsection (2A) would require the Commission to consider the benefits of a postal ballot in determining what form of ballot should be ordered.

 

New section 170NBCJ - Guidelines for ballot timetables  

 

67.       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 other ballot agents in developing any guidelines under this section. 

 

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

 

68.       The only employees who would be eligible to vote in protected action ballots are those who would be subject to the proposed agreement who are not party to an Australian Workplace Agreement whose nominal expiry date has not passed 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.  

 

69.       The Commission would be able to require this 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  

 

70.       This new section would provide for the compilation of the roll of voters by the Commission or, alternatively, by authorised ballot agent.

 

New section 170NBCM - Eligibi lity to be included on the roll  

 

71.       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. 

 

72.       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.

 

73.       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). 

 

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

 

74.       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. 

 

75.       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. 

 

76.       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, or a person whose name is on the roll of voters for the ballot, 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. 

 

77.       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 persons vote was not counted [section 170NBCN(4)]. 

 

New section 170NBCO - Variation of order  

 

78.       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. 

 

79.       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  

 

80.       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 - Complia nce with orders and directions  

 

81.       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  

 

82.       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 (the applicant, employer and ballot agent). 

 

New Subdivision D - Conduct and results of protected action ballot  

 

New section 170NBD - Conduct of ballot  

 

83.       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 proposed section 170NBAA).

 

84.       The effect of this section is that a ballot would be required to be conducted by the ballot agent authorised by the Commission in the ballot order.  If someone else conducted the ballot, then it would not comply with the requirements of proposed Division 8A, and any industrial action taken following such a ballot would not be protected industrial action under amendments proposed to section 170MQ [see item 21]. 

 

New section 170NBDA - Form of ballot paper  

 

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

 

· the name of the applicant or applicant’s agent;

· 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 details of:

-           the precise nature and form of the intended industrial action to be voted on;

-           the day or days on which it is intended that the proposed industrial action will take place;

-           the duration of the proposed industrial action;

· the statement set out in proposed Schedule 5 [to be inserted by item 33]; and

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

 

This amendment proposes to simplify the requirements for the form of the ballot paper.

 

The proposed change to paragraph 170NBDA(d) is to bring these requirements into line with the matters that the Commission must include in the order under section 170NBCI as amended by Amendment No 28.

 

The proposed change to paragraph 170NBDA(e) is required as it is now proposed not to prescribe the form of the statement that the vote is secret and that the voter is free to choose to vote for or against the action proposed.

 

Amendment No. 38 - item 23, page 26 (line 2)

 

This amendment would effect a change in terminology consequential upon the changes proposed by Amendment No. 14.

 

New section 170NBDB - Who can vote  

 

86.       This new section would provide that a person may not 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  

 

87.       This new section would require the 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 170NBDD - Effect of ballot  

 

88.       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 proposed Division 8A;

· at least 50% of persons on the roll of voters for the ballot established under proposed section 170NBCL voted in the ballot; and

· more than 50% of the votes cast in the ballot approved the industrial action.

 

This amendment would provide the Commission with the flexibility to vary certain prerequisites for taking protected action, in exceptional circumstances:

 

· the period of written notice required for taking protected action (from the 3 working days provided for in section 170MO, to up to 7 working days); and

 

· the quorum required for a valid ballot (from the 40% that it is proposed will be provided for in section 170NBDD - see notes to Amendment No. 40 - to a lower percentage).

 

The Bill does not attempt to set out the range of factors which might, in relation to a particular ballot, constitute exceptional circumstances.  This will be a matter for the Commission on a case by case basis.  However, as is made clear by the use of ‘exceptional’, it is envisaged that the standard requirements would apply in the vast majority of cases.  

 

Amendment No. 30 - item 23, page 22 (line 5)

Amendment No. 31 - item 23, page 23 (line 30)

Amendment No. 32 - item 23, page 23 (line 33)

Amendment No. 33 - item 23, page 24 (line 8)

Amendment No. 34 - item 23, page 24 (line 11)

Amendmen t No. 35 - item 23, page 25 (line 5)

Amendment No. 36 - item 23, page 25 (line 7)

 

The Bill as introduced includes a requirement that each application nominate a proposed ballot agent.  That requirement, contained in proposed section 170NBBA of the Bill, is to be removed (see Amendment No. 14). 

 

This change necessitated removal of the definition of ballot agent (as a person is not properly referred to as a ballot agent until authorised by the Commission).

 

Amendment Nos. 30-36 would make consequential changes to references in the Bill to ballot agents necessitated by these changes.

 

This amendment to proposed section 170NBDD (together with the new subsection 170NBDD(3) that is to be inserted by Amendment No. 40) relates to the requirement that a minimum percentage of those eligible to vote must vote for a ballot to validly authorise the taking of protected action.

 

The Bill sets the quorum at 50% of those on the roll of voters.  This quorum is to be changed to a requirement that the prescribed percentage cast a vote.  (The term prescribed percentage is to be defined in new subsection 170NBDD(3) that is to be inserted by Amendment No. 40).

 

Amendment No. 40 - item 23, page 26 (after line 14)

 

This amendment would insert two new subsections into section 170NBDD of the Bill as introduced.

 

Proposed new subsection (2) would clarify that protected industrial action authorised in relation to a particular bargaining period may only be taken during that bargaining period.  Protected action that is authorised but had not been taken when a bargaining period ends cannot be taken during a subsequently notified bargaining period.  A fresh protected action ballot would be required to authorise any industrial action during that subsequent bargaining period.

 

Proposed new subsection (3) would insert a definition of the term prescribed percentage for the purposes of the requirement that a minimum percentage of those on the roll of voters must cast a vote for a ballot to validly authorise protected action.

 

The standard requirement is to be reduced from 50% (as proposed in the Bill as introduced) to 40%, with the possibility of a lower percentage if specified by the ballot order (see proposed subsection 170NBCI(4) - to be inserted by Amendment No. 29).

 

New section 170NBDE - R egistrar to record questions put in ballot and results  

 

89.       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 ballot agent. 

 

New Subdivision E - Ballot agents  

 

New section 170NBE - Register of ballot agents  

 

90.       This section would require the Industrial Registrar to maintain a register of ballot agents who may be authorised by the Commission to conduct ballots under Division 8A.  Before entering a person’s name on the register, the Registrar will be required to be satisfied that the person is a fit and proper person to conduct such ballots. 

 

91.       In deciding whether a person is a fit and proper person, new subsection 170NBE(3) would require the Registrar to have regard to the following factors:

 

· whether the person is capable of ensuring the security and secrecy of votes cast in a ballot, and ensuring that a ballot is fair and democratic;

· whether the person is likely to maintain confidentiality of the records that they are required to keep in relation to the ballot;

· if the person is a natural person, whether the person has contravened a prescribed law within the last five years; and

· if the person is a body corporate, whether the body or any of its officers or employees have contravened a prescribed law within the last 5 years. 

 

92.       New subsection 170NBE(4) would provide that where a person has contravened a prescribed law in the last 5 years, the Registrar would not be able to include the person on the register of ballot agents unless the person has been granted leave under proposed section 170NBEA to seek to have their name included on the register.

 

93.       A body corporate ballot agent will be prohibited authorising a person who has contravened a prescribed law in the last 5 years to participate in conducting a ballot [new subsection 170NBE(5)].

 

94.       Proposed subsection 170NBE(6) defines prescribed law for the purposes of new section 170NBE.  A ‘prescribed law’ would include laws the contravention of which is punishable by imprisonment for more than 12 months, those involving dishonesty punishable by imprisonment for more than 6 months, and provisions of the Act dealing with freedom of association, protected action ballots and other forms of ballots. 

 

Amendment No. 41 - item 23, page 26 (line 19)

Amendment No. 42 - item 23, page 26 (line 22)

Amen dment No. 43 - item 23, page 26 (line 24)

 

The Bill as introduced included a requirement that each application nominate a proposed ballot agent.  That requirement, contained in proposed section 170NBBA of the Bill, is to be removed (see Amendment No. 14). 

 

This change necessitated removal of the definition of ballot agent (as a person is not properly referred to as a ballot agent until authorised by the Commission).

 

Amendment Nos. 41-43 would make consequential changes to references necessitated by these changes .

 

New section 170NBEA - Leave to be included on register  

 

95.       Under new subsection 170NBEA(1) a person who has contravened a prescribed law, as defined in new subsection 170NBE(6), within the last 5 years would be able to apply to the Federal Court for leave to seek to have their name entered on the register of ballot agents maintained by the Industrial Registrar.  New subsection 170NBEA(2) would allow the Court to impose any conditions or restrictions as the Court thinks fit when granting leave under the section.  New subsection 170NBEA(3) would allow the Court to revoke leave at any time on the application of the Industrial Registrar. 

 

New section 170NBEB - Removal from register  

 

96.       This new section would allow the Industrial Registrar to remove a person’s name from the register of ballot agents if he or she is satisfied that the person was not a fit and proper person to conduct protected action ballots.  Before removing a person’s name, the Registrar is to be required to give the person notice of the intention to remove their name from the register together with reasons in writing, and to give the person a reasonable opportunity to make submissions about the proposed removal. 

The Bill as introduced provided for the Industrial Registrar to maintain a register of ballot agents, and set out criteria for inclusion on the register (see sections 170NBE, 170NBEA and 170NBEB of the Bill as introduced).

 

This amendment would delete the requirement for a register of ballot agents to be retained, and replace it with a requirement that the Commission, in determining who to appoint as a ballot agent, be satisfied of certain matters.

 

The matters of which the Commission must be satisfied are: whether the person is capable of ensuring a secure and confidential ballot that uses fair and democratic processes (mirroring requirements in subsection 170NBE(3)(a) of the Bill as introduced), and whether the person is a ‘fit and proper person’ to be an authorised ballot agent. 

 

The regulations may specify criteria relevant to whether a person is a ‘fit and proper person’.

 

New subdivision F - Funding of ballots  

 

New section 170NBF - Liability for cost of ballot  

 

97.       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. 

 

New section 170NBFA - Partial reimbursement of cost of ballot  

 

98.       This new section would allow an applicant to seek reimbursement of some of the costs of holding a ballot under Division 8A from the Commonwealth. 

 

99.       If an applicant for a protected action ballot notifies the Industrial Registrar of the costs incurred by the applicant in holding the ballot within a reasonable time after completion of the ballot, the Industrial Registrar would then be required to determine what proportion of these costs were reasonably and genuinely incurred by the applicant in holding the ballot (the ‘reasonable ballot cost’) [new subsection 170NBFA(1)].

 

100.     New subsection 170NBFA(2) establishes that the Commonwealth is liable for 80% of the ‘reasonable ballot cost’.  Where there are joint applicants, new subsection 170NBFA(3) proposes a formula for calculating the proportion of the ‘reasonable ballot cost’ that the Commonwealth would be liable to pay to each joint applicant. 

 

101.     Where joint applicants for a secret ballot request the Commonwealth to reimburse the reasonable costs of the ballot in other than equal proportions, the Commonwealth is to distribute that amount in accordance with the request [new subsection 170NBFA(4)].

 

102.     New subsection 170NBFA(5) would enable 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 proposed 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  

 

103.     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 proposed 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. 

 

104.     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 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. 

 

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

 

106.     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 or authorised ballot agent in the course of performing their functions or duties, if the disclosure was 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. 

 

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

 

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

 

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

 

109.     This new section proposes that where industrial action has been authorised by the results of a ballot, 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 protected.

 

110.     This defence 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.)

 

This amendment proposes to add three new sections into the Bill as introduced 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.

 

Under proposed 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.

 

Proposed section 170NBGBB protects ballot results and the conduct of ballots from challenge where the procedures required by the Act, the regulations or an order of the Commission are complied with other than 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; 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 considers that there is a reasonable basis for the allegation.

 

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

 

Proposed section 170NBGBC makes clear that the limitations in proposed 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  

 

111.     Under new section 170NBGC a 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. 

 

Amendment No. 46 - item 23, page 32 (line 2)

 

This amendment would effect a change in terminology consequential upon the changes proposed by Amendment No. 14.

 

New se ction 170NBGD - Conferral of function on AEC  

 

112.     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.  (If the Commission authorised the AEC to conduct a ballot in a ballot order, the AEC would be required to conduct the ballot.)

 

New section 170NBGE - Regulations  

 

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

 

· the qualifications and appointment of applicant’s agents;

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

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

· the entry and removal of names from the register of ballot agents; and

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

 

This amendment to section 170NBGE of the Bill as introduced is consequential upon removal of the requirement that the Industrial Registrar maintain a register of ballot agents (see Amendment No. 44), as authorisation to make regulations in relation to the entry and removal of names from the register will no longer be required.

 

Item 24 - After paragraph 170ND(d)

Item 25 - At the end of section 170NF

Item 26 - After subsection 178(1)  

 

114.     These items deal with the enforcement of orders and directions under proposed Division 8A [item 23].

 

115.     Item 24 proposes to insert a new paragraph 170ND(da) into the Act.  The new paragraph would specify that proposed section 170NBCQ (requiring compliance with an order or direction made in relation to a protected action ballot), is a penalty provision for the purposes of Division 10 of Part VIB. 

 

116.     Item 25 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; 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.)

 

117.     Item 26 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 section 178(1) (which provides for penalties for breach of Commission awards and orders) would not apply to orders under Division 8A. 

 

Item 27 - At the end of section s 287 and 288  

 

118.     As entitlement to vote in a protected action ballot will be regulated by new Division 8A, item 27 proposes amending sections 287 and 288 to specify that neither section applies to protected action ballots conducted under new Division 8A.

 

119.     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.

 

Item 28 - Section 307  

 

120.     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), and substituting 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 or der  

 

121.     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, recklessly as to whether the statement is false or misleading. 

 

122.     The proposed maximum penalty for offences against new sections 307 and 307A is $1000. 

 

Item 29 - After section 314  

 

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

 

123.     This item would insert a provision similar to existing section 314, which would prohibit a person knowingly or recklessly contravening proposed section 170NBGC (which would require the preservation of ballot papers for one year after completion of the ballot - see item 23). 

 

124.     The proposed maximum penalty for an offence against new section 314A is a $500 fine, 6 months imprisonment, or both.

 

Item 30 - Paragraph 317(5)(a)

Item 31 - Paragraph 317(5)(b)

Item 32 - At the end of section 317  

 

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

 

126.     Item 30 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 7].

 

127.     Item 31 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.]

 

128.     Item 32 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 offences set out in these subsections apply to protected action ballots. 

 

Item 33 - After Schedule 4  

 

129.     This item proposes to add a new Schedule to the Act.

 

New Schedule 5 - Statement to be included on protected action ballot paper  

 

130.     This new Schedule contains a statement that would be included in all ballot papers issued for a protected action ballot under new section 170NBDA [item 23].  The statement would inform employees who receive a ballot paper of their legal rights regarding participation in the ballot and participation in any industrial action that is authorised as a result of the ballot. 

 

 

This amendment would remove item 33 from the Bill.  Item 33 proposed the insertion of a new Schedule 5 into the Act (containing the text of a statement to be included on ballot papers).

 

This amendment is consequential to the changes made by Amendment No. 37 to the ballot paper requirements.

Part 2 - Application and saving

 

Item 34 - Application of amendments  

 

131.     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.

 

132.     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 existing requirements of 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 commencement day; and

· the action is taken within 14 days after commencement. 

 

133.     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 proposed new Division 8A. 

 

Item 35 - Saving  

 

134.     This item deals with secret ballots ordered by the Commission before commence under sections 135(2) and (2B), which would be repealed by items 4 and 5 of this Bill. 

 

135.     If a ballot under these provisions has been ordered by the Commission but the ballot result is not known when the amendments commence (because the ballot has not yet been held or the result of the ballot has not yet been determined), 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.

 

136.     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.)

 

137.     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.

 

138.     If a ballot under the relevant existing provisions is conducted and finalised before the commencing day, then item 34 would apply.