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Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Bill 2003

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2002

 

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

WORKPLACE RELATIONS AMENDMENT (PROHIBITION OF COMPULSORY UNION FEES) BILL 2002 [No. 2]

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment and

Workplace Relations, the Honourable Tony Abbott MP)

 

 



WORKPLACE RELATIONS AMENDMENT (PROHIBITION OF COMPULSORY UNION FEES) BILL 2002 [No. 2]

 

OUTLINE

 

This Bill will amend the certified agreement and freedom of association provisions in the Workplace Relations Act 1996 (WR Act).  The amendments are designed to address clauses in certified agreements that purport to require payment of bargaining services fees as well as conduct designed to compel persons to pay bargaining services fees.

 

The amendments would:

 

·    prevent the Australian Industrial Relations Commission (the Commission) from certifying an agreement that contains a provision requiring the payment of a bargaining services fee; 

·    amend section 298Y to make clear that a clause in a certified agreement is void to the extent that it requires payment of a bargaining services fee; 

·    extend the definition of ‘objectionable provision’ in subsection 298Z(5) so that it includes ‘a provision of a certified agreement that requires payment of a bargaining services fee’.  (This would allow the Commission to remove these clauses on application by a party to the agreement or the Office of the Employment Advocate);

·    prohibit employers and others from engaging in discriminatory or injurious conduct against a person, because he or she has refused to pay, or does not propose to pay, a bargaining services fee;

·    prohibit an industrial association from encouraging or inciting others to take discriminatory action against a person because he or she has refused to pay, or does not propose to pay, a bargaining services fee;

·    prohibit an industrial association from demanding a bargaining services fee (whether the demand is made orally or otherwise) from another person (this does not prevent an industrial association entering into a contract for bargaining services with a non-member, or prevent an industrial association from enforcing payment of a bargaining services fee that is payable to the association under a contract for the provision of bargaining services);

·    prohibit an industrial association from taking action (or threatening to take action) against a person with intent to coerce that person, or another person, to pay a bargaining services fee; and

·    prohibit a person making afalse or misleading representation about another person’s liability to pay a bargaining services fee (new section 298SB).

 

The amendments proposed by Schedule 1 of this Bill would apply equally to fees for bargaining services imposed by trade unions or by employer associations.

 

The Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Bill 2002 was introduced on 20 February 2002 and passed as with Government amendments by the House of Representatives on 16 May 2002.

 

 

 

The Bill was introduced into the Senate on 19 June and later was significantly amended.  The House rejected those amendments on 28 August 2002 and returned the Bill to the Senate on the same day.  The Senate subsequently pressed the amendments, but the Minister informed the House that the Government was unable to accept the Senate’s changes and the Bill was formally laid aside by the House on 18 September 2002.

 

FINANCIAL IMPACT STATEMENT

 

The proposals contained in the Bill are budget neutral.

 

 



NOTES ON CLAUSES

 

Clause 1 - Short Title

 

1.         This is a formal provision specifying the short title of the Act as the Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act 2002 .

 

Clause 2 - Commencement

 

2.         This clause provides that clauses 1 to 3 will commence on the day which this Act receives the Royal Assent and Schedule 1 will commence on the 28 th day after the day on which the Act receives the Royal Assent.

 

Clause 3 - Schedules

 

3.         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 - AMENDMENTS ABOUT BARGAINING SERVICES FEES

 

Part 1 - Amendments

 

Workplace Relations Act 1996

 

Item 1 - Subsection 170LU(2A)

 

1.1       This item would simplify subsection 170LU(2A) of the WR Act by stating that the Australian Industrial Relations Commission (the Commission) must refuse to certify an agreement if it is satisfied that the agreement contains ‘objectionable provisions’.  The effect of this amendment, in combination with the amendment proposed by Item 12, would be to prevent the Commission from certifying an agreement containing a clause requiring payment of a bargaining services fee.  The amendment would also prevent the Commission from varying a certified agreement containing such a clause - paragraph 170MD(3)(b) prevents the Commission from approving a variation in the case where it would not be able to certify the agreement as varied (if it were a fresh application for certification). 

 

Item 2 - Paragraph 170MD(7)(e)

 

1.2       This item is a technical amendment arising as a result of the amendments proposed to section 298Z by Item 12.  Subsection 170MD(7) states that the Commission is not able to vary a certified agreement except in accordance with the provisions set out in its paragraphs.  Existing paragraph (e) refers to section 298Z as dealing with the removal of ‘preference clauses’.  Section 298Z concerns the removal of ‘objectionable provisions’ more generally, and this item will amend paragraph 170MD(7)(e) to reflect this.

 

Item 3 - Subsection 298B(1)

Item 4 - Subsection 298B(1)

 

1.3       These items would insert new definitions into subsection 298B(1) of the WR Act.  Section 298B sets out a number of definitions that are specific to Part XA.

 

1.4       Item 3 would define the term ‘bargaining services’ to mean services provided by or on behalf of an industrial association (i.e. an employer or employee association) in relation to the negotiation, making, certification, operation, extension, variation or termination of an agreement under Part VIB of the WR Act.

 

1.5       Item 4 would define the term ‘bargaining services fee’ as a fee, however described, payable to an industrial association or to someone else in lieu of an industrial association wholly or partly for the provision, or purported provision, of bargaining services.  This definition ensures that provisions of the Bill would apply in cases where an industrial association purports to, but has not in fact, provided bargaining services in respect of which it is claiming a fee.  Membership dues are specifically exempted from the definition.

 

Item 5 - Section 298C

 

1.6       Existing section 298C limits the operation of Part XA to the extent provided for in Division 2, that is, to conduct by organisations registered under the WR Act, in relation to matters covered by the WR Act, to conduct by or which harms a constitutional corporation, and conduct in a Territory. 

 

1.7       Item 5 would amend section 298C to exempt Divisions 6 and 7 of Part XA from these limitations on their application.  The effect of the amendments would be that Divisions 6 and 7 will operate according to their terms, and subject to the Constitution.

 

1.8       Division 6 deals with remedies for breaches of Part XA - as these provisions are ancillary to the prohibitions in Divisions 3, 4, 5 and proposed Division 5A of the Part and operate by reference to them, the limitation in section 298C is unnecessary.  In relation to Division 7, the proposed amendment recognises that the Division does not apply only to prohibited conduct - as a result of the amendments proposed by items 11 and 12, the Division will apply not only to clauses requiring or permitting conduct in contravention of Part XA, but also to clauses requiring the payment of a bargaining services fee.  

 

Item 6 - At the end of subsection 298L(1)

 

1.9       Subsections 298K(1) and (2) of the WR Act prohibit employers and others from engaging in certain discriminatory conduct where the conduct is engaged in for a prohibited reason, or for reasons that include a prohibited reason.  Subsection 298L(1) lists the reasons which are not allowed to be the basis for conduct listed in subsections 298K(1) and (2).

 

1.10     Item 6 would expand the prohibited reasons listed in subsection 298L(1) of the WR Act by inserting a new prohibited reason that an employee or independent contractor has not paid, has not agreed to pay, or does not propose to pay a bargaining services fee.

 

Item 7 - At the end of section 298Q

 

1.11     Section 298Q of the WR Act prohibits certain conduct by industrial associations.  The section prohibits an industrial association from taking or threatening to take action which has the effect of prejudicing a person in his or her employment or possible employment in order to coerce the person to join in industrial action or to dissuade or prevent the person from seeking a secret ballot under an industrial law.

 

1.12     Item 7 proposes to include an additional prohibition on industrial associations acting against employees, independent contractors and others.

 

1.13     Proposed subsection 298Q(2) would prohibit an industrial association from taking, or threatening to take, action that has the effect of prejudicing a person in his or her employment or possible employment, and from advising, encouraging or inciting another person to take such action, if the reason for the action or conduct is that the person does not propose to, has not agreed to pay, or has not paid, a bargaining services fee.

 

Item 8 - At the end of subsection 298S

 

1.14     Section 298S prohibits certain direct and indirect discriminatory conduct against independent contractors by industrial associations.

 

1.15     The section uses the concept of an ‘eligible person’ to refer to an independent contractor.  The term is defined in subsection 298S(1).

 

1.16     Subsection 298S(2) prohibits an industrial association from advising, inciting or encouraging another person to take discriminatory action against an eligible person because the eligible person is not a member of an industrial association.

 

1.17     Under subsection 298S(2) an industrial association is also prohibited from taking industrial action against an employer to coerce the employer to take discriminatory action against an eligible person because the eligible person is not a member of an industrial association.

 

1.18     The subsection also prohibits an industrial association from taking industrial action directly against an eligible person to coerce him or her to join an industrial association.

 

1.19     Item 8 would insert two additional subsections into section 298S.  Proposed subsection 298S(3) would prohibit an industrial association from engaging in the conduct outlined in subsection 298S(2) for a new ‘prohibited reason’.  Proposed subsection 298S(4) would define the new ‘prohibited reason’ for the purposes of subsection 298S(3).  The new prohibited reason would be that the eligible person concerned has not paid, has not agreed to pay, or does not propose to pay a bargaining services fee.

 

Item 9 - At the end of Division 5 of Part XA

 

1.20     This item would insert new sections 298SA, 298SB and 298SBA into Division 5.  Section 298SA would provide a simple prohibition on an industrial association, or an officer or member of an industrial association, from demanding payment of a bargaining services fee from another person.

 

1.21     Subsection 298SA(1A) clarifies that the prohibition on an industrial association demanding a bargaining services fee does not prevent such an association from enforcing a payment of a bargaining services fee that is payable to the association under a contract for the provision of bargaining services.

 

1.22     Section 298SB would prohibit an industrial association from taking, or threatening to take, action against a person with intent to coerce the person, or another person, to pay a bargaining services fee.  This amendment would capture third-party conduct where, for example, an industrial association of employees might take action against an employer to force an employee who is not a member of the association to pay the bargaining services fee.

 

1.23     Section 298SBA is related to subsection 298SA(1A).  This amendment would make clear that nothing in the freedom of association provisions prevents an industrial association from entering into a contract for the provision of bargaining services with a person who is not a member of the association.

 

Item 10 - After Division 5 of Part XA

 

1.24     This item would insert a new Division 5A and a new section 298SC into the WR Act.  This item would prohibit a person from making a false or misleading representation about another person’s liability to pay a bargaining services fee.

 

 

 

Item 11 - At the end of section 298Y

 

1.25     Section 298Y currently provides that a provision of an industrial instrument, or agreement or arrangement (whether written or unwritten), is void to the extent that it requires or permits, or has the effect of requiring or permitting, any conduct that would contravene Part XA.

 

1.26     Item 11 would insert new subsection 298Y(2) to extend the focus of the section beyond conduct that would contravene Part XA to certain clauses in certified agreements.  This amendment would make clear that a provision of a certified agreement is void to the extent that it requires payment of a bargaining services fee.

 

Item 12 - Subsection 298Z(5)

 

1.27     Section 298Z gives the Commission power to remove, on application by a party or by the Employment Advocate, ‘objectionable provisions’ from awards and certified agreements.  Subsection 298Z(5) defines ‘objectionable provisions’ for the purposes of section 298Z.  Item 12 would repeal the current subsection and insert new subsections 298Z(5), (6) and (7).

 

1.28     Proposed new paragraph 298Z(5)(a) is similar to the current definition in subsection 298Z(5) by defining an objectionable provision as a provision of an award or certified agreement that requires or permits any conduct that would be in breach of Part XA (including where Part XA would not apply to the conduct, because the parties to the conduct fall outside the constitutional scope of the Part). 

 

1.29     Proposed new paragraph 298Z(5)(b) would make explicit that a provision, however described, of a certified agreement that requires payment of a bargaining services fee is an objectionable provision.

 

1.30     Proposed new subsection 298Z(6) would clarify that for the purpose of determining whether a provision of an award or certified agreement is an objectionable provision, it does not matter that the provision is void because of section 298Y. 

 

1.31     Proposed new subsection 298Z(7) would clarify the scope of the terms ‘permits’ and ‘requires’ as used in proposed new subsection 298Z(5).

 

Part 2 - Application provisions etc.

 

1.32     Part 2 contains application provisions for the amendments contained in Part 1 of the Schedule.

 

Item 13 - Application of items 1 and 2

 

1.33     Item 13 would provide that, for the purposes of subsection 170LU(2A) and paragraph 170MD(7)(e), the amendments proposed by Part 1 of the Schedule apply to all applications for certification or variation of agreements, irrespective of whether those applications were made before or after commencement of this Act.

 

 

 

Item 14 - Application of item 11

 

1.34     Item 14 would provide that the amendment made by item 11 [the insertion of new subsection 298Y(2)] would apply in relation to any certified agreement, irrespective whether the agreement was certified before or after the commencement of item 11.

 

Item 15 - Application of item 12

 

1.35     Item 15 would make clear that the amendment to subsection 298Z(5) made by item 12 applies to applications under that section made, but not decided, before the commencement of item 15. 

 

1.36     This item would also make it clear that the Commission is able to remove provisions requiring payment of bargaining services fees from agreements certified before or after its commencement.

 

Item 16 - Payments received before commencement

 

1.37     Item 16 would clarify that the amendments proposed by Part 1 of the Schedule do not affect payments received before the commencement of that Part.