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Workplace Relations Amendment (Better Bargaining) Bill 2005

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2004-2005

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

 

 

 

 

WORKPLACE RELATIONS AMENDMENT (BETTER BARGAINING) BILL 2005

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment and Workplace Relations, the Honourable Kevin Andrews MP)

 

 

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED



WORKPLACE RELATIONS AMENDMENT (BETTER BARGAINING) BILL 2005

 

 

OUTLINE

The Bill proposes amendments to the Workplace Relations Act 1996 (WR Act) to:

 

·     ensure that industrial action cannot be taken from the time an agreement, or an award made under subsection 170MX(3), comes into operation until the nominal expiry date of the agreement or award has passed;

 

·     allow the suspension of a bargaining period to allow for a cooling-off period during the negotiations for a certified agreement;

 

·     allow the suspension of a bargaining period on application by a directly affected third party where industrial action is threatening to cause significant harm;

 

·     clarify that paragraph 170LB(2)(b) does not apply with respect to industrial action taken by or directly against the employer;

 

·     clarify that where parties negotiating a certified agreement and parties outside the agreement take industrial action in concert, this is not protected action;

 

·     define pattern bargaining and specify that industrial action is not protected industrial action if taken to support or advance claims by a negotiating party that is engaged in pattern bargaining;  and

 

·     provide specific remedies against pattern bargaining and industrial action taken to support pattern bargaining, including the suspension or termination of bargaining periods and injunctive relief.

 

Financial Impact Statement

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

 



REGULATION IMPACT STATEMENT

Suspension of bargaining periods for cooling-off and third party suspensions

Cooling - off Periods

Background

Under section 170MW of the WR Act, the Australian Industrial Relations Commission (the Commission) is empowered to suspend or terminate a bargaining period (and thus protected industrial action) on a number of grounds.  The grounds include that a party is not genuinely trying to reach agreement or that industrial action is threatening to endanger the life, personal safety, health or welfare of the population or a part of it, or to cause significant damage to the Australian economy or a significant part of it.

Termination

If a bargaining period is terminated on the grounds that the protected industrial action is threatening to endanger the life, the personal safety or health, or the welfare, of the population or part of it, or to cause significant damage to the Australian economy or an important part of it the Commission must conciliate and if appropriate arbitrate under section 170MX to settle the dispute.

Suspension

The power of suspension under section 170MW has been used in a limited number of cases by the Commission as a means of establishing a cooling-off period during the bargaining process to assist the resolution of disputes by enabling parties to negotiate in a less charged atmosphere. 

Problem or issue identification

The WR Act does not currently contain any direct provision for cooling-off periods to address cases of stalemate or to act as a circuit breaker in cases of protracted industrial action.  While section 170MW provides some limited scope for the Commission to establish informal cooling-off periods, it generally can only be invoked in defined and limited circumstances, for example when industrial action is threatening the national economy.

Cooling-off periods can play a valuable role in the negotiation process and would allow the parties, in specified circumstances, further time to negotiate without the pressure of continued industrial action.  Cooling-off periods would also give the parties time to investigate and consider the use of alternative means for resolving a stalemate situation.

The lack of any direct arrangements for establishment of cooling-off periods may also encourage parties to continue with industrial action.  For example, a negotiating party could contrive protected industrial action to establish the basis for terminating a bargaining period on grounds which trigger arbitration, rather than genuinely trying to reach an agreement.

Specification of the desired objectives

The Government’s broad objective is to provide legislative arrangements that encourage and assist parties to negotiate at the enterprise level without recourse to industrial action and to settle their differences without arbitral intervention.

Identification of options

Option 1: Status quo

Retain the current procedures for suspension of bargaining periods which enable the Commission to grant an informal cooling-off period in situations where the requirements of section 170MW for suspensions can be met.

Option 2: Provide for cooling-off periods

The Commission could be expressly empowered to suspend a bargaining period, on the application of a negotiating party, if protected industrial action was being taken, but only in appropriate circumstances.  In deciding if a suspension of a bargaining period would be appropriate, the Commission would have regard to:  whether or not suspending the bargaining period would assist the negotiating parties to resolve the matters at issue;  the duration of any protected action taken in respect of the proposed agreement;  whether or not suspending the bargaining period would be contrary to the public interest or inconsistent with the objects of the Act;  and any other matters the Commission considered relevant.

If an order suspending a bargaining period was made, the Commission would specify the length of the suspension period.  A negotiating party could apply to have the suspension of the bargaining period extended.  The Commission would have regard to the same matters listed above, and whether or not the negotiating parties during the period of the suspension had genuinely tried to reach an agreement.  An extension of a suspension of a bargaining period could only occur once.

In addition, to assist the resolution of the dispute, the Commission would be required to inform the negotiating parties that they may voluntarily submit the matters at issue to an agreed mediator or to the Commission for conciliation.

Assessment of impacts (costs and benefits) of each option

Option 1: Status quo

Costs

Because the WR Act does not formally establish provisions for cooling-off periods, application of the suspension powers under section 170MW to establish cooling-off periods is at the discretion of individual members of the Commission with only limited legislative guidance as to how and when these powers should be invoked. 

The suspension powers of section 170MW are not well suited to providing for cooling-off periods, they cannot be easily used in this role and cannot be invoked in many circumstances where the suspension of a bargaining period would be appropriate.

Maintaining the existing provisions would prevent many parties from accessing the benefits of cooling-off periods, which may act as a circuit break in stalemate situations, or protracted disputes.  More businesses are therefore likely to experience situations in which reaching agreement is made more difficult because of the continuation of industrial action during negotiations.  Such protracted action can result in substantial long-term costs to employers, employees and to productive workplace relationships.

Similarly, little legislative guidance is provided as to whether the Commission should suspend or terminate a bargaining period when the relevant criteria are met.  This results in uncertainty amongst the parties regarding the consequences of their actions, and may also provide an incentive for some parties to escalate industrial action to trigger arbitration under section 170MX.

Benefits

In some cases the Commission has been able to utilise the powers available to it to establish informal cooling-off periods.  The Commission could continue to do so to this limited extent even if the legislation was not amended.

Option 2: Providing for cooling-off period

Costs

The introduction of cooling-off periods will mean that the WR Act contains another regulatory mechanism.

Benefits

The current limited use of section 170MW to establish informal cooling-off periods demonstrates that benefits can be gained by such an approach.  Introducing formal arrangements for cooling-off periods will extend the potential benefits to a much wider range of parties in a wider range of circumstances which have been clearly defined.  Cooling-off periods will assist parties to resolve disputes over certified agreements by enabling them to negotiate in a less charged environment than that which is likely to exist when prolonged industrial action is continuing.  This will tend to improve the parties’ ability to negotiate agreements to their mutual benefit and will concomitantly assist in reducing the overall extent and duration of industrial action and associated costs to employers and employees.

Drawing parties’ attention to voluntary mediation and conciliation may assist to resolve disputes without further industrial action.  

Consultation

The Department of Employment and Workplace Relations (DEWR) wrote to key stakeholders requesting their views on the proposal to provide for cooling-off periods.

Responses were received from the Northern Territory Office of the Commissioner for Public Employment, the Western Australian Department of Consumer and Employment Protection (DoCEP), the Australian Council of Trade Unions (ACTU), the Queensland Government, the Victorian Department of Innovation, Industry and Regional Development (DIIRD), the Australian Chamber of Commerce and Industry (ACCI), and the Australian Industry Group (AiG).

The AiG and ACCI both indicated strong support for the measure. 

The ACTU noted that as the proposal was the same as that in the Workplace Relations Amendment (Genuine Bargaining) Bill 2002 and the submissions previously made in relation to this matter were still relevant.  The ACTU stated previously that ‘widening the ability of the IRC to suspend a bargaining period in cases of protracted action … is an attempt to tilt the balance in negotiations even further towards employers, without giving unions and employees any additional access to arbitration of their claims’.

The DoCEP noted the Commission is already empowered under section 170MW of the WR Act to suspend a bargaining period.  Further extension of the Commission’s powers to order a cooling-off period would have to be justified on the basis section 170MW was inadequate in practice.    

Consideration was given to the ACTU and DoCEP comments.  It was ultimately decided that the benefits from such a suspension mechanism outweighed the cost and that this was the most effective way of balancing the rights and responsibilities with the workplace relations system.  Employer groups such as AiG have previously provided evidence of the potential benefits of cooling-off periods.

Conclusion and Recommended Option

The Government believes that the WR Act should explicitly provide for cooling-off periods by amending the current provisions for suspension of bargaining periods.  Explicit provision for cooling-off periods will allow the opportunity for parties to resolve issues directly, or with the assistance of voluntary conciliation and/or mediation and will have particular value in cases of protracted action or where a stalemate has arisen.

Implementation and review

The proposal requires amendments to the WR Act.  DEWR will monitor and evaluate the effect of such legislative change.

Provision for suspensions by third parties

Background

Under subsection 170MW(3) of the WR Act the Commission may suspend or terminate a bargaining period where industrial action is threatening to endanger the life, the personal safety or health, or the welfare, of the population or part of it, or to cause significant damage to the Australian economy or an important part of it.  In these circumstances the Commission can act on its own initiative or on application by the Minister, rather than being limited to only making an order on application by a negotiating party.

Termination

If a bargaining period is terminated under subsection 170MW(3) of the WR Act, the Commission must conciliate and, if it considers appropriate, arbitrate to settle the dispute.

Problem or issue identification

The WR Act does not currently provide third parties with an avenue for direct relief if industrial action elsewhere threatens to cause them significant harm.

Section 170MW of the WR Act currently only provides third parties with an indirect form of relief in limited circumstances.  The Commission may suspend or terminate a bargaining period where industrial action is threatening to endanger life or the personal safety, health, or welfare of the population or to cause significant damage to the economy.  However, in these circumstances the Commission may only grant an order on application by a negotiating party, the Minister, or on its own motion.  Other parties, even if sustaining significant harm, are unable to seek direct relief from the Commission to lessen the impact of the industrial action.

For a business and employees of a business that are not party to industrial action, but are affected by the action, such interference can potentially result in loss of profits and wages and even business closure.  For third parties in the community more generally, industrial action can cause significant disruptions resulting in financial and non-financial loss.

Specification of the desired objectives

The Government’s broad objective is to provide legislative arrangements that encourage and assist parties to negotiate at the enterprise level without recourse to industrial action and to settle their differences without arbitral intervention.

Identification of options

Option 1: Status quo

Retain the current procedures for suspending or terminating a bargaining period whereby the Commission may only grant an order on application by a third party where the third party is the Minister and the industrial action is threatening to endanger life or the personal safety, health, or welfare, of the population or part of it, or to cause significant damage to the Australian economy or an important part of it.

Option 2: Provide for suspensions by third parties

The legislation could enable third parties to directly seek the suspension of a bargaining period in circumstances where industrial action threatened to cause them significant harm.  In deciding whether the suspension of a bargaining period would be appropriate, the Commission would consider:  whether the action was threatening to cause significant harm to any person (other than the negotiating party);  whether suspending the bargaining period would be contrary to the public interest or inconsistent with the objects of the WR Act;  and any other matters that the Commission considered relevant.

In considering whether the action is threatening to cause significant harm to any person the Commission may have regard to particular factors:

·     if the person is an employee, the extent to which the action affects the interests of the person as an employee;

·     the extent to which the person is particularly vulnerable to the effects of the action;

·     the extent to which the action threatens to:

-            damage the ongoing viability of a business carried on by the person;

-            disrupt the supply of goods or services to a business carried on by the person;

-            make the person unable to perform a condition of a contract to which he or she is a party;

-            cause other economic loss to the person; and

-            any other matters that the Commission considers relevant.

 

Assessment of impacts (costs and benefits) of each option

Option 1: Status quo

Costs

The WR Act does not provide third parties with the means to directly gain specific relief where industrial action elsewhere is threatening to cause them significant harm.

Benefits

Under section 170MW of the WR Act the Commission may provide relief indirectly to third parties by suspending or terminating a bargaining period where an application is made by a negotiating party, the Minister or the Commission acts on its own initiative, and industrial action is threatening to endanger life, the personal safety or health, or the welfare of the population or to cause significant damage to the economy.  The Commission could continue in this limited way to provide occasional indirect relief to third parties even if the legislation was not amended.  

Option 2: Provide for suspensions by third parties

Costs

Providing for the suspension of a bargaining period on the application of third parties will mean that the WR Act contains another regulatory mechanism.

Benefits

Providing for the suspension of the bargaining periods on the application of third parties will enable third parties to directly seek relief from the Commission in cases where industrial action threatens to cause them significant harm.

Consultation

DEWR wrote to key stakeholders requesting their views on the proposal to provide for the suspension of bargaining periods on application third parties.

Responses were received from the Northern Territory Office of the Commissioner for Public Employment, the ACTU, the Queensland Government, DIIRD, DoCEP, AiG, and ACCI.

The AiG indicated strong support for the measure.  

The ACTU stated that the WR Act already provides appropriate relief for third parties in that subsection 170MW(3) provides for a bargaining period to be suspended or terminated where industrial action may threaten the health and welfare of the population or cause significant damage to the Australian economy.

DoCEP considered it inappropriate for third parties to intervene as proposed.     

While the comments from the ACTU and the DoCEP were considered it was ultimately decided that the benefits from such a suspension mechanism outweighed the cost and that this was the most effective way of balancing the rights and responsibilities with the workplace relations system.

Conclusion and Recommended Option

The Government believes that the WR Act should enable third parties to directly seek relief from the Commission by applying to have the relevant bargaining period suspended, providing that the industrial action is threatening to cause them significant harm.  This would enable third parties to take steps to prevent or mitigate the damage that could otherwise be caused by the industrial action.

Implementation and review

All of the proposals would require amendments to the WR Act.  DEWR would monitor and

evaluate the effect of such legislative change.



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 various provisions of the Act are proposed to commence.  Sections 1 to 3 and anything in the Act not elsewhere covered by the table will commence on the day on which the Act receives the Royal Assent.  The amendments set out in Schedules 1 to 5 will commence on the 28th day after the day on which the Act receives Royal Assent.

Clause 3 - Schedule(s)

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

 



SCHEDULE 1 - INDUSTRIAL ACTION AND LOCKOUTS BEFORE EXPIRY OF AGREEMENT ETC.

Workplace Relations Act 1996

Item 1 - Subsection 170MN(1)

4.       This item proposes to omit words from subsection 170MN(1) and substitute new words to ensure that industrial action cannot be taken from the time an agreement or an award made under subsection 170MX(3) comes into operation, until the nominal expiry date of the agreement or award has passed.

5.       Existing section 170MN provides that, from the time when a certified agreement or an award made under subsection 170MX(3) comes into operation, until its nominal expiry date has passed, an employee, organisation or officer covered by the agreement or award must not, for the purposes of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, engage in industrial action.  Section 170MN is a penalty provision.

6.       In Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2003] FCAFC 183 ( Emwest ), the Full Federal Court found that under the current section 170MN, protected industrial action could be taken, prior to a certified agreement passing its nominal expiry date, provided the protected action was in relation to claims not already covered in the agreement.

7.       While proposed new subsection 170MN(1) is designed to remedy the decision of the Full Federal Court in Emwest , it goes further by prohibiting all industrial action, irrespective of its purpose, until the nominal expiry date of an agreement or an award made under subsection 170MX(3) has passed.  For example, as a result of the proposed amendments to section 170MN, industrial action directed at a third party rather than the employer would be prohibited during the life of a certified agreement.

Item 2 - Subsection 170MN(4)

1.       Item 2 proposes a similar amendment, as proposed in Item 1, to lockouts.

Item -3 - Application

2.       This item proposes that the amendments proposed by Items 1 and 2 will only apply in relation to engaging in or organising industrial action or lockouts on or after the commencement of this Schedule.



SCHEDULE 2 - SUSPENSION OF BARGAINING PERIODS

Workplace Relations Act 1996

Item 1 - After section 170MWA     

170MWB - Power of Commission to suspend bargaining period to allow for cooling-off application by negotiating party

3.       This item proposes to insert new section 170MWB to provide the Commission with discretion to suspend a bargaining period to allow for a cooling-off period.  The intention of the cooling-off period is to remove, for a period of time, the pressure of protected industrial action from the negotiations for a certified agreement, allowing parties room to continue negotiations in a less charged environment. 

4.       Proposed paragraphs 170MWB(1)(a)-(c) allows the Commission to order a cooling-off period if a number of requirements are met.

5.       Proposed paragraph 170MWB(1)(a) ensures that a suspension for cooling-off is only available to parties negotiating in relation to the proposed agreement.  The remedy is not available to any parties outside the proposed agreement.

6.       Proposed paragraph 170MWB(1)(b) refers to protected action taking place.  This is not limited to situations where industrial action is actually taking place.  This is consistent with the Commission’s Full Bench decision in State of Victoria and Health Services Union [Print L9810].

7.       Proposed subparagraphs 170MWB(1)(c)(i)-(iv) list factors for the Commission to consider in deciding whether a suspension is appropriate.  The Commission is not confined to the factors listed and may refer to any factors it considers to be relevant.

8.       Under proposed subsection 170MWB(2), the appropriate length of a cooling-off period is at the discretion of the Commission.

9.       Under proposed subsection 170MWB(3), the Commission has discretion to extend the period of a suspension of the bargaining period.  An extension may only be made on the application of a negotiating party in respect of the proposed agreement.  In considering whether an extension should be ordered, the Commission will have regard to the same factors it considered in ordering a suspension.  Also the Commission will consider whether the negotiating parties have used the cooling-off period to genuinely try to reach an agreement. 

10.     Proposed subsection 170MWB(4) provides that a cooling-off period may only be extended once.

11.     In the interests of procedural fairness, under proposed subsection 170MWB(5), the Commission must give the negotiating parties the opportunity to be heard when considering an application for a cooling-off period, or an application for an extension to the cooling-off period.

12.     To facilitate the parties resolving the matters at issue between them, proposed subsection 170MWB(6) requires the Commission to inform the negotiating parties that mediation and conciliation are available to them during the suspension period.

13.     A cooling-off period is intended to provide a circuit break in protracted negotiations for a certified agreement, therefore, under new subsection 170MWB(7), parties cannot take protected industrial action during a cooling-off period.

14.     A suspension under proposed section 170MWB differs from a suspension under existing section 170MW in that it is intended to provide a break in the industrial action to assist the negotiating parties to resolve the outstanding issues between them.  Section 170MW gives the Commission discretion to put a stop to industrial action in specified circumstances set out in existing subsections 170MW(2)-(7). 

170MWC - Power of Commission to suspend bargaining period - significant harm to third party

1.       This item proposes to insert new section 170MWC to give the Commission the discretion to suspend a bargaining period where third parties are threatened with significant harm as a result of industrial action.  Applications may be made by, or on behalf of, a person directly affected by the industrial action, or by the Minister.  The remedy is not available to the parties negotiating the proposed agreement.

2.       Proposed subsection 170MWC(1) requires the Commission to consider a number of factors in exercising its discretion to suspend a bargaining period.  The factors to be considered by the Commission include whether industrial action is being taken which threatens to cause significant harm to any person.  This includes the organising of industrial action but is not limited to situations where industrial action is actually taking place.  This is consistent with the Commission’s Full Bench decision in State of Victoria and Health Services Union [Print L9810].

3.       The Commission is also required to consider whether:

·     the industrial action is threatening to cause significant harm to any person (other than a negotiating party);  and

·     suspending the bargaining period would be appropriate by reference to the public interest, the principal objects of the WR Act, and any other relevant matters.

4.       Proposed subsection 170MWC(2) provides factors for the Commission to refer to when considering whether significant harm is threatened.  The factors are not exclusive and the Commission may consider any other matters it considers relevant.  It may be relevant to the Commission’s consideration that the significant harm is presently occurring, but the provision only requires that the action is threatening to cause such harm.

5.       Proposed paragraphs 170MWC(2)(a) and (c) refer to the interests of employees and the extent to which industrial action disrupts or threatens the viability of a business.  The inclusion of these factors means that the Commission can address situations where industrial action taken in one business may cause significant damage to another business or to employees in another business.  These circumstances commonly arise in the car industry where, for example, industrial action taken by a components manufacturer has a flow-on effect to major manufacturers and their employees.

6.       Proposed paragraph 170MWC(2)(b) refers to the extent to which a person is particularly vulnerable to the consequences of the industrial action.  This means the Commission will be able to consider the impact of the industrial action on those most affected by it.

7.       Under proposed subsection 170MWC(3), the appropriate length of a suspension is at the discretion of the Commission.

8.       Under proposed subsection 170MWC(4), the Commission has discretion to extend the period of a suspension of the bargaining period.  An extension may only be made on the application by or on behalf of a party directly affected by the industrial action or by the Minister.  In considering whether an extension should be ordered, the Commission is to have regard to the same factors it considered in ordering the suspension. 

9.       Under proposed subsection 170MWC(5), only one extension of the suspension period is allowed.  The appropriate length of an extension of a suspension period is at the discretion of the Commission.

10.     In the interests of procedural fairness, under proposed subsection 170MWC(6) the Commission must give the negotiating parties the opportunity to be heard when considering an application for a third party suspension or extension of a suspension on the basis of threatened significant harm to a third party. 

11.     To facilitate the parties resolving the matters at issue between them, proposed subsection 170MWC(7) requires the Commission to inform the negotiating parties that mediation and conciliation are available to them during the suspension period.

12.     Proposed subsection 170MWC(8) provides that anything done by a negotiating party or other person in respect of the proposed agreement is not protected action if it is done while the bargaining period is suspended.

Item 2 - Application of amendment

1.       This item proposes that the amendment will apply even if the bargaining period sought to be suspended began before the commencement of this Schedule.



SCHEDULE 3 - PROTECTED ACTION AND RELATED CORPORATIONS

Workplace Relations Act 1996

Item 1 - After subsection 170ML(3)

2.       The WR Act provides that a certified agreement can be made between employers and employees in a single business of the employer.  The WR Act also provides that, in relation to specific circumstances, a multiple business agreement can be made which can involve more than one employer.  Protected action is not available in relation to a proposed multi-business agreement.

3.       Subsection 170LB(2) provides a means whereby two or more employers can be treated as a single business and a single employer for the purposes of making and certifying agreements.  In particular, paragraph 170LB(2)(b) provides that if two or more corporations that are related to each other for the purposes of the Corporations Act 2001 each carry on a single business, they may be treated as one employer and the businesses may be treated as one business.

4.       Subsections 170ML(2) and (3) provide that employees and employers may, during a bargaining period, take protected action or organise a lockout for the purpose of supporting or advancing claims made in respect of the proposed agreement. 

5.       This item proposes to insert a new subsection 170ML(3A) after the existing subsection 170ML(3).  Proposed subsection 170ML(3A) provides that, for the purposes of subsection 170ML(2) and subsection 170ML(3), two or more related corporations cannot be treated as a single employer under paragraph 170LB(2)(b).

6.       The item is designed to make it clear that protected industrial action may not be taken by or against two or more companies that are related to the employer and which may be treated as a ‘single employer’ for the purposes of paragraph 170LB(2)(b).  This item does not affect the ability of employers and employees to make and certify agreements in reliance on the facilitative provision in paragraph 170LB(2)(b).  This item only affects the scope of the immunity conferred by section 170ML (protected action). 

Item 2 - Application of amendment

1.       This item proposes that the amendments made by Item 1 will apply even if the bargaining period sought to be suspended began before the commencement of this Schedule.



SCHEDULE 4 - PROTECTED ACTION AND INVOLVEMENT OF NON - PROTECTED PERSONS

Workplace Relations Act 1996

Item 1 - Section 170MM

2.       This item repeals section 170MM and substitutes a new section 170MM.  The proposed section is designed to make clear that protected industrial action can only be taken by parties to whom the proposed agreement will apply (ie, a union, employer, or employee that is a negotiating party in respect of the agreement or a member of a union negotiating party whose employment will be subject to the proposed agreement).

3.       Industrial action will lose its protected status if it is organised or engaged in, in concert with any person or organisation of employees that is not protected in respect of the specific industrial action being taken, (ie action solely in pursuit of a specific agreement by those who it is proposed will be subject to that agreement).

4.       The heading of the section is changed to make it clear that the section applies to any circumstance in which industrial action is engaged in, in concert with person who are not protected for that action.

Item 2 - Application of amendment

1.       This item proposes that the amendment will only apply in relation to engaging in or organising industrial action on or after the commencement of this Schedule.



SCHEDULE 5 - PATTERN BARGAINING

Workplace Relations Act 1996

Item 1 - At the end of Division 1 of Part VIB

42.       This item proposes to insert section 170LGA to define pattern bargaining.  Pattern bargaining occurs when a person who is a negotiating party for two or more certified agreements seeks common wages or conditions in two or more of those agreements, by engaging in a course of conduct that extends beyond a single business.  A course of conduct that does not extend beyond a single business cannot caught by the definition.

43.       Proposed subsection 170LGA(2) provides that the course of conduct is not pattern bargaining to the extent that a negotiating party only seeks the inclusion in agreements of wages and conditions determined by a Full Bench of the Commission in decisions (test cases) establishing national standards.

44.       Proposed subsection 170LGA(3) provides that a course of conduct is not pattern bargaining in relation to a single business or part of a single business if the negotiating party is genuinely trying to reach an agreement for that single business or part thereof.  For that to occur, negotiations must occur at the single-business level.  Proposed subsection 170LG(5) provides that the person seeking to rely on this exception has the burden of proving that it applies.

45.       Proposed subsection 170LGA(4) sets out factors relevant to working out whether a negotiating party is genuinely trying to reach an agreement for a single business or part.  The list of factors is indicative only, and is not intended to be exhaustive.

46.       Proposed subsection 170LGA(6) confers a section-specific meaning on the term genuinely trying to reach an agreement.  The subsection does not affect, and is not affected by, the meaning of the term or any variant of the term as used elsewhere in the WR Act.

47.       By proposed subsection 170LGA(7), the term negotiating party is given the meaning prescribed by section 170MI.  The subsection also clarifies that a proposed agreement is one sought to be negotiated pursuant to Division 2 or 3 of Part VIB.

Item 2 - Subsection 170MI(1) (note)

48.       This item proposes to make a consequential amendment to the legislative note following subsection 170MI(1) (initiation of bargaining period).  The note will be amended by adding references to proposed subsections 170MWAA(6) and (7), which place restrictions on initiating new bargaining periods.

Items 3 and 7 - After section 170MM and application of amendments

49.       Item 3 proposes to insert new section 170MMA to remove protected status from industrial action that is organised or engaged in to support or advance claims by a negotiating party that is engaged in pattern bargaining in relation to the proposed agreement.

50.       This provision would apply in relation to:

·     industrial action that is engaged in or organised after the commencement of this Schedule; and

·     pattern bargaining that is engaged in after that commencement,

even where either the industrial action or pattern bargaining or both began before commencement.

Items 4 and 7 - After section 170MW and application of amendments

51.       Item 4 proposes to insert new section 170MWAA to require the Commission to suspend or terminate a bargaining period if a negotiating party is engaged in pattern bargaining in relation to the proposed agreement.  The remedy may be sought on application by another negotiating party or a prescribed person.

52.       In the interests of procedural fairness, under proposed subsection 170MWAA(2), the Commission must give the negotiating parties the opportunity to be heard when considering an application to suspend or terminate the bargaining period under the section.

53.       The Commission has no discretion to withhold relief once the elements of subsection 170MWAA(1) have been established.  By proposed subsection 170MWAA(3), however, it may suspend or terminate the relevant bargaining period, as it considers appropriate.

54.       Proposed subsection 170MWAA(4) allows an application to be made under section 170MWAA for the suspension or termination of any or all bargaining periods applying to a specified business, or part of a business, without having to identify the relevant bargaining periods.  The application would have effect as if it were an application for termination or suspension of any or all of the bargaining periods that apply to the single business or part thereof.

55.       Proposed subsection 170MWAA(5) requires the Commission to satisfy itself as to which bargaining period or periods are relevant for a particular application.

56.       The appropriate length of a suspension is at the discretion of the Commission.  Although the proposed section does not expressly provide for the extension of a period of suspension, there is no specified limit on the number of applications that may be made for suspension.

57.       Proposed subsection 170MWAA(6) empowers the Commission declare, when ordering suspension, that a specified negotiating party or employee is not allowed to initiate a new bargaining period (in relation to specified matters dealt with by the proposed agreement), or may only initiate a new bargaining period subject to conditions.  The declaration may apply to some or all of the suspension period.

58.       Proposed subsection 170MWAA(7) empowers the Commission to declare, when terminating a bargaining period, that a specified negotiating party or employee is not allowed to initiate a new bargaining period (in relation to specified matters dealt with by the proposed agreement), or may only initiate a new bargaining period subject to conditions.  The declaration may apply for an appropriate period, beginning from the time of the termination.

59.       Proposed subsection 170MWAA(8) specifies that anything done by a negotiating party or any other person in respect of a proposed agreement during suspension is not protected action.

60.       These provisions would apply in relation to pattern bargaining that is engaged in after the commencement of this Schedule, even where either the pattern bargaining or any relevant bargaining period or both began before that commencement.

Item 5 - Division 10 of Part VIB (heading)

61.       This item proposes to repeal the heading of Division 10 of Part VIB ( Division 10 - Enforcement and Remedies ) and substitute a new heading ( Division 10 - Contravention of penalty provisions ) This arrangement separates the enforcement regime relating to penalty provisions in Part VIB from the injunctive remedy of proposed Division 10AA.

Items 6 and 7 - After Division 10 of Part VIB and application of amendments

62.       Item 6 would insert a new division entitled Division 10AA - Injunctions after Division 10 of Part VIB.

63.       Proposed subsection 170NHAA(1) allows any person to make application to an appropriate court for an injunction to stop or prevent industrial action that is taken to support or advance claims by a negotiating party that is engaged in pattern bargaining.

64.       The term appropriate court is defined in subsection 170NHAA(2) to mean the Federal Court of Australia, the Federal Magistrates Court, a Supreme Court of a State or Territory or a District Court, or County Court, of a State.

65.       These provisions would apply in relation to:

·     industrial action that is engaged in, or that is threatened, impending or probable after the commencement of this Schedule; and

·     pattern bargaining that is engaged in after that commencement,

even where either the industrial action (or threats of industrial action) or pattern bargaining or both began before commencement.