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Workplace Relations Amendment (Better Bargaining) Bill 2005

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2004-2005

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

WORKPLACE RELATIONS AMENDMENT (BETTER BARGAINING) BILL 2005

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

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

 

 

Amendments to the Workplace Relations Amendment (Better Bargaining) Bill 2005

OUTLINE

These amendments will amend the Workplace Relations Amendment (Better Bargaining) Bill 2005 (Better Bargaining Bill) as introduced to:

·          define pattern bargaining ;

 

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

 

·          require the Australian Industrial Relations Commission to suspend or terminate a bargaining period if a negotiating party is engaged in pattern bargaining in relation to the proposed agreement;  and

 

·          provide for injunctions to stop or prevent industrial action taken to support claims by a negotiating party that is engaging in pattern bargaining.

 

Amendments to Schedules 2 and 3 vary the application provisions for those provisions in the Better Bargaining Bill related to suspension of bargaining periods and industrial action against two or more related corporations.

 

 

 

FINANCIAL IMPACT STATEMENT

 

The measures in these amendments will have no significant impact on Commonwealth expenditure.

 



NOTES ON AMENDMENTS

 

 

Amendment No. 1 - Clause 2, page 2 (table item 2)

1.1       This amendment proposes to add another schedule, proposed Schedule 5, to the commencement table.

 

Amendment No. 2 - Schedule 2, item 2, page 7 (lines 12 to 14)

Amendment No. 3 - Schedule 3, item 2, page 8 (lines 11 to 13)

1.2       These amendments propose changes to the application provisions of Schedules 2 (Suspension of bargaining periods) and 3 (Protected action and related corporations).

 

1.3       Schedule 2 inserts proposed sections 170MWB and 170MWC, to empower the Australian Industrial Relations Commission (the Commission) to suspend a bargaining period to allow for cooling-off or where the protected industrial action is causing significant harm to third parties.  Its application provision is proposed to be amended so that these provisions will apply even if the bargaining period sought to be suspended began before commencement of Schedule 2.

 

1.4       Schedule 3 inserts proposed subsection 170ML(3A) to provide that, for purposes of subsections (2) and (3), two or more employers cannot be treated as a single employer under paragraph 170LB(2)(b).  This provision only affects the scope of the immunity conferred by section 170ML (protected action).  Its application provision is proposed to be amended so that it applies in relation to a bargaining period even if the bargaining period began before commencement of Schedule 3.

Amendment No. 4 - Page 10 (after line 8), at the end of the Bill

1.5       This amendment would insert proposed Schedule 5.

 



SCHEDULE 5 - PATTERN BARGAINING

 

Workplace Relations Act 1996

 

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

5.1       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.

 

5.2       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 the Commission Full Bench in decisions (test cases) establishing national standards.

 

5.3       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.

 

5.4       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.

 

5.5       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.

 

5.6       By proposed subsection 170LGA(7), the term negotiating party is given the meaning prescribed by section 170MI.  It 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)

5.7       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 deal with restrictions on initiating new bargaining periods in certain circumstances.

 

Item 3 - After section 170MM

Item 7 - Application of amendments

 

5.8       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.

 

5.9       This provision would apply in relation to industrial action that is engaged in or organised after the commencement of Schedule 5, and in relation to pattern bargaining that is engaged in after that commencement, even where either the industrial action or pattern bargaining or both began before commencement.

 

Item 4 - After section 170MW

Item 7 - Application of amendments

5.10     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.

 

5.11     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.

 

5.12     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.

 

5.13     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.

 

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

 

5.15     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.

 

5.16     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.

 

5.17     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.

 

5.18     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.

 

5.19     These provisions would apply in relation to pattern bargaining that is engaged in after the commencement of Schedule 5, even where either the pattern bargaining or any relevant bargaining period or both began before commencement.

 

Item 5 - Division 10 of Part VIB (heading)

5.20     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.

 

Item 6 - After Division 10 of Part VIB

Item 7 - Application of amendments

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

 

5.22     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.

 

5.23     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.

 

5.24     These provisions would apply in relation to industrial action that is engaged in or organised after the commencement of Schedule 5, and in relation to pattern bargaining that is engaged in after that commencement, even where either the industrial action or pattern bargaining or both began before commencement.