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Wednesday, 20 February 2002
Page: 501

Mr ABBOTT (Minister for Employment and Workplace Relations and Minister Assisting the Prime Minister for the Public Service) (9:31 AM) —I move:

That this bill be now read a second time.

Freedom of association is the cornerstone of the government's vision for a more productive and more prosperous workplace. On first coming to office, the government amended the legislative regime to properly reflect this principle. The Workplace Relations Act 1996 provides for the first time broad legislative recognition of the freedom to join, or not to join, an industrial association.

This fundamental freedom has been offended by recent union attempts to impose so-called bargaining agent's fees. These require non-union members to bear a cost for union negotiations at their workplace. In many cases, the fee demanded has been set at $500 a year which is well above the level of annual union dues. This suggests that many compulsory fee demands are being made with a premeditated coercive intent.

Clauses purporting to require payment of compulsory union fees by non-unionists have already been included in hundreds of federal certified agreements.

Union attempts to justify these fees on a `user pays' basis are a gross distortion of that principle. Compulsory fees for an unrequested service do not constitute `user pays' at all. `User pays' involves an exchange that is freely entered into by willing and properly informed parties. The government believes that industrial associations should be subject to the same standards as ordinary businesses which are prevented by fair trading legislation from providing unrequested services and then demanding payment for those services.

In May last year, I introduced a bill to address the imposition of compulsory union fees on non-members in a workplace. That bill, which was the subject of a Senate committee inquiry, was before the Senate when parliament was prorogued for the election.

In the coalition's 2001 workplace relations election policy, the government again committed to introducing legislation to prohibit trade unions involved in workplace bargaining from imposing a compulsory fee on non-union employees. The Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Bill 2002 gives effect to that commitment.

This bill will amend the certified agreement and freedom of association provisions in the Workplace Relations Act. The amendments address clauses in certified agreements that purport to require payment of bargaining services fees. They also address conduct designed to compel people to pay such fees.

Late last year, a full bench of the Australian Industrial Relations Commission found bargaining fee clauses in certified agreements do not contradict the strict letter of the freedom of association provisions of the act, despite their acknowledged coercive intent. This has exhausted the legal avenues to have these clauses removed from certified agreements.

A subsequent judgment of the Federal Court in a case involving Electrolux and the AWU suggests that bargaining service fee clauses are not enforceable under the Workplace Relations Act, because they do not deal with a matter pertaining to the relationship between employers and employees. Even so, their continued presence in certified agreements lends them an unwarranted legitimacy.

Accordingly, the Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Bill provides that bargaining fee clauses in certified agreements are void and will give the commission the power to remove such clauses on application by the Employment Advocate, or a party to the agreement. In addition, the bill will prevent the commission certifying an agreement containing a clause requiring the payment of a fee for bargaining services.

The recent decision of the Federal Court in the Electrolux case reiterates the view that bargaining fee clauses in certified agreements do not provide a basis on which unions can legally compel non-members to pay such fees. Consistent with this, the bill will amend the Workplace Relations Act 1996 to:

prohibit employers and others from engaging in discriminatory conduct against people who refuse to pay a bargaining fee;

prohibit an industrial association from encouraging or inciting others to take discriminatory action against people who refuse to pay a bargaining fee;

prohibit an industrial association from taking, or threatening to take, action with intent to coerce people to pay a bargaining fee; and

prohibit an industrial association from demanding a bargaining fee.

There is also a need to prevent unions or employers from using other methods to create an impression that employees are legally obliged to pay compulsory union fees. Hence the bill will prohibit the making of false or misleading representations about a person's liability to pay a compulsory union fee.

The bill will not prevent people making voluntary contributions, provided there is no coercion or misrepresentative conduct. The bill will prevent demands for coercive, non-consensual fees that are contrary to rights to freedom of association.

Bargaining fees are not a legitimate way for trade unions to arrest the dramatic and sustained fall in their membership.

Australian laws recognise an important statutory role for registered industrial organisations and confer upon them significant rights and obligations. But that legal standing cannot be at the expense of the right of individual employers and employees to freedom of association and to protection from coercive or discriminatory conduct.

I commend the bill to the House and present the explanatory memorandum.

Debate (on motion by Mr Cox) adjourned.