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Monday, 13 December 1993
Page: 4413


Senator BELL (4.29 p.m.) —I move:

11.Clause 31, page 41, proposed subsection 170NB(2), lines 12 to 16, omit the subsection, substitute the following subsection:

"(2) As soon as practicable after the application is made, the Commission must publish a notice, as prescribed, that the application has been made.".

This amendment relates to page 41 of the bill. It requires the commission to publish a notice, as prescribed when approval is being sought for an enterprise flexibility agreement. It replaces the requirement that the commission notify unions which are a party to an award which is varied by the agreement. This does not alter the right of such unions to be heard on application for approval. The Democrats support that right and, in any case, believe that the commission would grant such a right under section 43, even if this specific provision of the bill were removed.

  However, the automatic notification of unions really smacks of the commission doing the homework that is rightly the task of the unions. We believe that a notice published in the law lists specifying the employer, and possibly specifying the award to be varied, is a more appropriate way of going about things.

  This area has been a matter of great concern, and in some cases undue concern on the part of both employers and unions involved—the degree to which one group should be doing the work of another, the degree to which one group should be intervening in the affairs of others. I am particularly concerned that this opportunity to be heard at a commission hearing has been characterised as a right of intervention and, even worse, as a right of veto by some commentators on this matter. The recent case in Tasmania concerning the Delta Hydraulics agreement should be enough to demonstrate that the opportunity for unions to be heard in the actual conduct of the enterprise agreement hearing before the commission has been upheld by Tasmanian courts. It is a right with which I agree, and I think any sensible person should because, after all, what we are looking at is the alteration of an award in which the unions have had a considerable role. That is how in the past awards have been arrived at.

  The right to be heard is a right which does not confer an opportunity for veto. It is not a right to intervene, it is not a right to impinge on the process of negotiation. The right to be heard is the right to express a point of view. Whether the commission takes any notice of that point of view is up to the commission. When I was speaking on Senator Margett's amendment, I noticed that the first part of the process of certification of agreement reads, on page 32 of the bill, under section 170MC(1):

The Commission must certify an agreement if, and must not certify an agreement unless, it is satisfied. . .

There follows a considerable list: (a), (b), (c), (d), (e), (f), (g) and (h). Section 170MC(2) then lists a considerable set of tests that the commission must apply. Not one of them mentions the union's concurrence or the union's agreement. Not one of them says that the union has the capacity to deny the agreement's approval. What is listed is a set of tests which are there to safeguard the enterprise itself and the employees. When those tests have been satisfied, the commission must certify the agreement. I remind senators of the word `must'—the commission `must'. The union has the opportunity to be heard but it does not have the opportunity to veto.  I think we should spend a lot of time clarifying this aspect of the legislation because it has led to a great deal of fear and misunderstanding in this area. It is unjustified fear, I believe.

  What we are asking for in our amendment is to reduce the opportunity of a group which is not paying attention, a group which is not interested, a group which is not servicing its members, a group or a union which is not performing the task which it should be performing on behalf of its members. We seek to reduce the opportunity of such a union to be able to put in perfunctory, matter-of-course objections. If we preserve that situation, we preserve a situation which is to the great disadvantage of both the employees and the enterprises involved. So it is with that in mind that I have moved Democrat amendment No. 11.