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WORKPLACE RELATIONS AMENDMENT (PROHIBITION OF COMPULSORY UNION FEES) BILL 2002—SENATE'S AMENDMENTS

The order of the day having been read for the consideration of the amendments made by the Senate—

Mr Abbott (Minister for Employment and Workplace Relations) moved—That the amendments be disagreed to.

Debate ensued.

Question—put.

The House divided (the Deputy Speaker, Mr Jenkins, in the Chair)—

AYES, 73

Mr AbbottMr DuttonMr P. E. KingMr Slipper
Mr AndersonMrs ElsonMrs LeyMr A. D. H. Smith
Mr K. J. AndrewsMr EntschMr LindsayMr Somlyay
Mr AnthonyMr FarmerMr LloydDr Southcott
Fran BaileyMr Forrest*Mr McArthur*Dr Stone
Mr BairdMrs GallusMr I. E. MacfarlaneMr C. P. Thompson
Mr BaldwinMs GambaroMr McGauranMr Ticehurst
Mr BarresiMrs GashMrs MayMr Tollner
Mr BartlettMr GeorgiouMrs MoylanMr Truss
Mr BillsonMr HaaseDr NelsonMr Tuckey
Mrs B. K. BishopMr HardgraveMr NevilleMr M. A. J. Vaile
Ms J. I. BishopMr HartsuykerMs PanopoulosMrs D. S. Vale
Mr BroughMr HawkerMr PearceMr Wakelin
Mr CadmanMr HockeyMr ProsserDr Washer
Mr CausleyMrs HullMr RandallMr Williams
Mr CharlesMr HuntMr RuddockMr Windsor
Mr CioboMr JohnsonMr Schultz
Mr CobbMr JullMr Scott
Mr DownerMrs D. M. KellyMr Secker

NOES, 59

Mr AlbaneseMr EvansMs C. F. KingMr Ripoll
Mr AndrenMr L. D. T. FergusonMr LathamMs Roxon
Mr BeazleyMr FitzgibbonDr LawrenceMr Rudd
Mr BevisMs GeorgeMs LivermoreMr Sawford
Mr BreretonMr GibbonsMr McClellandMr Sciacca
Ms BurkeMs GillardMs J. S. McFarlaneMr Sercombe
Mr ByrneMs GriersonMs MacklinMr Sidebottom
Ms CorcoranMr GriffinMr McLeayMr S. F. Smith
Mr CoxMs HallMr McMullanMr Snowdon
Mr CreanMr HattonMr MelhamMr Swan
Mrs CrosioMs HoareMr MossfieldMr Tanner
Mr Danby*Mrs IrwinMr MurphyMs Vamvakinou
Mr EdwardsMs JacksonMr B. P. O'ConnorMr Wilkie
Ms EllisMr KatterMr PriceMr Zahra
Mr EmersonMr KerrMr Quick*

* Tellers

And so it was resolved in the affirmative.

Mr Abbott presented reasons, which were circulated, and are as follows:

Reasons of the House of Representatives for disagreeing to the amendments of the Senate

Senate Amendment 1

This amendment would allow a majority vote to impose a compulsory bargaining services fee on all employees (as long as certain specified criteria were met), irrespective of whether individual employees had sought the bargaining services to which the fee relates. The House of Representatives does not accept that an employee's right to freedom of association and freedom of choice should be contravened in this manner. The Workplace Relations Act 1996already ensures that an agreement cannot override certain individual rights by prohibiting clauses that are discriminatory or which breach Part XA of the Act (the freedom of association provisions). The Bill seeks to extend this principle. Senate Amendment 1 is contrary to this approach.

Accordingly, the House of Representatives opposes this amendment.

Senate Amendment 2

This amendment deletes item 10 from the Bill. Item 10 deals with false and misleading representations about bargaining services fees. In its place the amendment would insert a new Division 5A. This amendment, however, is unacceptable to the extent that it is related to Senate amendment 1. The amendment is also unnecessary, as item 10 of the Bill already prohibits false or misleading representations about another person's liability to pay a bargaining services fee. In addition, items 6, 9 and 10 of the Bill, in conjunction with sections 298K, 298L, 298P(3) and 298S of the Workplace Relations Act 1996, would prohibit a range of conduct arising out of a person's refusal to pay a bargaining services fee or to join an industrial association. The House of Representatives does not accept this amendment.

Senate Amendments 3 and 5

Senate amendment number 3 would remove item 11 from the Bill. Item 11 ensures that a provision of a certified agreement is void to the extent that it requires payment of a bargaining services fee. The deletion of item 11 from the Bill will prolong the continuing uncertainty as to whether or not bargaining services fees are enforceable. Making it clear that such clauses are unenforceable is a key element of the Bill. Accordingly, the House of Representatives opposes this amendment. As amendment number 5 is consequential upon amendment number 3, the House of Representatives also opposes this amendment.

Senate Amendments 4 and 6

The effect of amendment number 4 would be to delete item 12 from the Bill. Item 12 amends the definition of `objectionable provision' in section 298Z of the Workplace Relations Act 1996to include a clause that imposes a bargaining services fee.


This is a key element of the Bill as the Act provides that the Commission cannot certify an agreement containing an objectionable provision and is empowered to remove such clauses from existing agreements.

Section 298Z of the Workplace Relations Act currently provides that a provision may be removed from a certified agreement if it requires or permits any conduct that would contravene the freedom of association provisions of the Workplace Relations Act. Despite the Australian Industrial Relations Commission finding that bargaining services fee clauses have a coercive intent, in practice it has been found that the requirement for prohibited conduct has imposed a technical hurdle that is hard to overcome.

The House of Representatives does not accept Senate Amendment 4. Amendment number 6 is consequential upon amendment number 4 and the House of Representatives also opposes this amendment.

On the motion of Mr Abbott, the reasons were adopted.