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Workplace Relations Amendment Bill 2000
Schedule  1 Pattern bargaining and related conduct

Part 1 Amendments

Workplace Relations Act 1996

1  Subsection 4(1)

Insert:

old IR agreement means an agreement certified or approved under:

                     (a)  section 115, as in force immediately before the commencement of the Industrial Relations Amendment Act 1992 ; or

                     (b)  Division 3A of Part VI, as in force immediately before the commencement of Schedule 2 to the Industrial Relations Reform Act 1993 ; or

                     (c)  Part VIB, as in force immediately before the commencement of item 1 of Schedule 9 to the Workplace Relations and Other Legislation Amendment Act 1996 .

2  Subsection 127(1)

After “industrial action” (first occurring), insert “that is not, or would not be, protected”.

3  Paragraph 127(1)(c)

Omit “or a certified agreement”, substitute “, a certified agreement or an old IR agreement”.

4  Subsection 127(1)

Omit “may”, substitute “must”.

5  Subsection 127(3)

Repeal the subsection, substitute:

             (3)  As far as practicable, the Commission must hear and determine an application for an order under this section (including the question of whether the industrial action is not, or would not be, protected) within 48 hours of the application being made.

          (3A)  If the Commission is unable to determine an application for an order under this section (including the question of whether the industrial action is not, or would not be, protected) within 48 hours of the application being made, the following provisions apply:

                     (a)  subject to paragraph (c), the Commission must (within that 48 hour period) make an interim order to stop the industrial action or prevent it from occurring;

                     (b)  the interim order has effect until the application is determined;

                     (c)  however, the Commission must not make an interim order if the Commission is satisfied that it would be contrary to the public interest to do so.

6  After section 170LG

Insert in Division 1 of Part VIB:

170LGA   Meaning of pattern bargaining

             (1)  For the purposes of this Part, pattern bargaining means a course of conduct or bargaining, or the making of claims, involving seeking common wages and/or other common employee entitlements, that the Commission is satisfied:

                     (a)  forms part of a campaign that extends beyond a single business; and

                     (b)  is contrary to the objective of encouraging agreements to be genuinely negotiated between parties at the workplace or enterprise level.

This has effect subject to subsections (2) to (5).

             (2)  A course of conduct or bargaining, or the making of claims, involving seeking common wages and/or other common employee entitlements:

                     (a)  that forms part of a campaign that extends beyond a single business; and

                     (b)  that is by an organisation of employees that is a negotiating party to a proposed agreement in relation to a single business or part of a single business;

is taken to be contrary to the objective of encouraging agreements to be genuinely negotiated between parties at the workplace or enterprise level unless the Commission is satisfied that all of the common entitlements being sought are of such a nature that they are not capable of being pursued at the single business level. This has effect subject to subsections (3), (4) and (5).

Note 1:       A claim that is made in respect of an agreement for a single business at a particular site of work or project and that is part of a common claim being pursued in respect of all employers and employees at that site of work or project will not be pattern bargaining if the Commission is satisfied that the entitlements being sought in the claim are of such a nature that they are not capable of being pursued at the single business level.

Note 2:       A claim made in respect of an agreement for a single business for terms or conditions of employment that are contained in the immediately preceding certified agreement that applied to the single business will not be pattern bargaining (despite the fact that it is part of a common claim extending beyond the single business) if the Commission is satisfied that the entitlements being sought in the claim are of such a nature that they are not capable of being pursued at the single business level.

Note 3:       A claim made in respect of an agreement for a single business for terms or conditions of employment that are the same as terms or conditions contained in an award that applies to the single business will not be pattern bargaining (despite the fact that it is part of a common claim extending beyond the single business) if the Commission is satisfied that the entitlements being sought in the claim are of such a nature that they are not capable of being pursued at the single business level.

             (3)  To avoid doubt, the Commission cannot be satisfied, for the purposes of subsection (2), that entitlements sought by an organisation are of such a nature that they are not capable of being pursued at the single business level merely because the entitlements are being sought as common entitlements extending beyond a single business.

             (4)  In determining, for the purposes of subsection (2), whether entitlements sought by an organisation that is a negotiating party to a proposed agreement in relation to a single business, or part of a single business, are of such a nature that they are not capable of being pursued at the single business level, the Commission must have particular regard to the views of the employer who is a negotiating party to the proposed agreement.

             (5)  An organisation of employees that is a negotiating party to a proposed agreement in relation to a single business, or part of a single business, is not taken to have engaged in pattern bargaining merely because the organisation is seeking the inclusion in the proposed agreement of terms and conditions which give effect to a Full Bench decision establishing national standards.

7  Subsection 170MI(1) (note)

After “170MW(10)”, insert “, 170MWB(3)”.

8  Paragraph 170ML(2)(b)

After “employer”, insert “and whose employment will be subject to the proposed agreement”.

9  Section 170MM

Repeal the section, substitute:

170MM   Industrial action must not involve persons who are not protected for that industrial action

             (1)  Engaging in industrial action in relation to a proposed agreement is not protected action if:

                     (a)  it is engaged in concert with one or more persons or organisations that are not protected persons for the industrial action; or

                     (b)  it is organised other than solely by one or more protected persons for the industrial action.

             (2)  Organising industrial action in relation to a proposed agreement is not protected action if:

                     (a)  it is organised in concert with one or more persons or organisations that are not protected persons for the industrial action; or

                     (b)  it is intended to be engaged in other than solely by one or more protected persons for the industrial action.

             (3)  In this section:

protected person for industrial action in relation to a proposed agreement means:

                     (a)  an organisation of employees that is a negotiating party to the proposed agreement; or

                     (b)  a member of such an organisation who is employed by the employer and whose employment will be subject to the proposed agreement; or

                     (c)  an officer or employee of such an organisation acting in that capacity; or

                     (d)  an employee who is a negotiating party to the proposed agreement.

10  After subsection 170MP(1)

Insert:

          (1A)  For the purposes of subsection (1), an organisation of employees is taken not to have genuinely tried to reach an agreement with the employer if it was engaged in pattern bargaining in respect of the proposed agreement.

11  After section 170MT

Insert:

170MTA   Jurisdiction of Court to determine if action is protected action

             (1)  The Court may, on application by a person, or organisation, who is:

                     (a)  engaging in, or organising, industrial action; or

                     (b)  affected by industrial action;

determine whether the industrial action is or is not protected action or whether the action is covered by subsection 170MT(1) or (2).

             (2)  However, the Court must not grant a final or interlocutory injunction to prevent a person or organisation from instituting or pursuing an action in relation to the industrial action under:

                     (a)  section 127; or

                     (b)  any of sections 170MW to 170MWB; or

                     (c)  any law, whether written or unwritten, in force in a State or Territory.

             (3)  The powers conferred on the Court under this section are in addition to, and not in derogation of, any other powers of the Court, whether conferred by this Act or otherwise.

             (4)  This section does not prevent a court of a State or Territory, for the purposes of proceedings before that court, determining whether industrial action is or is not protected action or whether the action is covered by subsection 170MT(1) or (2).

12  After section 170MW

Insert:

170MWA   Power of Commission to suspend bargaining period to allow for cooling-off

             (1)  The Commission must, by order, suspend the bargaining period for a period specified in the order if:

                     (a)  a negotiating party applies to the Commission for the period to be suspended under this section; and

                     (b)  the Commission:

                              (i)  considers that suspending the bargaining period would be beneficial because it would assist the negotiating parties to resolve the matters at issue; and

                             (ii)  does not consider that the suspension would be contrary to the public interest.

             (2)  The period of suspension specified in the order must be a period that the Commission considers appropriate. The Commission may, by order, extend the period of suspension (including that period as previously extended) by a specified period that the Commission considers is appropriate if:

                     (a)  a negotiating party applies to the Commission for the period to be extended; and

                     (b)  the Commission considers that the extension is appropriate, having regard to the matters referred to in paragraph (1)(b).

             (3)  The Commission must not make an order under subsection (1) or (2) unless it has given the negotiating parties the opportunity to be heard.

             (4)  Anything done by a negotiating party or any other person in respect of the proposed agreement is not protected action if it is done at a time when the bargaining period is suspended.

13  After section 170MWA

Insert:

170MWB   Commission must terminate bargaining period if organisation of employees engages in pattern bargaining

             (1)  The Commission must, by order, terminate the bargaining period if:

                     (a)  a negotiating party applies to the Commission for the period to be terminated under this section; and

                     (b)  an organisation of employees has engaged or is engaging in pattern bargaining in respect of the proposed agreement.

             (2)  The Commission must not make an order under subsection (1) unless it has given the negotiating parties the opportunity to be heard.

             (3)  An order under subsection (1) terminating the bargaining period may, if the Commission considers it to be in the public interest, contain a declaration that, during a specified period beginning at the time of termination, a specified negotiating party or employee of the employer:

                     (a)  is not allowed to initiate a new bargaining period in relation to specified matters that are dealt with by the proposed agreement; or

                     (b)  may initiate such a bargaining period only on conditions specified in the declaration.



 

Part 2 Application and transitional provisions

14  Application of amendments

(1)        The amendments made by items 2 to 5 apply in relation to applications under section 127 of the Workplace Relations Act 1996 that are made on or after the commencement of this item.

Note:       See also item 15.

(2)        The amendments made by items 8 to 12 apply in relation to action engaged in on or after the commencement of this item (even if any bargaining period concerned began before that commencement).

(3)        The amendment made by item 13 applies in relation to a course of conduct or bargaining, or the making of claims, involving seeking common wages and/or other common employee entitlements, whether the conduct or bargaining occurred, or the claims were made, before, on or after the commencement of this item.

15  Transitional—applications to Commission under section 127

(1)        This item sets out what happens in relation to applications to the Commission under section 127 of the Workplace Relations Act 1996 as in force immediately before the commencement of this item that have not been finalised before the commencement of this item.

(2)        If the Commission has started to deal with the application before the commencement of this item, the Workplace Relations Act 1996 as in force immediately before the commencement of this item continues to apply in relation to the application.

(3)        If the Commission has not started to deal with the application before the commencement of this item, the application is taken to have been made on the commencement of this item in accordance with section 127 of the Workplace Relations Act 1996 as amended by this Act.