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Fair Work Amendment (Stop Work to Stop Warming) Bill 2019

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2019

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Fair Work Amendment (Stop Work to Stop Warming) Bill 2019

 

 

 

EXPLANATORY MEMORANDUM

and

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

 

 

 

Circulated by authority of

Adam Bandt MP



Fair Work Amendment (Stop Work to Stop Warming) Bill 2019

 

 

OUTLINE

 

Global warming is a threat to the interests and wellbeing of the entire Australian population, including workers. Workers currently have constitutionally protected rights to engage in political speech, including political protest, about global warming and government policies needed to tackle it. This Bill puts beyond doubt that employees covered by the Fair Work Act 2009 have a right to take industrial action for the purpose of demanding that action be taken to address climate change. It also clarifies that employees and employers may bargain and agree about climate change matters.

 

The Bill does this through two primary means. The Bill firstly introduces a new category of ‘ protected climate change industrial action ’. Employees taking such action are immune from having any action taken against them under any Australian law, provided their action remains within certain limits (such as not being a threat to anyone else’s life or safety).

 

Secondly, the Bill permits employees and employers to include in their enterprise agreements matters pertaining to climate change. This will also permit employees to take ‘ protected industrial action ’ within the existing meaning of the Act - action taken in support of securing an enterprise agreement - about such matters.

 

Unlike the new category of ‘ protected climate change action ’, where a general legal immunity applies to any such action taken at any time, the usual restrictions of the Act regarding protected action will apply to employees, employers and organisations taking protected action in pursuit of a matter pertaining to climate change.

 

FINANCIAL IMPACT

 

The bill will have no financial impact.

 

NOTES ON CLAUSES

 

Clause 1: Short Title

 

This clause provides for the Act to be cited as the Fair Work Amendment (Stop Work to Stop Warming) Act 2019.

 

Clause 2: Commencement

 

This clause provides for the whole of this Act to commence the day after it receives the Royal Assent.

 

Clause 3: Schedules

 

This clause gives effect to the Schedules. It provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

 

Schedule 1 - Amendments of the Fair Work Act 2009

 

Item 1: Section 12

 

Inserts protected climate change industrial action into the dictionary.

 

Item 2: At the end of subsection 172(1)

 

Provides that an enterprise agreement is permitted to contain matters pertaining to climate change. This is a broad definition which not only encompasses climate change related matters directly related to a particular enterprise (such as the use of renewable energy or the financial investments of the employer), but also matters relating to the effects of climate change (such as extreme heat or drought) as well as policy and government action of climate change (such as support for a particular emissions reduction target).

 

Item 3: Paragraph 341(2)(c)

 

Extends the meaning of workplace right to include protected climate change industrial action .

 

Item 4: Section 406 (paragraph beginning “Division 10”)

 

Adds protected climate change industrial action to the Guide for this part.

 

Item 5: At the end of subsections 409(1) and 410(1)

 

Excludes protected climate change industrial action from the definition of employee claim action (for which ballots and other steps are required under Division 2). Accordingly, the usual requirements for industrial action to be protected industrial action do not apply to protected climate change industrial action.

 

Item 6: At the end of section 411

 

Provides that protected climate change industrial action is not employer response action.

 

Item 7: Subsection 417(1)

 

Allows persons referred to in 417(2) to engage in protected climate change industrial action before nominal expiry date of enterprise agreement etc.

 

Item 8: Subsection 418(1)

 

Removes the obligation on the FWC to make an order to stop protected climate change industrial action.

 

Item 9: Subsection 419(1)

 

Removes the obligation on the FWC to make an order to stop protected climate change industrial action for non-national system employees or non-national system employers.

 

Item 10: Paragraph 421(2)(b)

 

A person is not required to comply with an order issued by the FWC under section 418, 419 or 420  if the order relates to protected climate change industrial action.

 

Item 11: Subsection 474(1)

 

Provides that an employee who engages in protected climate change industrial action can be paid by the employer.

 

Item 12: After section 477

 

Provides immunity from any action against any employee or organisation under any law of Australia where the employee or organisation has organised or engaged in protected climate change industrial action.

 

It also provides for the FWC to order the protected climate change industrial action be stopped if it is deemed to threaten or endanger life, personal safety or health and welfare.

 

Item 13: In the appropriate position in Schedule 1

 

Part 9 - Amendments made by the Fair Work Amendment (Stop Work to Stop Warming) Act 2019

 

Sections 477A and 477B of this Act as inserted by the Fair Work Amendment (Stop Work to Stop Warming) Act 2019 apply in relation to industrial action that occurs on or after the commencement of this part. 

 

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

Fair Work Amendment (Stop Work to Stop Warming) Bill 2019

 

This bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the bill

 

Global warming is a threat to the interests and wellbeing of the entire Australian population, including workers. Workers currently have constitutionally protected rights to engage in political speech, including political protest, about global warming and government policies needed to tackle it. This Bill puts beyond doubt that employees covered by the Fair Work Act 2009 have a right to take industrial action for the purpose of demanding that action be taken to address climate change. It also clarifies that employees and employers may bargain and agree about climate change matters.

 

The Bill does this through two primary means. The Bill firstly introduces a new category of ‘ protected climate change industrial action ’. Employees taking such action are immune from having any action taken against them under any Australian law, provided their action remains within certain limits (such as not being a threat to anyone else’s life or safety).

 

Secondly, the Bill permits employees and employers to include in their enterprise agreements matters pertaining to climate change. This will also permit employees to take ‘ protected industrial action ’ within the existing meaning of the Act - action taken in support of securing an enterprise agreement - about such matters.

 

Unlike the new category of ‘ protected climate change action ’, where a general legal immunity applies to any such action taken at any time, the usual restrictions of the Act regarding protected action will apply to employees, employers and organisations taking protected action in pursuit of a matter pertaining to climate change.

 

Human rights implications

 

This bill does not engage any of the applicable rights or freedoms.

 

Conclusion

 

This bill is compatible with human rights because it does not raise any human rights issues.

 

 

 

Adam Bandt MP