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This is a Bill, not an Act. For current law, see the Acts databases.
2004-2005
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005
(Mr Fitzgibbon)
A Bill for an Act to amend the Trade Practices Act 1974 in relation to collective bargaining for small business
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Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005
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Contents
Part 1--Preliminary 1
^1 Short title 1
^2 Commencement 1
Schedule 1 -- Amendments to the Trade Practices Act 1974 2
Section ^2
Section ^2
Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005
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Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005
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Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005
\\Home1\rep00044\WRIGHT\PRIVATE MEMBERS' BILLS\41st Parliament\Trade Practices Collective Bargaining_PMB_ Fitzgibbon.doc 8/9/2005 11:07 AM// :
A Bill for an Act to amend the Trade Practices Act 1974 in relation to collective bargaining for small business
The Parliament of Australia enacts:
Part 1--Preliminary
^1 Short title
This Act may be cited as the Trade Practices Amendment (Collective Bargaining for Small Business) Act 2005.
^2 Commencement
This Act commences on the day on which it receives the Royal Assent.
Schedule 1 -- Amendments to the Trade Practices Act 1974
1 Subsection 8A(6)
After "subsection 93(3)", insert "or 93AC(1) or (2)".
2 After subsection 45(8)
Insert:
(8A) Subsection (2) does not apply to a corporation engaging in conduct described in that subsection if:
(a) the corporation has given the Commission a collective bargaining notice under subsection 93AB(1) describing the conduct; and
(b) the notice is in force under section 93AD.
3 Subsection 46(6)
After "operation of", insert "subsection 45(8A) or".
4 Subsection 46A(6)
After "operation of", insert "subsection 45(8A) or".
5 Before section 93
Insert:
Subdivision A--Exclusive dealing
6 Subsection 93(1)
Omit "notice, as prescribed,", substitute "a notice".
7 After subsection 93(1)
Insert:
(1A) To be valid, a notice under subsection (1) must:
(a) be in a form prescribed by the regulations and contain the information required by the form; and
(b) be accompanied by any other information or documents prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the regulations.
8 After subsection 93(2A)
Insert:
(2B) If the Commission receives a purported notice under subsection (1) that it considers is not a valid notice, it must, within 5 business days of receiving the purported notice, give the person who made the purported notice a written notice:
(a) stating that the person has not given a valid notice; and
(b) giving reasons why the purported notice does not comply with this Division.
Definition
(2C) In subsection (2B):
business day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory.
9 After section 93
Insert:
Subdivision B--Collective bargaining
93AA Definitions
In this Subdivision:
collective bargaining notice means a notice under subsection 93AB(1).
conference notice means a notice under subsection 93A(2).
contract means a contract, arrangement or understanding.
objection notice means a notice under subsection 93AC(1) or (2).
93AB Notification of collective bargaining
Notice to Commission
(1) A corporation that:
(a) has made, or proposes to make, a contract (the initial contract) containing a provision of the kind referred to in paragraph 45(2)(a); or
(b) proposes to give effect to a provision of a contract (the initial contract) where the provision is of the kind referred to in paragraph 45(2)(b);
may give the Commission a notice (the collective bargaining notice) setting out particulars of the contract or proposed contract, but only if the following 3 requirements are satisfied.
Note 1: Subsection (6) deals with the form etc. of a collective bargaining notice.
Note 2: Section 93AD sets out when a collective bargaining notice comes into force.
First--making of initial contract
(2) First, the corporation must have made, or propose to make, the initial contract with 1 or more persons (the contracting parties) about:
(a) the supply of particular goods or services to; or
(b) the acquisition of particular goods or services from;
another person (the target) by the corporation and the contracting parties.
Second--making of contracts with target
(3) Second, the corporation must reasonably expect that it will make 1 or more contracts with the target about:
(a) the supply of 1 or more of those goods or services to; or
(b) the acquisition of 1 or more of those goods or services from;
the target by the corporation.
Third--price of contracts with target
(4) Third, the corporation must reasonably expect that:
(a) in the case where the corporation reasonably expects to make only 1 contract with the target--the price for the supply or acquisition of those goods or services under that contract; or
(b) in the case where the corporation reasonably expects to make 2 or more contracts with the target--the sum of the prices for the supply or acquisition of those goods or services under those contracts;
will not exceed $10,000,000, or such other amount as is prescribed by the regulations, in any 12 month period. The regulations may prescribe different amounts in relation to different industries.
Timing of reasonable expectation
(5) The corporation must have the reasonable expectation referred to in subsections (3) and (4):
(a) at the time of giving the collective bargaining notice; and
(b) if the initial contract has been made--at the time it was made.
Form of notice etc.
(6) To be valid, a collective bargaining notice must:
(a) be in a form prescribed by the regulations and contain the information required by the form; and
(b) be accompanied by any other information or documents prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the regulations.
Notice given by, or on behalf of, contracting persons
(7) A collective bargaining notice may be expressed to be given on behalf of one or more of the contracting parties, but only if those parties could have given the notice on their own behalf. If the notice is so expressed, then it is also taken to have been given by those parties.
When a notice may not be given
(8) A corporation may not give a collective bargaining notice in relation to a contract or proposed contract if:
(a) it has applied for an authorisation in relation to the contract or proposed contract; and
(b) the Commission has made a determination dismissing the application; and
(c) either:
(i) the Tribunal has made a determination on an application for a review of the Commission's determination; or
(ii) the time for making such an application for review has ended without the making of an application.
Invalid collective bargaining notice
(9) If the Commission receives a purported collective bargaining notice that it considers is not a valid collective bargaining notice, it must, within 5 business days of receiving the purported notice, give the person who made the purported notice a written notice:
(a) stating that the person has not given a valid collective bargaining notice; and
(b) giving reasons why the purported collective bargaining notice does not comply with this Division.
Definition
(10) In this section:
business day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory.
trade union has the meaning given by subsection 4(1) of the Workplace Relations Act 1996.
93AC Commission's objection notice
Commission's objection notice--per se provisions
(1) If a corporation gives the Commission a collective bargaining notice in relation to:
(a) a contract, or proposed contract, containing a provision of the kind referred to in subparagraph 45(2)(a)(i) or (b)(i) (exclusionary provisions); or
(b) a contract, or proposed contract, containing a price fixing provision;
then the Commission may, if it is satisfied that any benefit to the public that has resulted or is likely to result or would result or be likely to result from the provision does not or would not outweigh the detriment to the public that has resulted or is likely to result or would result or be likely to result from the provision, give the corporation a written notice (the objection notice) stating that it is so satisfied.
Commission's objection notice--competition provisions
(2) If a corporation gives the Commission a collective bargaining notice in relation to a contract, or proposed contract, containing a provision of the kind referred to in subparagraph 45(2)(a)(ii) or (b)(ii) (other than a price fixing provision), then the Commission may, if it is satisfied that:
(a) the provision has or would have the purpose, or has or is likely to have or would have or be likely to have the effect, of substantially lessening competition (within the meaning of section 45); and
(b) in all the circumstances, either:
(i) the provision has not resulted or is not likely to result, or would not result or be likely to result, in a benefit to the public; or
(ii) any benefit to the public that has resulted or is likely to result, or would result or be likely to result, from the provision does not or would not outweigh the detriment to the public constituted by any lessening of competition that has resulted or is likely to result, or would result or be likely to result, from the provision;
give the corporation a written notice (the objection notice) stating that it is so satisfied.
Reasons for objection notice
(3) The Commission must, at the time it gives a corporation an objection notice, give the corporation a written statement of its reasons for giving the notice.
Conference before objection notice
(4) The Commission must comply with section 93A (conferences about draft objection notices) before giving an objection notice.
Commission to seek additional information
(5) For the purposes of deciding whether or not to give an objection notice:
(a) the Commission must seek such relevant information as it considers reasonable and appropriate; and
(b) the Commission may make a decision on the basis of:
(i) any information so obtained; or
(ii) any other information given to it by the corporation or any other person; or
(iii) any other information in its possession.
Definition
(6) In this section:
price fixing provision means a provision of the kind referred to in subsection 45A(1).
93AD When collective bargaining notice comes into force and ceases to be in force
When collective bargaining notice comes into force
(1) A collective bargaining notice comes into force:
(a) at the end of the period which is 14 days or such longer period as is prescribed by the regulations, starting on the day the corporation gave the Commission the notice; or
(b) if the Commission gives the corporation a conference notice during the period referred to in paragraph (a) and then decides not to give the corporation an objection notice--when the Commission makes that decision.
(2) However, a collective bargaining notice does not come into force if:
(a) it is withdrawn, or taken to be withdrawn, before it would come into force under subsection (1); or
(b) the Commission gives the corporation a conference notice during the period referred to in paragraph (1)(a) and then gives the corporation an objection notice.
Note: Section 93AE deals with the withdrawal of a collective bargaining notice.
When collective bargaining notice ceases to be in force
(3) A collective bargaining notice ceases to be in force at the earliest of the following times:
(a) when it is withdrawn or taken to be withdrawn;
(b) if the Commission gives the corporation an objection notice--on the 31st day after the relevant day or on a later day specified in writing by the Commission;
(c) at the end of the period of 3 years beginning on the day the corporation gave the collective bargaining notice.
Note: Section 93AE deals with the withdrawal of a collective bargaining notice.
(4) For the purposes of subsection (3), the relevant day is worked out in accordance with this table:
Relevant day
In this situation:
the relevant day is:
1
If an application is not made to the Tribunal for a review of the Commission's decision to give the objection notice
the day the Commission gave the notice.
2
If an application is made to the Tribunal for a review of the Commission's decision to give the objection notice
(a) if the review application is withdrawn--the day of the withdrawal; or
(b) if, on the application of the Commission or any other person who the Tribunal is satisfied has an interest in the subject matter of the review, the Tribunal declares that the applicant is not proceeding with the review application with due diligence--the day of the declaration; or
(c) in any other case--the day on which the Tribunal makes a determination on the review.
93AE Withdrawal of collective bargaining notice
Withdrawal by corporation
(1) A corporation may, by written notice given to the Commission, withdraw a collective bargaining notice it has given the Commission.
(2) The corporation may do so at any time before the Commission gives it an objection notice in relation to the collective bargaining notice.
Deemed withdrawal
(3) If:
(a) a corporation gives the Commission a collective bargaining notice in relation to a contract or proposed contract; and
(b) before or after the corporation gave the notice, it applies to the Commission for an authorisation for that contract or proposed contract; and
(c) the Commission makes a determination either dismissing the application or granting an authorisation in respect of the application; and
(d) either:
(i) the Tribunal makes a determination on an application for a review of the Commission's determination; or
(ii) the time for making such an application for review ends without the making of an application;
then the collective bargaining notice is taken to be withdrawn.
93AF Only 1 collective bargaining notice may be given
If:
(a) a corporation gives the Commission a collective bargaining notice in relation to a contract or proposed contract; and
(b) either:
(i) the Commission gives the corporation an objection notice in relation to the contract or proposed contract; or
(ii) the collective bargaining notice is taken to be withdrawn under subsection 93AE(3);
then the corporation may not give the Commission a further collective bargaining notice in relation to the same contract or proposed contract or in relation to a contract or proposed contract to the like effect.
10 Before section 93A
Insert:
Subdivision C--Conferences
11 Subsection 93A(1)
After "subsection 93(3)", insert "or 93AC(1) or (2)".
Note: The heading to section 93A is altered by omitting "in relation to exclusive dealing".
12 Subsections 93A(3), (4) and (10A)
After "subsection 93(3)", insert "or 93AC(1) or (2)".
13 Subsection 93A(12)
After "subsection 93(1)", insert "or 93AB(1)".
14 Before section 95
Insert:
Subdivision D--Register of notifications
15 Paragraph 95(1)(c)
After "section 93", insert "or 93AB".
16 Paragraph 95(1)(f)
Omit "by which notices under section 93 were given", substitute "in relation to notices given by corporations under section 93 or 93AB".
17 Before paragraph 95(1)(h)
Insert:
(gb) details of the specification of any day by the Commission under paragraph 93AD(3)(b); and
18 Paragraph 95(2)(a)
After "section 93", insert "or 93AB".
19 Section 101A
After "subsection 93(3)", insert "or 93AC(1) or (2)".
Note: The heading to section 101A is altered by inserting "or 93AC(1) or (2)" after "subsection 93(3)".
20 After subsection 102(5)
Insert:
(5AA) Upon a review of the giving of a notice by the Commission under subsection 93AC(1):
(a) if the person who applied for the review satisfies the Tribunal that any benefit to the public that has resulted or is likely to result or would result or be likely to result from the provision outweighs or would outweigh the detriment to the public that has resulted or is likely to result or would result or be likely to result from the provision--the Tribunal must make a determination setting aside the notice; or
(b) if the person who applied for the review does not so satisfy the Tribunal--the Tribunal must make a determination affirming the notice.
(5AB) Upon a review of the giving of a notice by the Commission under subsection 93AC(2):
(a) if the person who applied for the review satisfies the Tribunal that:
(i) the provision does not and would not have the purpose, and does not and is not likely to have or would not have and would not be likely to have the effect, of substantially lessening competition (within the meaning of section 45); or
(ii) in all the circumstances:
(A) the provision has resulted or is likely to result, or would result or be likely to result, in a benefit to the public; and
(B) that benefit outweighs or would outweigh the detriment to the public constituted by any lessening of competition that has resulted or is likely to result, or would result or be likely to result, from the provision;
the Tribunal must make a determination setting aside the notice; or
(b) if the person who applied for the review does not so satisfy the Tribunal--the Tribunal must make a determination affirming the notice.
(5AC) If the Tribunal sets aside a notice (the objection notice) given by the Commission under subsection 93AC(1) or (2), then:
(a) if the Commission gave the objection notice as part of a process starting when the Commission gave a notice under subsection 93A(2) (conference notice) during the period described in paragraph 93AD(1)(a)--the Commission is taken for the purposes of paragraph 93AD(1)(b) to have decided not to give the objection notice at the time the Tribunal set it aside; and
(b) for the purposes of subsections 93AD(2) and (3), the objection notice is taken not to have been given.
21 Subsection 109(1A)
After "subsection 93(3)", insert "or 93AC(1) or (2)".
22 Paragraph 151AJ(7)(b)
After "operation of", insert "subsection 45(8A) or".
23 Paragraph 151AY(1)(b)
After "subsection 93(1)", insert "or 93AB(1)".
Note: The heading to section 151AY is altered by omitting "section 93" and substituting "Part VII".
24 Paragraph 151AY(2)(c)
After "subsection 93(3)", insert "or 93AC(1) or (2)".
25 Subsection 155(1)
After "subsection 93(3)", insert "or 93AC(1) or (2)".
26 After subsection 45(8) of the Schedule
Insert:
(8A) Subsection (2) does not apply to a person engaging in conduct described in that subsection if:
(a) the person has given the Commission a collective bargaining notice under subsection 93AB(1) describing the conduct; and
(b) the notice is in force under section 93AD.
27 Subsection 46(6) of the Schedule
After "operation of", insert "subsection 45(8A) or".
28 Application
The amendments made by this Schedule apply in relation to contracts or arrangements made, or understandings arrived at, after the commencement of this Schedule.
29 Saving
(1) Regulations in force for the purposes of subsection 93(1) of the Trade Practices Act 1974 immediately before the commencement of this Schedule have effect, after that commencement, as if they had been made for the purposes of subsection 93(1A) of that Act after that commencement.
(2) A notice given in accordance with subsection 93(1) of the Trade Practices Act 1974 before the commencement of this Schedule has effect, after that commencement, as if it had been given in accordance with subsection 93(1A) of that Act after that commencement.