Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
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 C:\ConversionData\Conversion\Lodgment\B00631D1C0CCDBFCCA25707A002609BE\05154b.r tf 12/9/2005 5:00 PMIndex] [Search] [Download] [Bill] [Help]Contents Part 1--Preliminary 1 ^1 Short title.......................................................................................1 ^2 Commencement .............................................................................1 Schedule 1 -- Amendments to the Trade Practices Act 1974 2 i Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005 C:\ConversionData\Conversion\Lodgment\B00631D1C0CCDBFCCA25707A002609BE\05154b.r tf 12/9/2005 5:00 PM
1 2 3 4 5 6 7 8 A Bill for an Act to amend the Trade Practices Act 9 1974 in relation to collective bargaining for small 10 business 11 12 The Parliament of Australia enacts: 13 Part 1--Preliminary 14 15 ^1 Short title 16 This Act may be cited as the Trade Practices Amendment 17 (Collective Bargaining for Small Business) Act 2005. 18 ^2 Commencement 19 This Act commences on the day on which it receives the Royal 20 Assent. 21 Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005 1 C:\ConversionData\Conversion\Lodgment\B00631D1C0CCDBFCCA25707A002609BE\05154b.r tf 12/9/2005 5:00 PM
Section ^2 1 2 3 Schedule 1 -- Amendments to the Trade 4 Practices Act 1974 5 1 Subsection 8A(6) 6 After "subsection 93(3)", insert "or 93AC(1) or (2)". 7 2 After subsection 45(8) 8 Insert: 9 (8A) Subsection (2) does not apply to a corporation engaging in conduct 10 described in that subsection if: 11 (a) the corporation has given the Commission a collective 12 bargaining notice under subsection 93AB(1) describing the 13 conduct; and 14 (b) the notice is in force under section 93AD. 15 3 Subsection 46(6) 16 After "operation of", insert "subsection 45(8A) or". 17 4 Subsection 46A(6) 18 After "operation of", insert "subsection 45(8A) or". 19 5 Before section 93 20 Insert: 21 Subdivision A--Exclusive dealing 22 6 Subsection 93(1) 23 Omit "notice, as prescribed,", substitute "a notice". 24 7 After subsection 93(1) 25 Insert: 26 (1A) To be valid, a notice under subsection (1) must: 2 Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005 C:\ConversionData\Conversion\Lodgment\B00631D1C0CCDBFCCA25707A002609BE\05154b.r tf 12/9/2005 5:00 PM
Section ^2 1 (a) be in a form prescribed by the regulations and contain the 2 information required by the form; and 3 (b) be accompanied by any other information or documents 4 prescribed by the regulations; and 5 (c) be accompanied by the fee (if any) prescribed by the 6 regulations. 7 8 After subsection 93(2A) 8 Insert: 9 (2B) If the Commission receives a purported notice under subsection (1) 10 that it considers is not a valid notice, it must, within 5 business 11 days of receiving the purported notice, give the person who made 12 the purported notice a written notice: 13 (a) stating that the person has not given a valid notice; and 14 (b) giving reasons why the purported notice does not comply 15 with this Division. 16 Definition 17 (2C) In subsection (2B): 18 business day means a day that is not a Saturday, a Sunday or a 19 public holiday in the Australian Capital Territory. 20 9 After section 93 21 Insert: 22 Subdivision B--Collective bargaining 23 93AA Definitions 24 In this Subdivision: 25 collective bargaining notice means a notice under subsection 26 93AB(1). 27 conference notice means a notice under subsection 93A(2). 28 contract means a contract, arrangement or understanding. Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005 3 C:\ConversionData\Conversion\Lodgment\B00631D1C0CCDBFCCA25707A002609BE\05154b.r tf 12/9/2005 5:00 PM
Section ^2 1 objection notice means a notice under subsection 93AC(1) or (2). 2 93AB Notification of collective bargaining 3 Notice to Commission 4 (1) A corporation that: 5 (a) has made, or proposes to make, a contract (the initial 6 contract) containing a provision of the kind referred to in 7 paragraph 45(2)(a); or 8 (b) proposes to give effect to a provision of a contract (the initial 9 contract) where the provision is of the kind referred to in 10 paragraph 45(2)(b); 11 may give the Commission a notice (the collective bargaining 12 notice) setting out particulars of the contract or proposed contract, 13 but only if the following 3 requirements are satisfied. 14 Note 1: Subsection (6) deals with the form etc. of a collective bargaining 15 notice. 16 Note 2: Section 93AD sets out when a collective bargaining notice comes into 17 force. 18 First--making of initial contract 19 (2) First, the corporation must have made, or propose to make, the 20 initial contract with 1 or more persons (the contracting parties) 21 about: 22 (a) the supply of particular goods or services to; or 23 (b) the acquisition of particular goods or services from; 24 another person (the target) by the corporation and the contracting 25 parties. 26 Second--making of contracts with target 27 (3) Second, the corporation must reasonably expect that it will make 1 28 or more contracts with the target about: 29 (a) the supply of 1 or more of those goods or services to; or 30 (b) the acquisition of 1 or more of those goods or services from; 31 the target by the corporation. 4 Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005 C:\ConversionData\Conversion\Lodgment\B00631D1C0CCDBFCCA25707A002609BE\05154b.r tf 12/9/2005 5:00 PM
Section ^2 1 Third--price of contracts with target 2 (4) Third, the corporation must reasonably expect that: 3 (a) in the case where the corporation reasonably expects to make 4 only 1 contract with the target--the price for the supply or 5 acquisition of those goods or services under that contract; or 6 (b) in the case where the corporation reasonably expects to make 7 2 or more contracts with the target--the sum of the prices for 8 the supply or acquisition of those goods or services under 9 those contracts; 10 will not exceed $10,000,000, or such other amount as is prescribed 11 by the regulations, in any 12 month period. The regulations may 12 prescribe different amounts in relation to different industries. 13 Timing of reasonable expectation 14 (5) The corporation must have the reasonable expectation referred to 15 in subsections (3) and (4): 16 (a) at the time of giving the collective bargaining notice; and 17 (b) if the initial contract has been made--at the time it was 18 made. 19 Form of notice etc. 20 (6) To be valid, a collective bargaining notice must: 21 (a) be in a form prescribed by the regulations and contain the 22 information required by the form; and 23 (b) be accompanied by any other information or documents 24 prescribed by the regulations; and 25 (c) be accompanied by the fee (if any) prescribed by the 26 regulations. 27 Notice given by, or on behalf of, contracting persons 28 (7) A collective bargaining notice may be expressed to be given on 29 behalf of one or more of the contracting parties, but only if those 30 parties could have given the notice on their own behalf. If the 31 notice is so expressed, then it is also taken to have been given by 32 those parties. Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005 5 C:\ConversionData\Conversion\Lodgment\B00631D1C0CCDBFCCA25707A002609BE\05154b.r tf 12/9/2005 5:00 PM
Section ^2 1 When a notice may not be given 2 (8) A corporation may not give a collective bargaining notice in 3 relation to a contract or proposed contract if: 4 (a) it has applied for an authorisation in relation to the contract 5 or proposed contract; and 6 (b) the Commission has made a determination dismissing the 7 application; and 8 (c) either: 9 (i) the Tribunal has made a determination on an application 10 for a review of the Commission's determination; or 11 (ii) the time for making such an application for review has 12 ended without the making of an application. 13 Invalid collective bargaining notice 14 (9) If the Commission receives a purported collective bargaining 15 notice that it considers is not a valid collective bargaining notice, it 16 must, within 5 business days of receiving the purported notice, give 17 the person who made the purported notice a written notice: 18 (a) stating that the person has not given a valid collective 19 bargaining notice; and 20 (b) giving reasons why the purported collective bargaining 21 notice does not comply with this Division. 22 Definition 23 (10) In this section: 24 business day means a day that is not a Saturday, a Sunday or a 25 public holiday in the Australian Capital Territory. 26 trade union has the meaning given by subsection 4(1) of the 27 Workplace Relations Act 1996. 6 Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005 C:\ConversionData\Conversion\Lodgment\B00631D1C0CCDBFCCA25707A002609BE\05154b.r tf 12/9/2005 5:00 PM
Section ^2 1 93AC Commission's objection notice 2 Commission's objection notice--per se provisions 3 (1) If a corporation gives the Commission a collective bargaining 4 notice in relation to: 5 (a) a contract, or proposed contract, containing a provision of the 6 kind referred to in subparagraph 45(2)(a)(i) or (b)(i) 7 (exclusionary provisions); or 8 (b) a contract, or proposed contract, containing a price fixing 9 provision; 10 then the Commission may, if it is satisfied that any benefit to the 11 public that has resulted or is likely to result or would result or be 12 likely to result from the provision does not or would not outweigh 13 the detriment to the public that has resulted or is likely to result or 14 would result or be likely to result from the provision, give the 15 corporation a written notice (the objection notice) stating that it is 16 so satisfied. 17 Commission's objection notice--competition provisions 18 (2) If a corporation gives the Commission a collective bargaining 19 notice in relation to a contract, or proposed contract, containing a 20 provision of the kind referred to in subparagraph 45(2)(a)(ii) or 21 (b)(ii) (other than a price fixing provision), then the Commission 22 may, if it is satisfied that: 23 (a) the provision has or would have the purpose, or has or is 24 likely to have or would have or be likely to have the effect, of 25 substantially lessening competition (within the meaning of 26 section 45); and 27 (b) in all the circumstances, either: 28 (i) the provision has not resulted or is not likely to result, or 29 would not result or be likely to result, in a benefit to the 30 public; or 31 (ii) any benefit to the public that has resulted or is likely to 32 result, or would result or be likely to result, from the 33 provision does not or would not outweigh the detriment 34 to the public constituted by any lessening of competition Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005 7 C:\ConversionData\Conversion\Lodgment\B00631D1C0CCDBFCCA25707A002609BE\05154b.r tf 12/9/2005 5:00 PM
Section ^2 1 that has resulted or is likely to result, or would result or 2 be likely to result, from the provision; 3 give the corporation a written notice (the objection notice) stating 4 that it is so satisfied. 5 Reasons for objection notice 6 (3) The Commission must, at the time it gives a corporation an 7 objection notice, give the corporation a written statement of its 8 reasons for giving the notice. 9 Conference before objection notice 10 (4) The Commission must comply with section 93A (conferences 11 about draft objection notices) before giving an objection notice. 12 Commission to seek additional information 13 (5) For the purposes of deciding whether or not to give an objection 14 notice: 15 (a) the Commission must seek such relevant information as it 16 considers reasonable and appropriate; and 17 (b) the Commission may make a decision on the basis of: 18 (i) any information so obtained; or 19 (ii) any other information given to it by the corporation or 20 any other person; or 21 (iii) any other information in its possession. 22 Definition 23 (6) In this section: 24 price fixing provision means a provision of the kind referred to in 25 subsection 45A(1). 8 Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005 C:\ConversionData\Conversion\Lodgment\B00631D1C0CCDBFCCA25707A002609BE\05154b.r tf 12/9/2005 5:00 PM
Section ^2 1 93AD When collective bargaining notice comes into force and ceases 2 to be in force 3 When collective bargaining notice comes into force 4 (1) A collective bargaining notice comes into force: 5 (a) at the end of the period which is 14 days or such longer 6 period as is prescribed by the regulations, starting on the day 7 the corporation gave the Commission the notice; or 8 (b) if the Commission gives the corporation a conference notice 9 during the period referred to in paragraph (a) and then 10 decides not to give the corporation an objection notice-- 11 when the Commission makes that decision. 12 (2) However, a collective bargaining notice does not come into force 13 if: 14 (a) it is withdrawn, or taken to be withdrawn, before it would 15 come into force under subsection (1); or 16 (b) the Commission gives the corporation a conference notice 17 during the period referred to in paragraph (1)(a) and then 18 gives the corporation an objection notice. 19 Note: Section 93AE deals with the withdrawal of a collective bargaining 20 notice. 21 When collective bargaining notice ceases to be in force 22 (3) A collective bargaining notice ceases to be in force at the earliest 23 of the following times: 24 (a) when it is withdrawn or taken to be withdrawn; 25 (b) if the Commission gives the corporation an objection 26 notice--on the 31st day after the relevant day or on a later 27 day specified in writing by the Commission; 28 (c) at the end of the period of 3 years beginning on the day the 29 corporation gave the collective bargaining notice. 30 Note: Section 93AE deals with the withdrawal of a collective bargaining 31 notice. 32 (4) For the purposes of subsection (3), the relevant day is worked out 33 in accordance with this table: Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005 9 C:\ConversionData\Conversion\Lodgment\B00631D1C0CCDBFCCA25707A002609BE\05154b.r tf 12/9/2005 5:00 PM
Section ^2 1 Relevant day In this situation: the relevant day is: 1 If an application is not made to the the day the Commission gave the notice. Tribunal for a review of the Commission's decision to give the objection notice 2 If an application is made to the (a) if the review application is Tribunal for a review of the withdrawn--the day of the Commission's decision to give the withdrawal; or objection notice (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. 2 93AE Withdrawal of collective bargaining notice 3 Withdrawal by corporation 4 (1) A corporation may, by written notice given to the Commission, 5 withdraw a collective bargaining notice it has given the 6 Commission. 7 (2) The corporation may do so at any time before the Commission 8 gives it an objection notice in relation to the collective bargaining 9 notice. 10 Deemed withdrawal 11 (3) If: 10 Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005 C:\ConversionData\Conversion\Lodgment\B00631D1C0CCDBFCCA25707A002609BE\05154b.r tf 12/9/2005 5:00 PM
Section ^2 1 (a) a corporation gives the Commission a collective bargaining 2 notice in relation to a contract or proposed contract; and 3 (b) before or after the corporation gave the notice, it applies to 4 the Commission for an authorisation for that contract or 5 proposed contract; and 6 (c) the Commission makes a determination either dismissing the 7 application or granting an authorisation in respect of the 8 application; and 9 (d) either: 10 (i) the Tribunal makes a determination on an application 11 for a review of the Commission's determination; or 12 (ii) the time for making such an application for review ends 13 without the making of an application; 14 then the collective bargaining notice is taken to be withdrawn. 15 93AF Only 1 collective bargaining notice may be given 16 If: 17 (a) a corporation gives the Commission a collective bargaining 18 notice in relation to a contract or proposed contract; and 19 (b) either: 20 (i) the Commission gives the corporation an objection 21 notice in relation to the contract or proposed contract; or 22 (ii) the collective bargaining notice is taken to be withdrawn 23 under subsection 93AE(3); 24 then the corporation may not give the Commission a further 25 collective bargaining notice in relation to the same contract or 26 proposed contract or in relation to a contract or proposed contract 27 to the like effect. 28 10 Before section 93A 29 Insert: 30 Subdivision C--Conferences 31 11 Subsection 93A(1) 32 After "subsection 93(3)", insert "or 93AC(1) or (2)". Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005 11 C:\ConversionData\Conversion\Lodgment\B00631D1C0CCDBFCCA25707A002609BE\05154b.r tf 12/9/2005 5:00 PM
Section ^2 1 Note: The heading to section 93A is altered by omitting "in relation to exclusive dealing". 2 12 Subsections 93A(3), (4) and (10A) 3 After "subsection 93(3)", insert "or 93AC(1) or (2)". 4 13 Subsection 93A(12) 5 After "subsection 93(1)", insert "or 93AB(1)". 6 14 Before section 95 7 Insert: 8 Subdivision D--Register of notifications 9 15 Paragraph 95(1)(c) 10 After "section 93", insert "or 93AB". 11 16 Paragraph 95(1)(f) 12 Omit "by which notices under section 93 were given", substitute "in 13 relation to notices given by corporations under section 93 or 93AB". 14 17 Before paragraph 95(1)(h) 15 Insert: 16 (gb) details of the specification of any day by the Commission 17 under paragraph 93AD(3)(b); and 18 18 Paragraph 95(2)(a) 19 After "section 93", insert "or 93AB". 20 19 Section 101A 21 After "subsection 93(3)", insert "or 93AC(1) or (2)". 22 Note: The heading to section 101A is altered by inserting "or 93AC(1) or (2)" after 23 "subsection 93(3)". 24 20 After subsection 102(5) 25 Insert: 12 Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005 C:\ConversionData\Conversion\Lodgment\B00631D1C0CCDBFCCA25707A002609BE\05154b.r tf 12/9/2005 5:00 PM
Section ^2 1 (5AA) Upon a review of the giving of a notice by the Commission under 2 subsection 93AC(1): 3 (a) if the person who applied for the review satisfies the Tribunal 4 that any benefit to the public that has resulted or is likely to 5 result or would result or be likely to result from the provision 6 outweighs or would outweigh the detriment to the public that 7 has resulted or is likely to result or would result or be likely 8 to result from the provision--the Tribunal must make a 9 determination setting aside the notice; or 10 (b) if the person who applied for the review does not so satisfy 11 the Tribunal--the Tribunal must make a determination 12 affirming the notice. 13 (5AB) Upon a review of the giving of a notice by the Commission under 14 subsection 93AC(2): 15 (a) if the person who applied for the review satisfies the Tribunal 16 that: 17 (i) the provision does not and would not have the purpose, 18 and does not and is not likely to have or would not have 19 and would not be likely to have the effect, of 20 substantially lessening competition (within the meaning 21 of section 45); or 22 (ii) in all the circumstances: 23 (A) the provision has resulted or is likely to result, 24 or would result or be likely to result, in a 25 benefit to the public; and 26 (B) that benefit outweighs or would outweigh the 27 detriment to the public constituted by any 28 lessening of competition that has resulted or is 29 likely to result, or would result or be likely to 30 result, from the provision; 31 the Tribunal must make a determination setting aside the 32 notice; or 33 (b) if the person who applied for the review does not so satisfy 34 the Tribunal--the Tribunal must make a determination 35 affirming the notice. Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005 13 C:\ConversionData\Conversion\Lodgment\B00631D1C0CCDBFCCA25707A002609BE\05154b.r tf 12/9/2005 5:00 PM
Section ^2 1 (5AC) If the Tribunal sets aside a notice (the objection notice) given by 2 the Commission under subsection 93AC(1) or (2), then: 3 (a) if the Commission gave the objection notice as part of a 4 process starting when the Commission gave a notice under 5 subsection 93A(2) (conference notice) during the period 6 described in paragraph 93AD(1)(a)--the Commission is 7 taken for the purposes of paragraph 93AD(1)(b) to have 8 decided not to give the objection notice at the time the 9 Tribunal set it aside; and 10 (b) for the purposes of subsections 93AD(2) and (3), the 11 objection notice is taken not to have been given. 12 21 Subsection 109(1A) 13 After "subsection 93(3)", insert "or 93AC(1) or (2)". 14 22 Paragraph 151AJ(7)(b) 15 After "operation of", insert "subsection 45(8A) or". 16 23 Paragraph 151AY(1)(b) 17 After "subsection 93(1)", insert "or 93AB(1)". 18 Note: The heading to section 151AY is altered by omitting "section 93" and substituting 19 "Part VII". 20 24 Paragraph 151AY(2)(c) 21 After "subsection 93(3)", insert "or 93AC(1) or (2)". 22 25 Subsection 155(1) 23 After "subsection 93(3)", insert "or 93AC(1) or (2)". 24 26 After subsection 45(8) of the Schedule 25 Insert: 26 (8A) Subsection (2) does not apply to a person engaging in conduct 27 described in that subsection if: 28 (a) the person has given the Commission a collective bargaining 29 notice under subsection 93AB(1) describing the conduct; and 30 (b) the notice is in force under section 93AD. 14 Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005 C:\ConversionData\Conversion\Lodgment\B00631D1C0CCDBFCCA25707A002609BE\05154b.r tf 12/9/2005 5:00 PM
Section ^2 1 27 Subsection 46(6) of the Schedule 2 After "operation of", insert "subsection 45(8A) or". 3 28 Application 4 The amendments made by this Schedule apply in relation to contracts or 5 arrangements made, or understandings arrived at, after the 6 commencement of this Schedule. 7 29 Saving 8 (1) Regulations in force for the purposes of subsection 93(1) of the Trade 9 Practices Act 1974 immediately before the commencement of this 10 Schedule have effect, after that commencement, as if they had been 11 made for the purposes of subsection 93(1A) of that Act after that 12 commencement. 13 (2) A notice given in accordance with subsection 93(1) of the Trade 14 Practices Act 1974 before the commencement of this Schedule has 15 effect, after that commencement, as if it had been given in accordance 16 with subsection 93(1A) of that Act after that commencement. 17 18 Trade Practices Amendment (Collective Bargaining for Small Business) Bill 2005 15 C:\ConversionData\Conversion\Lodgment\B00631D1C0CCDBFCCA25707A002609BE\05154b.r tf 12/9/2005 5:00 PM