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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
WORKPLACE
RELATIONS AMENDMENT (PROHIBITION OF COMPULSORY UNION FEES) BILL
2002
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment and
Workplace Relations, the Honourable Tony Abbott MP)
WORKPLACE RELATIONS AMENDMENT (PROHIBITION OF COMPULSORY UNION FEES) BILL 2002
This Bill will amend the certified agreement and freedom of association
provisions in the Workplace Relations Act 1996 (WR Act). The amendments
are designed to address clauses in certified agreements that purport to require
payment of bargaining services fees as well as conduct designed to compel
persons to pay bargaining services fees.
The amendments would:
• prevent the Australian Industrial Relations Commission (the Commission) from certifying or varying an agreement that contains a provision requiring the payment of a bargaining services fee;
• amend section 298Y to make clear that a clause in a certified agreement is void to the extent that it requires payment of a bargaining services fee;
• extend the definition of ‘objectionable provision’ in subsection 298Z(5) so that it includes ‘a provision of a certified agreement that requires payment of a bargaining services fee’. (This would allow the Commission to remove these clauses on application by a party to the agreement or the Office of the Employment Advocate);
• prohibit employers and others from engaging in discriminatory or injurious conduct against a person, because he or she has refused to pay, or does not propose to pay, a bargaining services fee;
• prohibit an industrial association from encouraging or inciting others to take discriminatory action against a person because he or she has refused to pay, or does not propose to pay, a bargaining services fee;
• prohibit an industrial association from demanding a bargaining services fee (whether the demand is made orally or otherwise) from another person;
• prohibit an industrial association from taking action (or threatening to take action) against a person with intent to coerce that person, or another person, to pay a bargaining services fee; and
• prohibit a person making a false or misleading representation
about another person’s liability to pay a bargaining services fee (new
section 298SB).
The amendments proposed by Schedule 1 of this Bill would
apply equally to fees for bargaining services imposed by trade unions or by
employer associations.
The proposals contained in the Bill are budget neutral.
1. This is a formal provision specifying the short title of the Act as
the Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act
2002.
2. This clause provides that clauses 1 to 3 will commence on the day
which this Act receives the Royal Assent and Schedule 1 will commence on the
28th day after the day on which the Act receives the Royal
Assent.
3. This clause provides that an Act that is specified in a Schedule is
amended or repealed as set out in that Schedule, and any other item in a
Schedule operates according to its terms.
SCHEDULE 1 – AMENDMENTS ABOUT BARGAINING SERVICES FEES
Item 1 – Subsection 170LU(2A)
1.1 This item would
simplify subsection 170LU(2A) of the WR Act by stating that the Australian
Industrial Relations Commission (the Commission) must refuse to certify an
agreement if it is satisfied that the agreement contains ‘objectionable
provisions’. The effect of this amendment, in combination with the
amendment proposed by Item 12, would be to prevent the Commission from
certifying an agreement containing a clause requiring payment of a bargaining
services fee. The amendment would also prevent the Commission from varying a
certified agreement containing such a clause – paragraph 170MD(3)(b)
prevents the Commission from approving a variation in the case where it would
not be able to certify the agreement as varied (if it were a fresh application
for certification).
Item 2 – Paragraph
170MD(7)(e)
1.2 This item is a technical amendment arising as a
result of the amendments proposed to section 298Z by Item 12. Subsection
170MD(7) states that the Commission is not able to vary a certified agreement
except in accordance with the provisions set out in its paragraphs. Existing
paragraph (e) refers to section 298Z as dealing with the removal of
‘preference clauses’. Section 298Z concerns the removal of
‘objectionable provisions’ more generally, and this item will amend
paragraph 170MD(7)(e) to reflect this.
Item 3 – Subsection
298B(1)
Item 4 – Subsection 298B(1)
1.3 These items
would insert new definitions into subsection 298B(1) of the WR Act. Section
298B sets out a number of definitions that are specific to Part
XA.
1.4 Item 3 would define the term ‘bargaining services’ to
mean services provided by or on behalf of an industrial association (i.e. an
employer or employee association) in relation to the negotiation, making,
certification, operation, extension, variation or termination of an agreement
under Part VIB of the WR Act.
1.5 Item 4 would define the term
‘bargaining services fee’ as a fee, however described, payable to an
industrial association or to someone else in lieu of an industrial association
wholly or partly for the provision of bargaining services. Membership dues are
specifically exempted from the definition.
Item 5 – Section
298C
1.6 Existing section 298C limits the operation of Part XA to the
extent provided for in Division 2, that is, to conduct by organisations
registered under the WR Act, in relation to matters covered by the WR Act, to
conduct by or which harms a constitutional corporation, and conduct in a
Territory.
1.7 Item 5 would amend section 298C to exempt Divisions 6
and 7 of Part XA from these limitations on their application. The effect of the
amendments would be that Divisions 6 and 7 will operate according to their
terms, and subject to the Constitution.
1.8 Division 6 deals with
remedies for breaches of Part XA – as these provisions are ancillary to
the prohibitions in Divisions 3, 4, 5 and proposed Division 5A of the Part and
operate by reference to them, the limitation in section 298C is unnecessary. In
relation to Division 7, the proposed amendment recognises that the Division does
not apply only to prohibited conduct – as a result of the amendments
proposed by items 11 and 12, the Division will apply not only to clauses
requiring or permitting conduct in contravention of Part XA, but also to clauses
requiring the payment of a bargaining services fee.
Item 6 –
At the end of subsection 298L(1)
1.9 Subsections 298K(1) and (2) of
the WR Act prohibit employers and others from engaging in certain discriminatory
conduct where the conduct is engaged in for a prohibited reason, or for reasons
that include a prohibited reason. Subsection 298L(1) lists the reasons which
are not allowed to be the basis for conduct listed in subsections 298K(1) and
(2).
1.10 Item 6 would expand the prohibited reasons listed in subsection
298L(1) of the WR Act by inserting a new prohibited reason that an employee or
independent contractor has not paid, has not agreed to pay, or does not propose
to pay a bargaining services fee.
1.11 Section 298Q of the WR Act prohibits certain conduct by industrial
associations. The section prohibits an industrial association from taking or
threatening to take action which has the effect of prejudicing a person in his
or her employment or possible employment in order to coerce the person to join
in industrial action or to dissuade or prevent the person from seeking a secret
ballot under an industrial law.
1.12 Item 7 proposes to include an
additional prohibition on industrial associations acting against employees,
independent contractors and others.
1.13 Proposed subsection 298Q(2)
would prohibit an industrial association from taking, or threatening to take,
action that has the effect of prejudicing a person in his or her employment or
possible employment, and from advising, encouraging or inciting another person
to take such action, if the reason for the action or conduct is that the person
does not propose to, has not agreed to pay, or has not paid, a bargaining
services fee.
1.14 Section 298S prohibits certain direct and indirect discriminatory
conduct against independent contractors by industrial
associations.
1.15 The section uses the concept of an ‘eligible
person’ to refer to an independent contractor. The term is defined in
subsection 298S(1).
1.16 Subsection 298S(2) prohibits an industrial
association from advising, inciting or encouraging another person to take
discriminatory action against an eligible person because the eligible person is
not a member of an industrial association.
1.17 Under subsection 298S(2)
an industrial association is also prohibited from taking industrial action
against an employer to coerce the employer to take discriminatory action against
an eligible person because the eligible person is not a member of an industrial
association.
1.18 The subsection also prohibits an industrial association
from taking industrial action directly against an eligible person to coerce him
or her to join an industrial association.
1.19 Item 8 would insert two
additional subsections into section 298S. Proposed subsection 298S(3) would
prohibit an industrial association from engaging in the conduct outlined in
subsection 298S(2) for a new ‘prohibited reason’. Proposed
subsection 298S(4) would define the new ‘prohibited reason’ for the
purposes of subsection 298S(3). The new prohibited reason would be that the
eligible person concerned has not paid, has not agreed to pay, or does not
propose to pay a bargaining services fee.
Item 9 – At the end of
Division 5 of Part XA
1.20 This item would insert new sections 298SA
and 298SB into Division 5. Section 298SA would provide a simple prohibition on
an industrial association, or an officer or member of an industrial association,
from demanding payment of a bargaining services fee from another
person.
1.21 Section 298SB would prohibit an industrial association from
taking, or threatening to take, action against a person with intent to coerce
the person, or another person, to pay a bargaining services fee. This amendment
would capture third-party conduct where, for example, an industrial association
of employees might take action against an employer to force an employee who is
not a member of the association to pay the bargaining services
fee.
Item 10 – After Division 5 of Part XA
1.22 This
item would insert a new Division 5A and a new section 298SC into the WR Act.
This item would prohibit a person from making a false or misleading
representation about another person’s liability to pay a bargaining
services fee.
Item 11 – At the end of section
298Y
1.23 Section 298Y currently provides that a provision of an
industrial instrument, or agreement or arrangement (whether written or
unwritten), is void to the extent that it requires or permits, or has the effect
of requiring or permitting, any conduct that would contravene Part
XA.
1.24 Item 11 would insert new subsection 298Y(2) to extend the focus
of the section beyond conduct that would contravene Part XA to certain clauses
in certified agreements. This amendment would make clear that a provision of a
certified agreement is void to the extent that it requires payment of a
bargaining services fee.
Item 12 – Subsection
298Z(5)
1.25 Section 298Z gives the Commission power to remove, on
application by a party or by the Employment Advocate, ‘objectionable
provisions’ from awards and certified agreements. Subsection 298Z(5)
defines ‘objectionable provisions’ for the purposes of section 298Z.
Item 12 would repeal the current subsection and insert new subsections 298Z(5),
(6) and (7).
1.26 Proposed new paragraph 298Z(5)(a) is similar to the
current definition in subsection 298Z(5) by defining an objectionable provision
as a provision of an award or certified agreement that requires or permits any
conduct that would be in breach of Part XA (including where Part XA would not
apply to the conduct, because the parties to the conduct fall outside the
constitutional scope of the Part).
1.27 Proposed new paragraph
298Z(5)(b) would make explicit that a provision, however described, of a
certified agreement that requires payment of a bargaining services fee is an
objectionable provision.
1.28 Proposed new subsection 298Z(6) would
clarify that for the purpose of determining whether a provision of an award or
certified agreement is an objectionable provision, it does not matter that the
provision is void because of section 298Y.
1.29 Proposed new subsection
298Z(7) would clarify the scope of the terms ‘permits’ and
‘requires’ as used in proposed new subsection 298Z(5).
Part 2 – Application provisions etc.
1.30 Part 2 contains application provisions for the amendments contained
in Part 1 of the Schedule.
1.31 Item 13 would provide that, for the purposes of subsection 170LU(2A)
and paragraph 170MD(7)(e), the amendments proposed by Part 1 of the Schedule
apply to all applications for certification or variation of agreements,
irrespective of whether those applications were made before or after
commencement of this Act.
1.32 Item 14 would provide that the amendment made by item 11 [the
insertion of new subsection 298Y(2)] would apply in relation to any certified
agreement, irrespective whether the agreement was certified before or after the
commencement of item 11.
1.33 Item 15 would make clear that the amendment to subsection 298Z(5)
made by item 12 applies to applications under that section made, but not
decided, before the commencement of item 15.
1.34 This item would also
make it clear that the Commission is able to remove provisions requiring payment
of bargaining services fees from agreements certified before or after its
commencement.
1.35 Item 16 would clarify that the amendments proposed by Part 1 of the
Schedule do not affect payments received before the commencement of that
Part.