A Bill for an Act to amend the Workplace Relations Act 1996

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Workplace Relations Amendment Act 2000

2 Commencement

This Act commences on the day on which it receives the Royal Assent.

3 Schedule

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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—Amendment of the Workplace Relations Act 1996

1 Section 3

Repeal the section, substitute:

3 Principal object of this Act

The principal object of this Act is to provide a framework for cooperative industrial relations which promotes the economic prosperity and welfare of the people of Australia by:

(a) encouraging the pursuit of high employment, improved living standards, better pay, low inflation and international competitiveness through higher productivity and a flexible and fair labour market; and

(c) within the framework provided by this Act and with the protection’s provided by the Commission, ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer, employees and their organisations ; and

(d) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances; and

(e) providing the means:

(i) for wages and conditions of employment to be determined as far as possible by the agreement of employers, employees and their organisations , upon a foundation of minimum standards; and

(ii) to ensure that there is an effective award system providing secure, relevant, and consistent wages and conditions of employment; and

(f) providing a framework of rights and responsibilities for employers and employees, and their organisations, which supports fair and effective bargaining and ensures that they abide by awards and agreements applying to them; and

(g) ensuring freedom of association, including the rights of employers and employees to join an organisation or association of their choice, or not to join an organisation or association, while maintaining the rights of employers and employees to organise and bargain collectively; and

(h) encouraging and facilitating the development and registration of organisations of employers and employees, and ensuring these organisations are representative of and accountable to their members; and

(i) enabling the Commission to prevent and settle industrial disputes

(i) so far as possible, by conciliation; and

(ii) where necessary, by arbitration; and

(j) assisting employees to balance their work and family responsibilities effectively through the development of mutually beneficial work practices; and

(k) respecting and valuing the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; and

(l) ensuring that labour standards meet Australia’s international obligations.

2 Section 88A

Repeal the section, substitute:

88A Objects of Part

The objects of this Part are to ensure that:

(a) minimum wages and conditions of employment are protected and maintained at a relevant and fair levels by a system of enforceable awards; and

(b) awards provide relevant, secure and consistent wages and conditions of employment as compared to market rates; and

(c) awards are suited to the efficient performance of work according to the needs of particular workplaces or enterprises while the interests of employees are properly taken into account; and

(d) awards are continually maintained to reflect changes in the relevant workplaces; and

(e) the Commission’s functions and powers in relation to making and varying awards are performed and exercised in a way that encourages:

(i) the making of agreements between employers and employees at the workplace or enterprise level; and

(ii) the prevention and settlement of industrial disputes.

3 After paragraph 88B(3)(a)

Insert:

(aa) the need to ensure, so far as it can, that the system of awards provides for secure, relevant and consistent wages and conditions of employment;

4 Section 89

Repeal the section, substitute:

89 General functions of Commission

The functions of the Commission are:

(a) to prevent and settle industrial disputes:

(i) in so far as possible, by conciliation; and

(ii) where necessary, by arbitration; and

(b) such other functions as are conferred on the Commission by this or any other Act.

5 Section 89A

Repeal the section.

6 Section 106

Repeal the section.

7 After Section 113

Insert

113AA Commission may vary or set aside award because of effect of former section 89A

(1) An application may be made to the Commission to make an order to vary or set aside a relevant award or any of the terms of a relevant award because of the effect of former section 89A.

(2) In considering whether to make an order under this section the Commission must have regard to

(a) the findings as to the industrial dispute giving rise to the award; ;

(b) the matters that were at issue when the award was made;

(c) the circumstances in which the award was made;

(d) the extent to which a matter was not included in the award because of the operation of former section 89A.

(e) such principles as may be established by the Full Bench for varying or revoking awards under this section.

(3) An order under this section may be subject to conditions or limitations.

(4) An organisation to which an order applies must comply with the order.

(5) The Court may, on application by the Minister or a person or organisation affected by an order made under this section, make such orders as it thinks fit to ensure compliance with that order.

(6) For the purposes of this section a relevant award is an award made during the processes of award simplification following the enactment of the Workplace Relations and other Legislation Amendment Act 1996.

8 Section 170L

Repeal the section, substitute

170L Object

The object of this Part is to facilitate and encourage the making, and certifying by the Commission, of agreements.

9 Subsection 170LA(2) and (3)

Repeal the subsections.

10 After section 170MK

Insert:

170MKA Parties must genuinely try to reach agreement

(1) A negotiating party to a proposed agreement must take part in negotiations in good faith and genuinely try to reach agreement with the other negotiating party or parties.

(2) This section is not to be taken to require a negotiating party to:

(a) agree on any matter for inclusion in an agreement; or

(b) enter into an agreement.

11 After section 170MK

Insert:

170MKB Powers of Commission in respect to negotiations

The Commission has the power to make orders to:

(a) ensure that negotiating parties to a proposed agreement negotiate in good faith; and

(b) promote the efficient conduct of negotiations in respect of a proposed agreement; and

(c) otherwise facilitate the making of a proposed agreement.

12 After section 170MK

Insert:

170MKC Orders that may be made by Commission

(1) A negotiating party may apply to the Commission for an order under this section.

(2) If deciding what orders (if any) to make, the Commission:

(a) must consider the conduct of each of the parties to the negotiations, in particular, whether the party concerned has:

(i) agreed to meet at reasonable times proposed by another party; or

(ii) attended meetings that the party had agreed to attend; or

(iii) complied with negotiating procedures agreed to by the parties; or

(iv) capriciously added or withdrawn items for negotiation; or

(v) disclosed relevant information as appropriate for the purposes of the negotiations; or

(vi) refused or failed to negotiate with one or more of the parties; or

(vii) in or in connection with the negotiations refused or failed to negotiate with a person who is entitled under this Part to represent an employee; and

(b) may consider:

(i) proposed conduct or any of the parties (including proposed conduct of a kind referred to in paragraph (a)); and

(ii) any other relevant matter.

(3) The Commission may make an order that a negotiating party take, or refrain from taking, specified action and, without limiting the power of the Commission to make an order under this section, the Commission may make an order to:

(a) require a negotiating party to consider and respond to proposals made by another negotiating party; or

(b) require a negotiating party to adhere to commitments given to another negotiating party or parties in respect of meetings and responses to matters raised during negotiations;

(c) set time limits for the completion of negotiations in respect of a proposed agreement.

(4) The Commission may not make an order which will

(a) prevent a negotiating party from trying to reach an agreement with another negotiating party;

(b) require a negotiating party to:

(i) agree on any matter for inclusion in an agreement; or

(ii) enter into an agreement.

13 After section 170MW

Insert:

170MWC Power of Commission to terminate bargaining period and arbitrate

(1) The Commission may, by order, terminate a bargaining period if, after giving the negotiating parties an opportunity to be heard, it is satisfied that any of the circumstances set out in subsections (3) to (5) exists or existed.

(2) An application to the Commission for an order under this section may be made by:

(a) a negotiating party to a proposed agreement; or

(b) the Minister.

(3) A circumstance for the purposes of subsection (1) is that industrial action that is being taken to support or advance claims in respect of the proposed agreement is threatening to:

(a) endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

(b) cause significant damage to the Australian economy or an important part of it.

(4) A circumstance for the purposes of subsection (1) is that there is no reasonable prospect of the negotiating parties reaching an agreement and that it is in the public interest to terminate the bargaining period.

(5) A circumstance for the purposes of subsection (1) is that after what the Commission regards as reasonable opportunities to reach agreement have been available, the negotiating parties have agreed to submit their unresolved claims to arbitration.

(6) If the Commission is satisfied that any of the circumstances set out in subsection (3) to (5) exist it may make an order terminating the bargaining period, but it may not make an order suspending a bargaining period.

14 After subsection 170MX

Insert:

170MXA What happens if Commission terminates a bargaining period under section 170MWC

(1) This section applies if a bargaining period is terminated under section 170MWC.

(2) As soon as practicable, the Commission must begin to exercise the arbitration powers mentioned in section 170MYA to make an award. This subsection applies even if the Commission has already attempted conciliation during the bargaining period.

(3) In exercising those arbitration powers the Commission must have regard to the following:

(a) the matters that were at issue during the bargaining period;

(b) the merits of the case;

(c) the interests of the negotiating parties and the public interest;

(d) how productivity might be improved in the business or part of the business concerned;

(e) the relative bargaining strength of the parties;

(f) the history of wage fixing in the particular award, including whether it was characterised as a paid rates award; and

(g) any relevant principles formulated by a Full Bench for the purposes of this subsection.

(4) Subsection (3) does not, by implication, limit the matters to which the Commission may have regard.

15 After section 170MY

Insert:

170MYA Commission’s powers where section 170MXA applies

The Commission has the arbitration powers in relation to the matters mentioned in section 170MXA that it would have under Part VI.

16 After section 170MZ

Insert:

170MZA Awards under section 170MXA

(1) An award under subsection 170MXA(2) must specify a date as its nominal expiry date but such a date may not be later than two years after the date on which the award is made.

(2) Subject to this section, the award remains in operation at all times after it commences.

(3) The award has effect subject to any conditions that are specified in the award.

(4) Before the award's nominal expiry date has passed, the Commission must not revoke the award unless it is satisfied that:

(a) the parties who are bound by the award have agreed to the revocation; and

(b) the revocation would not be against the public interest.

(5) If:

(a) the award's nominal expiry date has passed; and

(b) either:

(i) a party bound by the award; or

(ii) a majority of the employees to whom the award applies; request the Commission in writing to terminate the award; and

(c) the Commission has given the following a reasonable opportunity to be heard in relation to the request:

(i) the employer bound by the award;

(ii) any organisations bound by the award;

(iii) the employees to whom the award applies; and

(d) the Commission considers that it is not contrary to the public interest to terminate the award;

the Commission must terminate the award.

(6) The award may only be varied for the purpose of:

(a) removing ambiguity or uncertainty; or

(b) including, omitting or varying a term (however expressed) that authorises an employer to stand-down an employee.

(7) Before the award's nominal expiry date has passed, no bargaining period may be initiated under section 170MI for negotiating an agreement in relation to the employment of employees whose employment is dealt with in the award.

17 Section 170N

Repeal the section.

18 Subsection 298L(1)

Add:

(o) in the case of an employee — has refused to accept an industrial instrument on offer or has expressed a preference for an alternative industrial instrument;

19 Section 298M

Repeal the section, substitute:

298M Inducements to cease membership etc of industrial associations etc

An employer, or a person who has engaged an independent contractor, must not (whether by threats or promises or otherwise) induce an employee, or the independent contractor (as the case requires) to

(a) stop being an officer or member of an industrial association, or

(b) consent to, or vote in favour of, the making of a particular type of industrial agreement.