The Australian Parliament is currently undertaking, in the words of the prime minister, John Howard, an "historic modernisation of Australia's workplace relations system". To this end, five bills, which will substantially amend the Workplace Relations Act 1996 (Cth), are currently being debated in the Parliament.
The Bills currently before Parliament are:
- Workplace Relations Amendment (Better Bargaining) Bill 2005
- Workplace Relations Amendment (Extended Prohibition of Compulsory Union Fees) Bill 2005
- Workplace Relations Amendment (Fair Dismissal Reform) Bill 2004
- Workplace Relations Amendment (Right of Entry) Bill 2004
- Workplace Relations Amendment (Small Business Employment Protection) Bill 2005.
Further, legislation affecting independent contractors is proposed and the Cole-based Building and Construction Industry Improvement Act 2005 and Building and Construction Industry Improvement (Consequential and Transitional) Act 2005 have now become law (see our article below).
In addition, of course, the proposed "second wave" legislative reforms will soon be introduced into Parliament. A separate update focusing specifically on these reforms will be distributed in the near future.
Workplace Relations Amendment (Better Bargaining) Bill 2005
Whilst many of the proposed changes have received considerable attention in the media, the Workplace Relations Amendment (Better Bargaining) Bill 2005, which is currently before the Senate, has slipped by unnoticed.
The Bill largely replicates the Liberal's original Better Bargaining Bill, which was first introduced into the Parliament in November 2002. The main changes proposed by the Bill are to amend the Workplace Relations Act.
- The changes are to ensure that protected action cannot be taken during the life of a certified agreement (to override the Emwest decision), including industrial action directed at a party other than the employer.
- Upon application of a negotiating party, the Commission will be allowed to suspend a bargaining period in respect of which protected action is being taken or is threatened. Any action taken during the suspension period is unprotected.
- Upon application of an affected third party or the Minister, the suspension of a bargaining period will be allowed in respect of which industrial action is being taken if the Commission considers that the action is threatening to cause significant harm to any person other than a negotiating party. Any action taken during the suspension period is unprotected.
- The changes clarify that protected action may not be taken by or against two or more companies which are treated as a single employer for the purposes of negotiating a multi-business agreement.
- The existing provision concerning industrial action taken in concert is strengthened, to clarify that industrial action will be unprotected where it involves non-protected persons.
The Bill also proposes to introduce new provisions about pattern bargaining. They include provisions to:
- clarify when pattern bargaining is said to occur, namely, where a party is negotiating two or more proposed agreements seeking common wages and conditions
- deem any industrial action in support of a pattern bargaining claim unprotected action and allow the Federal Court to grant injunctive relief to stop or prevent industrial action that is taken in support of a pattern bargaining claim
- provide two exceptions to what will be considered pattern bargaining: first, where wages or conditions are determined by the Commission as national standards (test case decisions) and second, where parties are genuinely trying to reach an agreement for a single business or part of a business
- require the Commission to suspend or terminate a bargaining period where a party is engaged in pattern bargaining.