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2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Fair Work Amendment (Stop Work to Stop Warming) Bill 2019
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
Adam Bandt MP
Fair Work Amendment (Stop Work to Stop Warming) Bill 2019
OUTLINE
Global warming is a threat to the interests and wellbeing of the entire Australian population,
including workers. Workers currently have constitutionally protected rights to engage in political
speech, including political protest, about global warming and government policies needed to tackle
it. This Bill puts beyond doubt that employees covered by the Fair Work Act 2009 have a right to
take industrial action for the purpose of demanding that action be taken to address climate change.
It also clarifies that employees and employers may bargain and agree about climate change
matters.
The Bill does this through two primary means. The Bill firstly introduces a new category of
'protected climate change industrial action'. Employees taking such action are immune from
having any action taken against them under any Australian law, provided their action remains
within certain limits (such as not being a threat to anyone else's life or safety).
Secondly, the Bill permits employees and employers to include in their enterprise agreements
matters pertaining to climate change. This will also permit employees to take 'protected industrial
action' within the existing meaning of the Act - action taken in support of securing an enterprise
agreement - about such matters.
Unlike the new category of 'protected climate change action', where a general legal immunity
applies to any such action taken at any time, the usual restrictions of the Act regarding protected
action will apply to employees, employers and organisations taking protected action in pursuit of a
matter pertaining to climate change.
FINANCIAL IMPACT
The bill will have no financial impact.
NOTES ON CLAUSES
Clause 1: Short Title
This clause provides for the Act to be cited as the Fair Work Amendment (Stop Work to Stop
Warming) Act 2019.
Clause 2: Commencement
This clause provides for the whole of this Act to commence the day after it receives the Royal
Assent.
Clause 3: Schedules
This clause gives effect to the Schedules. It provides that legislation 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to this Act is amended or repealed as set out in the applicable items in the Schedule concerned,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 - Amendments of the Fair Work Act 2009
Item 1: Section 12
Inserts protected climate change industrial action into the dictionary.
Item 2: At the end of subsection 172(1)
Provides that an enterprise agreement is permitted to contain matters pertaining to climate change.
This is a broad definition which not only encompasses climate change related matters directly
related to a particular enterprise (such as the use of renewable energy or the financial investments
of the employer), but also matters relating to the effects of climate change (such as extreme heat
or drought) as well as policy and government action of climate change (such as support for a
particular emissions reduction target).
Item 3: Paragraph 341(2)(c)
Extends the meaning of workplace right to include protected climate change industrial action.
Item 4: Section 406 (paragraph beginning "Division 10")
Adds protected climate change industrial action to the Guide for this part.
Item 5: At the end of subsections 409(1) and 410(1)
Excludes protected climate change industrial action from the definition of employee claim action
(for which ballots and other steps are required under Division 2). Accordingly, the usual
requirements for industrial action to be protected industrial action do not apply to protected climate
change industrial action.
Item 6: At the end of section 411
Provides that protected climate change industrial action is not employer response action.
Item 7: Subsection 417(1)
Allows persons referred to in 417(2) to engage in protected climate change industrial action before
nominal expiry date of enterprise agreement etc.
Item 8: Subsection 418(1)
Removes the obligation on the FWC to make an order to stop protected climate change industrial
action.
Item 9: Subsection 419(1)
Removes the obligation on the FWC to make an order to stop protected climate change industrial
action for non-national system employees or non-national system employers.
Item 10: Paragraph 421(2)(b)
A person is not required to comply with an order issued by the FWC under section 418, 419 or 420
if the order relates to protected climate change industrial action.
Item 11: Subsection 474(1)
Provides that an employee who engages in protected climate change industrial action can be paid
by the employer.
Item 12: After section 477
Provides immunity from any action against any employee or organisation under any law of
Australia where the employee or organisation has organised or engaged in protected climate
change industrial action.
It also provides for the FWC to order the protected climate change industrial action be stopped if it
is deemed to threaten or endanger life, personal safety or health and welfare.
Item 13: In the appropriate position in Schedule 1
Part 9 - Amendments made by the Fair Work Amendment (Stop Work to Stop
Warming) Act 2019
Sections 477A and 477B of this Act as inserted by the Fair Work Amendment (Stop Work to Stop
Warming) Act 2019 apply in relation to industrial action that occurs on or after the commencement
of this part.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Fair Work Amendment (Stop Work to Stop Warming) Bill 2019
This bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the bill
Global warming is a threat to the interests and wellbeing of the entire Australian population,
including workers. Workers currently have constitutionally protected rights to engage in political
speech, including political protest, about global warming and government policies needed to tackle
it. This Bill puts beyond doubt that employees covered by the Fair Work Act 2009 have a right to
take industrial action for the purpose of demanding that action be taken to address climate change.
It also clarifies that employees and employers may bargain and agree about climate change
matters.
The Bill does this through two primary means. The Bill firstly introduces a new category of
'protected climate change industrial action'. Employees taking such action are immune from
having any action taken against them under any Australian law, provided their action remains
within certain limits (such as not being a threat to anyone else's life or safety).
Secondly, the Bill permits employees and employers to include in their enterprise agreements
matters pertaining to climate change. This will also permit employees to take 'protected industrial
action' within the existing meaning of the Act - action taken in support of securing an enterprise
agreement - about such matters.
Unlike the new category of 'protected climate change action', where a general legal immunity
applies to any such action taken at any time, the usual restrictions of the Act regarding protected
action will apply to employees, employers and organisations taking protected action in pursuit of a
matter pertaining to climate change.
Human rights implications
This bill does not engage any of the applicable rights or freedoms.
Conclusion
This bill is compatible with human rights because it does not raise any human rights issues.
Adam Bandt MP