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2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FAIR WORK (JOB SECURITY AND FAIRER BARGAINING) AMENDMENT BILL 2012
EXPLANATORY MEMORANDUM
Circulated by the authority of Adam Bandt
FAIR WORK (JOB SECURITY AND FAIRER BARGAINING) AMENDMENT BILL 2012
OUTLINE
The Fair Work (Job Security and Fairer Bargaining) Amendment Bill 2012 amends the Fair Work
Act 2009.
The Bill improves the operation of the Fair Work Act through a number of amendments.
Additional objects of the Act will be inserted; namely:
· providing workplace relations laws that enhance job security; and
· promoting full employment in Australia; and
· helping working Australians to achieve a better work/life balance.
The Bill will also provide that if a dispute results in a workplace determination, FWA must have
regard to the job security of the employees who will be covered by the determination; and the
workloads of the employees who will be covered by the determination. It will also clarify that
employers and employees are entitled to bargain about job security and workloads.
The Bill will also require an employer to give three days notice of a lockout or any change in
normal operation preparatory to a lockout.
Additional measures in the Bill give FWA the capacity to make orders that only suspend or
terminate the specific action that is causing significant economic harm or threatening to
endanger the life, the personal safety or health, or the welfare, of the population or causing
significant damage to the Australian economy. Consideration must also be given to whether
employer response action is disproportionate in the circumstances; or whether the employer
response action is undertaken to make an application to FWA more likely to succeed.
The Bill also introduces changes regarding permitted matters capable of settlement. For an
order terminating protected industrial action, FWA must be satisfied that terms to deal with all
the permitted matters at issue during bargaining for the proposed enterprise agreement could
be included in an industrial action related workplace determination. Alternatively, that all the
bargaining representatives for the proposed enterprise agreement must have agreed to settle all
the permitted matters at issue during bargaining for the proposed enterprise agreement by
another means by which a binding settlement of those matters might be achieved.
Similar provisions are inserted for Ministerial declarations.
NOTES ON CLAUSES
Clause 1 - Short Title
This is a formal provision specifying the short title.
Clause 2 - Commencement
The Bill's provisions are to commence the day after the Bill receives Royal Assent
Clause 3 - Schedules
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 to the Fair Work Act 2009
Item 1 amends the object of the Fair Work Act 2009, by inserting at the end of section 3 ` ; and
(h) providing workplace relations laws that enhance job security; and (i) promoting full
employment in Australia; and (j) helping working Australians to achieve a better work/life
balance.'
Item 2 amends the permitted matters about which enterprise agreements may be made in
subsection 172(1), by inserting after paragraph 172(1)(b) '(ba) matters pertaining to the job
security of the employees who will be covered by the agreement; (bb) matters pertaining to the
workloads of the employees who will be covered by the agreement;'.
Item 3 amends the requirement in paragraph 186(6)(a) for a term about settling disputes to be
included in enterprise agreements, by inserting 'by conciliation' after the word 'disputes'.
Item 4 amends the requirement in subsection 186(6) for a term about settling disputes to be
included in enterprise agreements, by inserting after paragraph 186(6)(a) '(ab) that provides
for FWA to arbitrate disputes covered by paragraph (a) that have not been settled; and'.
Items 3 and 4 operate together to require that enterprise agreements provide a procedure to
first conciliate disputes, and then arbitrate those disputes.
Item 5 amends paragraph 266(1)(c) by inserting the word 'and' at the end of the paragraph, for
the purpose of inserting the amendment made in item 6
Item 6 amends the requirements that must be met before FWA must make an industrial action
related workplace determination in subsection 266(1) by inserting after paragraph 266(1)(c)
'(d) the Minister has made all reasonable efforts to assist in settling those matters;'.
Item 7 amends the factors that FWA must take into account in deciding which terms to include
in a workplace determination in section 275 by inserting after paragraph 275(g) '(ga) the job
security of the employees who will be covered by the agreement; (gb) the workloads of the
employees who will be covered by the agreement:'.
Item 8 amends the requirements that must be fulfilled when an employer gives notice to
bargaining representatives and employees of an employee response action in subsection 414(5)
by inserting after 'engages' ', or changes normal operations for the purposes of engaging'.
Item 9 amends the requirements regarding giving notice to bargaining representatives and
employees of an employee response action in subsection 414(5) by inserting '(5A) The period of
notice for the purposes of paragraph (5)(a) must be at least 3 working days.'
Item 10 amends the prerequisite requirements that must be met before FWA may make an order
suspending or terminating protected industrial action in subsection 423(1) by omitting 'if' and
substituting 'to the extent that'. This allows for an order to be made that only suspends or
terminates the specific action that is causing significant economic harm.
Item 11 amends the circumstances where FWA can terminate protected industrial action under
section 423 where industrial action is causing, or is threatening to cause, significant economic
harm.
The new section 423(6A) requires FWA to be satisfied that all the permitted matters at issue
during bargaining for the proposed enterprise agreement could be included in a workplace
determination; or that all parties have agreed to settle all the permitted matters by another
means that would result in a binding settlement.
The new section 423(6B) amends the circumstances where FWA can suspend industrial action
that is causing, or is threatening to cause, significant economic harm.
Before issuing an order suspending protected industrial action in relation to any permitted
matters that cannot be dealt with by including terms in an industrial action related workplace
determination, FWA must be satisfied that there is a means by which a binding settlement of
those matters might be achieved (if all of the bargaining representatives for the proposed
enterprise agreement agreed to settle those matters by that means). FWA must therefore be
satisfied before terminating industrial action that all permitted matters at issue during the
bargaining are capable of being determined either by workplace determination or in a manner
agreed to by the bargaining representatives. If a party refuses to agree to a fair process for
resolving matters, then FWA may suspend, but not terminate, industrial action.
Item 12 inserts a reference to the new subsections 424(1A) and 424(1B)
Item 13 also amends the prerequisite requirements that must be met before FWA may make an
order suspending or terminating protected industrial action in subsection 424(1) by omitting
'if' and substituting 'to the extent that'. This allows for an order to be made that only suspends
or terminates the specific action that is threatening to endanger the life, the personal safety or
health, or the welfare, of the population or to cause significant damage to the Australian
economy.
Item 14 amends the circumstances where FWA can terminate protected industrial action under
section 424 where industrial action is threatening, or would threaten to endanger the life, the
personal safety or health, or the welfare, of the population; or to cause significant damage to the
Australian economy.
The new section 424(1A) requires FWA to be satisfied that all the permitted matters at issue
during bargaining for the proposed enterprise agreement could be included in a workplace
determination; or that all parties have agreed to settle all the permitted matters by another
means that would result in a binding settlement.
The new section 424(1B) amends the circumstances where FWA can suspend industrial action
that is threatening, or would threaten to endanger the life, the personal safety or health, or the
welfare, of the population; or to cause significant damage to the Australian economy.
Before issuing an order suspending protected industrial action in relation to any permitted
matters that cannot be dealt with by including terms in an industrial action related workplace
determination, FWA must be satisfied that there is a means by which a binding settlement of
those matters might be achieved (if all of the bargaining representatives for the proposed
enterprise agreement agreed to settle those matters by that means). FWA must therefore be
satisfied before terminating industrial action that all permitted matters at issue during the
bargaining are capable of being determined either by workplace determination or in a manner
agreed to by the bargaining representatives. If a party refuses to agree to a fair and binding
process for resolving matters then FWA may suspend, but not terminate, industrial action.
Item 15 amends the circumstances in which FWA may make an order terminating protected
industrial action by inserting, after section 424, section 424A, which provides that 'despite
subsections 423(1) and 424(1), FWA must not make an order terminating protected industrial
action if either or both of the following apply in relation to any employer response action
concerned: (a) the purpose of the action concerned is to make any application under section 423
or 424 more likely to succeed; (b) the action is not a proportionate response in the
circumstances.'
Item 16 amends the requirements that must be met before FWA can be satisfied that suspension
of protected industrial action is appropriate in subsection 426(5) by inserting after paragraph
426(5)(a) '(ab) in the case of employer response action - whether the industrial action is being
engaged in for the purposes of making any application more likely to succeed;'.
Item 17 amends the circumstances where the Minister can make a declaration terminating
protected industrial action where the action is threatening, or would threaten to endanger the
life, the personal safety or health, or the welfare, of the population; or to cause significant
damage to the Australian economy.
The new section 431(1A) requires the Minister to be satisfied that all the permitted matters at
issue during bargaining for the proposed enterprise agreement could be included in a workplace
determination; or that all parties have agreed to settle all the permitted matters by another
means that would result in a binding settlement.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Fair Work Act (Job Security and Fairer Bargaining) Amendment Bill 2012
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
This Bill amends the objects of the Fair Work Act 2009 to include the provision of laws
protecting job security, and the promotion of full employment. It further amends the
requirements for conciliation provisions in enterprise agreements, the permitted matters in
enterprise agreements, and the involvement of the Minister in settling industrial disputes.
Finally, it amends the power of FWA to suspend or terminate industrial disputes.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Adam Bandt MP