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2000
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
WORKPLACE RELATIONS
AMENDMENT
(SECRET BALLOTS FOR PROTECTED ACTION) BILL
2000
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Minister for Employment, Workplace Relations
and Small
Business, the Honourable Peter Reith MP)
ISBN: 0642 437645
WORKPLACE RELATIONS AMENDMENT
(SECRET BALLOTS
FOR PROTECTED ACTION) BILL 2000
OUTLINE
This Bill proposes new preconditions for the
taking or organising of protected industrial action by employees and
organisations of employees. In order to be protected action under the
provisions of the Workplace Relations Act 1996 (the Act), it is proposed
that industrial action must be preceded by a secret ballot process overseen by
the Australian Industrial Relations Commission (the Commission).
The new
provisions are intended to ensure that protected industrial action is not used
as a substitute for genuine discussions during a bargaining period, and to
ensure that the final decision to take industrial action is made by the
employees directly concerned.
Under the new provisions, a union or
employees would be required to apply to the Commission for an order that a
‘protected action ballot’ be held. The Bill includes proposed
amendments and new provisions to ensure that where employees wish to initiate a
bargaining period or apply for a protected action ballot order, they may do so
through an agent, with their identity protected.
The Commission would not
be able to order a ballot unless a bargaining period is in place, and the
applicant has been genuinely negotiating to reach an agreement.
The Bill
proposes that if a union makes an application for a ballot, only union members
whose employment would be covered by the proposed agreement would be entitled to
vote in the ballot. If employees who are seeking a non-union agreement make the
application, all employees whose employment would be covered by the proposed
agreement would be entitled to vote in a ballot. In either case, employees who
are party to an Australian Workplace Agreement whose nominal expiry date has not
passed would not be eligible to vote.
The new provisions set out proposed
procedural requirements for ballots, including specific information that would
be required to be provided to employees in ballot papers. Industrial action
would be authorised by a ballot if at least 50 per cent of eligible voters
participate in the ballot, and if more than 50 per cent of the votes cast are in
favour of the proposed industrial action.
The Bill also proposes
consequential changes to the existing secret ballot provisions of the
Act.
[Under the existing secret ballot provisions (sections 135-140), the
Commission may order secret ballots of union members in relation to industrial
disputes and of union members or groups of employees concerning threatened,
impending or probable industrial action. Members of unions may also request the
Commission to order a ballot be held in relation to proposed industrial
action.]
FINANCIAL IMPACT STATEMENT
The
requirements for protected action to be preceded by a secret ballot will involve
costs to the
Commonwealth. The applicant will be liable for the costs of
the ballot, but the Commonwealth will reimburse to applicants 80 per cent of the
reasonable costs incurred in holding the ballot.
NOTES ON CLAUSES
Clause 1 - Short
title
1. This is a formal provision specifying the short title
of the Act.
Clause 2 - Commencement
2. This
clause specifies when the various provisions of the Act are proposed to
commence. Subclause 2(1) provides that, subject to subclauses (2) and (3), the
Bill commences on proclamation.
3. Subclause 2(2) has the effect that if
the Bill is not proclaimed to commence within six months of the Act receiving
Royal Assent, it will commence on the day following that period of six months.
4. Subclause 2(3) provides that, if either the Workplace Relations
Amendment (Australian Workplace Agreements Procedures) Act 2000 or item 3 of
schedule 1 of the the Workplace Relations Amendment (Termination of
Employment) Act 2000 commence before this Act, item 1 of Schedule 1 (which
proposes a definition of ‘old IR agreement’) does not commence at
all.
Clause 3 – Schedule(s)
5. 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 - SECRET BALLOTS FOR PROTECTED ACTION
Part 1
- Amendments
Workplace Relations Act
1996
Item 1 - Subsection 4(1)
1. The current
definition of ‘certified agreement’ (subsection 4(1)) is limited to
agreements certified under the current provisions (which were introduced by the
Workplace Relations and Other Legislation Amendment Act 1996 and
commenced on 31 December 1996).
2. This item proposes to insert a
definition of ‘old IR agreement’. The concept of an old IR agreement
(which is defined to mean an agreement certified or approved under various now
repealed provisions of the Act) is relevant in relation to when a protected
action ballot may be ordered.
Item 2 - At the end of Section
4
3. This item proposes a technical amendment. The effect of this
item, which is consequential upon the amendment proposed by item 1 of this
Schedule, is that a reference to the nominal expiry date of an agreement would
include a reference to the end of the period of operation of an old IR
agreement.
Item 3 - Subsection 134(5) (paragraphs (d) and (e) of the
definition of prescribed premises)
4. This item proposes
to amend the definition of ‘prescribed premises’ in section 134 of
the Act. The amendment is consequential and would replace a reference to
existing section 136 (which is to be largely repealed by item 7), with a
reference to proposed Division 8A of Part VIB (to be inserted by item 23), which
would contain new provisions relating to protected action
ballots.
Item 4 - Subsection 135(2)
5. This
item proposes to repeal existing subsection 135(2), under which the Commission
may order a secret ballot of members of an organisation where it appears to the
Commission that a ballot may help to stop or prevent industrial action, and
substitute a new subsection. This power will no longer be appropriate following
the introduction of requirements for protected action
ballots.
6. New subsection 135(2) would prevent the Commission from
ordering a secret ballot of members of an organisation under subsection 135(1)
where the organisation has initiated a bargaining period under section 170MI for
an agreement. This would ensure that a decision of employees or a union to
apply for a protected action ballot could not be pre-empted by the
Commission.
Item 5 - Subsection 135(2B)
7. This
item proposes the repeal of existing subsection 135(2B), which allows the
Commission to order a secret ballot to determine whether employees support
taking industrial action where it appears that industrial action is being taken
or is threatened, impending or probable, for the same reasons as outlined in
relation to subsection 135(2) [item 4].
Item 6 - Subsection
135(3)
8. This item proposes a consequential amendment to
subsection 135(3) to remove the reference to existing subsection 135(2), which
would be repealed [item 2 of this Schedule].
Item 7 -
Subsections 136(1), (2), (3), (4), (5), (6) and (7)
9. This
item proposes the repeal of existing subsections 136(1), (2), (3), (4), (5), (6)
and (7). These subsections currently permit members of an organisation, who have
been requested or directed by the organisation to engage in industrial action,
to apply to the Commission to order a secret ballot to find out whether or not
the members support the proposed industrial action. These provisions would no
longer be required, as it is proposed that protected industrial action could not
take place before a protected action ballot of members is conducted under
proposed Division 8A. Industrial action taken without the authorisation of such
a ballot would not be protected and it would be inappropriate for the Commission
to be involved in ordering a ballot in such circumstances; rather the various
compliance measures in the Act and elsewhere are available in relation to
participants in such action.
Item 8 - Paragraphs 136(8)(a) and
(b)
10. This item proposes to repeal existing paragraphs
136(8)(a) and (b), and substitute new paragraphs. New paragraph (a) would omit
existing references to subsections 135(2) and 136(2), which it is proposed be
repealed [see items 4 and 7].
11. The effect of new paragraph (b)
would be to remove the Commission’s power to revoke an order for a secret
ballot because industrial action has ceased. The new provisions regulating
protected action ballots will make this unnecessary, as it is proposed that
protected industrial action could not take place before a protected action
ballot is conducted.
Item 9 - Subsections 136(8B), (9) and
(10)
Item 10 - Subsection 137(1)
Item 11 - Subsection
138(1)
Item 12 - Subsection 138(2)
Item 13 - Subsection
138(5)
Item 14 - Subsection 138(6)
Item 15 - Section
139
Item 16 - Section 140
12. These items propose the
repeal of existing subsections 136(8B), (9) and (10), 138(2) and 138(6), and
section 140, and also remove references in subsections 137(1), 138(1), 138(5)
and 139 to existing secret ballot provisions which it is proposed be repealed.
The amendments are consequential to the limitations on the Commissions power to
order ballots be held proposed in items 4 to 7.
Item 17 - After
section 170MJ
13. This item proposes to insert two new sections
into the Act, as follows.
New section 170MJA - Initiating
party who is employee may appoint agent
14. New section 170MJA
would provide that an employee or employees who wish to initiate a bargaining
period under section 170MI to negotiate an agreement, or who wish to give an
employer notice of intention to take industrial action under section 170MO, but
want to remain anonymous from their employer, may appoint an agent to initiate
the bargaining period or to issue the notice on their behalf. This provision is
consistent with proposed subsection 170NBB(4), which would allow an employee or
employees to appoint an agent to represent them in relation to applications for
a protected action ballot.
15. The new section would also specify
that where an agent has been appointed to initiate a bargaining period under
section 170MI, the written notice that would be required to be given to the
Commission under subsection 170MI(2) must include the names of the employee or
employees who appointed the agent.
New section 170MJB -
Identity of person who has appointed agent not to be
disclosed
16. New subsection 170MJB(1) would further protect
the identity of employees who appoint agents under proposed section 170MJA by
prohibiting the Commission from disclosing information that would identify
persons who have appointed an agent. However, the Commission will be able to
disclose information that would identify persons who have appointed an agent if
the disclosure is permitted by any Act or by regulations made under an Act, or
if the disclosure has been authorised by the person whose identity would
otherwise be protected [subsection 170MJB(2)].
17. Under proposed
subsection 170MJB(3), it would be an offence for any person to disclose
information that would identify persons who have appointed a bargaining agent
under proposed section 170MJA. The proposed maximum penalty for this offence is
6 months imprisonment.
18. Proposed exceptions to this prohibition
on disclosure are: if the disclosure is permitted by any Act or by regulations
made under an Act, if the disclosure has been authorised by the person whose
identity would otherwise be protected, or if the disclosure is by a Registry
official or authorised ballot agent in the course of performing their functions
or duties [subsection 170MJB(4)].
19. For the purposes of
determining the burden of proof in proceedings relating to offences under
proposed subsection 170MJB(3), the exceptions set out in proposed subsection
170MJB(4) would be part of the description of the offence. This addresses the
requirements of the Criminal Code [subsection
170MJB(5)].
20. Definitions of the terms protected information and
Registry official, that are used in new section 170MJB, are contained in
subsection 170MJB(6).
Item 18 - At the end of subsection
170ML(7)
21. This item proposes to amend existing subsection
170ML(7) by inserting a reference to proposed Division 8A. This amendment would
ensure that industrial action would only be protected if the new provisions
regarding protected action ballots in proposed Division 8A have been complied
with. The requirement for protected action ballots would not apply to
industrial action taken in response to a lockout - see proposed section 170MQ
[item 21].
Item 19 - Subsections 170MO(5) and
(6)
22. This item would amend the requirements for a notice of
intended industrial action or lockout.
23. The amendments proposed to
subsection (5) are designed to ensure that notices contain adequate detail of
intended action. A notice would be required to provide details
of:
• the precise nature and form of the intended action;
• the day or days upon which it is proposed that the action will
take place; and
• the duration of the intended
action.
24. Subsection 170MO(6) currently allows the written notice
of industrial action required under subsection 170MO(2) to be given before the
commencement of a bargaining period. As a result of the proposed protected
action ballot arrangements, it will no longer be possible for notice of such
action to be given until the action had been authorised by a ballot. The
proposed replacement subsection 170MO(6) will provide that notice of proposed
action cannot be given until a ballot result has been
declared.
25. A protected action ballot would not be required for
an employer to undertake a protected action lockout of employees, nor would a
ballot be required for a union and employees to respond to such a lockout. In
this situation, notice by an employer or by a union or employees could be given
once the bargaining period has commenced.
Item 20 - Subsections
170MP(1) and (2)
26. This item proposes to repeal existing paragraphs
170MP(1)(b) and (2)(b), which provide that industrial action is not protected
unless the organisation or employees taking action have genuinely tried to reach
agreement. These paragraphs will no longer be necessary, as the issue of
whether a union or employees proposing to take industrial action have been
genuinely trying to reach an agreement will be considered by the Commission when
it is determining an application for a protected action ballot under proposed
section 170NBCF [item 23].
27. Subsection 170MP(3) will continue to
ensure that an employer is required to genuinely try and reach agreement before
taking protected action.
Item 21 - Section
170MQ
28. This item proposes the repeal existing section 170MQ,
and substitution of a new section.
New section 170MQ - Industrial
action must be authorised by ballot
29. Existing section 170MQ
provides that where the Commission has ordered a protected action ballot under
subsections 135(2) or (2B), protected industrial action cannot be taken unless
the ballot has been held and the action approved by a majority of votes cast.
This section would no longer be required, as subsections 135(2) and (2B) are to
be repealed [see items 4 and 5].
30. The new section would provide that
industrial action taken by an organisation of employees, its members or
employees, or by employees who are negotiating parties, would not be protected
action unless the action is taken in response to a lockout of employees, or the
action has been authorised by a protected action ballot conducted in accordance
with new Division 8A [to be inserted by item 23].
Item 22 -
After section 170MW
31. This section would regulate how protected action by unions or
employees may be recommenced after the suspension of a bargaining period has
ended. The section would only apply in relation to action authorised by a
protected action ballot, which either had not commenced or had not ended before
the bargaining period was suspended.
32. The section proposes that a
union or person authorised to organise or engage in protected action by a ballot
could, following the end of a suspension period, engage in action endorsed by
that ballot without the need to hold another protected action ballot.
33. As the dates specified in the ballot as to when action is proposed
to begin or be taken may have passed during the period of suspension, the
section would also provide that the period of suspension, including any such
dates, is to be ignored in determining when protected action may be taken
(subsection 170MWE(2)). This provision must be considered in conjunction with
proposed subsection 170MWE(4) which would make it clear that the details of
proposed action in the ballot may only be ignored in relation to such dates; any
action taken following the end of a suspension period would still be required to
be consistent with the type and duration of action specifically endorsed in the
ballot.
34. In addition, parties wishing to recommence action following
the end of a period of suspension would be required to give 3 working
days’ notice of their intention to take action, detailing the nature,
intended days and intended duration of the action, consistent with the
requirements of existing subsection 170ML(2).
Item 23 - After Division
8 of Part VIB
35. This item proposes to insert a new Division
into the Act, relating to secret ballots for protected action, as
follows.
New Division 8A - Secret ballots on proposed protected
action
New Subdivision A - General
New section
170NBA - Object of Division and overview of Division
36. This
section would establish the object of the new Division: to ensure that before
employees and organisations of employees take industrial action, the action is
authorised by the employees concerned in a fair and democratic ballot. (A
protected action ballot would not be required in the case of action taken in
response to a lockout by the employer.)
New section 170NBAA -
Definitions
37. New section 170NBAA defines the terms used in
proposed Division 8A.
New Subdivision B - Application for order
for protected action ballot to be held
New section 170NBB - Who
may apply for a ballot order, etc.
38. Under new subsection
170NBB(1) an application for a protected action ballot could only be made once a
bargaining period has commenced.
39. Who could make the application
would depend on who initiated the bargaining period under section 170MI. Under
new subsection 170NBB(2), if the bargaining period was initiated by a union,
then that union could apply to the Commission for a ballot order. If the
bargaining period was initiated by an employee or employees seeking a non-union
agreement, then any employee who would be subject to the proposed agreement, or
such employees acting jointly, could apply to the Commission for a ballot
order.
40. To ensure that a sufficient level of employee support
exists to justify the holding of a ballot in relation to employees seeking a
non-union agreement, subsection 170NBB(3) proposes that an employee or employees
acting jointly could not make an application to the Commission for a ballot
order unless the application has the support of a prescribed number of employees
who would be subject to the proposed agreement. [The equivalent requirement in
the case of ballot applications by a union, is that the union is to be required
to provide evidence that the application has been authorised by or through the
union’s committee of management (see proposed section
170NBBB).]
41. The term ‘prescribed number’ is defined in
proposed section 170NBAA. The ‘prescribed number’ would vary
depending on the size of the workplace. If there are less than 80 employees who
would be subject to the proposed agreement, then at least 4 of the employees
would be required to support the ballot application. If there are between 80
and 5000 employees who would be subject to the proposed agreement, at least 5%
of the employees would be required to support the ballot application. If there
are more than 5000 employees who would be subject to the proposed agreement,
then at least 250 of the employees would be required to support the ballot
application.
42. New subsection 170NBB(4) would provide that where
an employee or employees have initiated a bargaining period for a non-union
agreement and industrial action is proposed, an employee or employees acting
jointly may appoint an agent to represent them in making the ballot application
and for all purposes connected with the ballot application. This is intended to
enable employees making an application to remain anonymous.
New
section 170NBBA - Contents of application
43. This new section
proposes mandatory requirements for a ballot application under section 170NBB.
Applications would be required to include the following information:
• the bargaining period to which the proposed ballot relates;
• the types of employees who are to be balloted [for example their occupations, work groups and locations, similarly required in existing paragraph 170MJ(b)];
• the names of the applicant, applicants or applicant’s agent;
• the proposed timetable for the ballot;
• the name of the ballot agent nominated by the applicant to conduct the ballot;
• the proposed voting method for the ballot;
• the question or questions to be put to the ballot, including:
- the precise nature and form of the proposed industrial action to be voted on;
- the day or days on which it is intended the proposed action would take place;
- the duration of the proposed industrial action; and
• the
relevant employers name, addresses, telephone and fax
numbers.
New section 170NBBB - Material to accompany
application
44. New section 170NBBB would require the applicant
to provide certain material to the Commission with the ballot application,
including:
• a copy of the notice initiating the bargaining period and the particulars accompanying that notice;
• a declaration by the applicant that the industrial action to which the application relates is not for the purpose of advancing or supporting claims to include an objectionable provision (as defined in subsection 298Z(5) of the Act);
• if the applicant is an organisation of employees, a written notice
showing that the application has been duly authorised in accordance with the
organisation’s rules; and
• if the applicant is represented by
an agent, a document containing the name of the employee applicant or
applicants.
45. Under new subsection 170NBBB(6), it will be an
offence to make a statement in the declaration required by new section 170NBBB,
reckless as to whether it is false or misleading. The proposed maximum penalty
for an offence against subsection 170NBBB(6) is 20 penalty
units.
New section 170NBBC - Notice of
application
46. This new section would require the applicant to
give a copy of the application to the relevant employer and the ballot agent
nominated in the application within 24 hours of the application being lodged
with the Commission. However, the applicant would not be required to give these
parties copies of the supporting material that must be given to the Commission
with the application under proposed section 170NBBB, such as the document
containing the names of applicant employees where the applicants are represented
by an agent.
New section 170NBBD - Joint
applications
47. This section proposes that where a bargaining
period for the proposed agreement was initiated by an employee seeking a
non-union agreement, two or more employees who would be subject to the proposed
agreement could make a ballot application jointly [subsection
170NBBD(1)].
48. If a joint application was made, another employee
could, with the consent of the other applicants, add their name to the
application, and an applicant could withdraw their name from the application.
Either adding or withdrawing names may be done at any time before the
application is determined [subsections 170NBBD(2) and (3)]. Preventing
applicants withdrawing their name from an application after the determination of
the application is relevant to the fixing of liability for the cost of
conducting a ballot under proposed section 170NBF (see
below).
49. New subsection 170NBBD(4) would allow the President of
the Commission to establish rules regarding how the provisions of the Act
relating to ballot orders apply to joint applicants. Such rules would be Rules
of the Commission, and therefore disallowable instruments and statutory rules
[subsection 170NBBD(5)].
New Subdivision C - Determination of
application and order for ballot to be held
New section
170NBC - Commission to notify parties of application
50. To
assist in ensuring the speedy determination of applications, this new section
would require the Commission to notify all parties of the procedure for dealing
with an application for a ballot order, as soon as practicable after an
application is lodged. This would include notifying the parties that they may
make submissions to the Commission about the application, whether submissions
should be made orally or in writing, and the cut off time for making
submissions.
New section 170NBCA - Commission to act quickly in
relation to application etc.
51. New subsection 170NBCA(1)
would provide that in exercising its powers under Division 8A, the Commission
must act as quickly as practicable and would be required, as far as possible, to
determine an application for a ballot order within 4 working days of the
application being made.
52. Paragraph 111(1)(g) of the Act is not
to apply to ballot proceedings under Division 8A [subsection 170NBCA(2)].
Paragraph 111(1)(g) allows the Commission to dismiss or to refrain from hearing
or determining a dispute on various grounds, including that the dispute is
trivial, is being dealt with by a State industrial authority, that a party to
the dispute is engaging in conduct that is hindering the settlement of the
dispute, or has breached an award, agreement or order of the Commission, etc.
Note, however, that under proposed subsection 170NBCB(2) the Commission would be
able to refrain from considering a submission if it was satisfied that the
submission was vexatious, frivolous, misconceived or lacking in
substance.
New section 170NBCB - Parties and relevant employees
may make submissions and apply for directions
53. Under new
subsection 170NBCB(1), a party to a ballot application (the applicant, the
employer or the ballot agent), a union member (where the applicant is a union)
or employee (where the applicant is an employee or employees) who would be
subject to the proposed agreement, will be entitled to make submissions to the
Commission about the application, or about the conduct of the protected action
ballot. Also, any of these persons will be entitled to apply to the Commission
for directions about the application or the conduct of the
ballot.
54. New subsection 170NBCB(2) would allow the Commission to
refuse to consider a submission if the Commission was satisfied that the
submission was vexatious, frivolous, misconceived or lacking in
substance.
New section 170NBCC - Commission may give
directions
55. This new section would empower the Commission to
make directions regarding an application for a ballot order or about any aspect
of the conduct of a protected action ballot.
New section 170NBCE
- Commission procedure regarding multiple
applications
56. Proposed section 170NBCE seeks to ensure that
any disruption that may be caused to an employer’s operations by the
conduct of more than one protected action ballot proposed to be held within a
short space of time can be minimised (especially, for example, attendance
ballots).
57. The Commission would be specifically empowered to hear and
determine at the same time applications that concerned the same employer or that
concerned the same place of work where different employers were involved (for
example a construction site). For example, if an order had been made concerning
a particular employer or place of work and a further application was made
concerning that employer or place of work, the Commission would be able to
determine that the later ballot be held at the same time as the first ordered
ballot, or it could vary the order for the first ordered ballot to require both
ballots be held at the same time.
New section 170NBCF -
Application not to be granted unless certain conditions are
met
58. New subsection 170NBCF(1) sets out the matters that
would be required to be established to the Commission’s satisfaction
before the Commission could grant an application for a ballot order. The
matters are:
• a bargaining period has been initiated and has commenced;
• the application was accompanied by a declaration by the applicant that the proposed industrial action is not for the purposes of supporting or advancing claims to include an objectionable provision in an agreement (new subsection 170NBBB(4) above);
• if the application is by one or more employees, that the application is supported by at least the prescribed number of employees (new subsection 170NBB(3) above);
• the other parties have received a copy of the application as required by new section 170NBBC above;
• the nominal expiry dates of all certified agreements, old IR agreements and section 170MX awards applying to the union members or employees who would be eligible to vote in the ballot have passed;
• the manner in which the ballot would be conducted will ensure the secrecy and security of employees’ votes, and would result in a fair and democratic ballot to the extent that the applicant can guarantee this (this will normally require that the ballot be conducted as a postal vote);
• the proposed ballot timetable is appropriate (under proposed section 170NBCJ the Commission may develop guidelines which would assist in determining this issue);
• the question or questions to be put to employees in the ballot meet the requirements of new paragraph 170NBBA(g), that is, the questions must state the precise nature and form of the proposed industrial action, the day or days on which it is proposed that the action will take place and the duration of the proposed industrial action;
• the ballot agent nominated in the application will conduct the ballot in accordance with the requirements of Division 8A and with any orders or directions made by the Commission;
• if the ballot agent nominated in the application is not the Australian Electoral Commission, that the ballot agent has consented to conduct the ballot;
• if a party has submitted to the Commission that the applicant has not
genuinely tried to reach agreement with the employer, that there are not
sufficient grounds for accepting this submission; and
• any other
matter prescribed by the regulations.
59. If the Commission were to
be satisfied of all these matters except for those dealing with the proposed
ballot method, timetable or ballot agent, the Commission would be required to
give the applicant an opportunity to amend the application in respect of these
matters. (The Commission has a general discretion to allow a party to vary any
other element of its application.)
60. To help ensure the accuracy
of a ballot roll and the anonymity of Australian Workplace Agreement employees
and union members, proposed subsection 170NBCF(3) would require the Commission
to consider whether it should make an order under new section 170NBCK before it
grants an application. New section 170NBCK would allow the Commission to order
the applicant or the employer of the relevant employees to provide the
Commission with a list of employees who would be eligible to vote in the
proposed ballot, and any other information that the Commission reasonably
requires to assist in compiling the roll of voters for the proposed
ballot.
61. New subsection 170NBCF(4) would require the Commission
to grant an application if it was satisfied that all the matters in subsection
(1) have been complied with, and the Commission has considered the matter in
subsection (3).
62. New subsection 170NBCF(5) would provide that even if
subsection (4) would otherwise require the Commission to grant an application,
the Commission is nonetheless able to refuse to grant the application if it is
satisfied that the applicant, or an employee or union member who would be
eligible to vote in the proposed ballot, has at any time contravened a provision
of Division 8A or an order or direction made by the Commission under Division
8A.
New section 170NBCH - Grant of application - order for
ballot to be held
63. This new section would provide that if
the Commission grants an application for a ballot order, the Commission would be
required to order the applicant to hold a ballot in accordance with Division
8A.
New section 170NBCI - Matters to be included in
order
64. Proposed subsection 170NBCI(1) sets out the
information that would be required to be contained in a ballot order made by the
Commission.
65. An order would be required to specify the ballot be
conducted by postal vote, unless another method was proposed in the application
for the ballot order and the Commission is satisfied that this other method
would ensure the secrecy and security of votes and a fair and democratic ballot,
and that, if the ballot was to be conducted by attendance vote, that the voting
could take place in work breaks or otherwise outside hours or employment
[subsection 170NBCI(2)].
66. If a ballot is to be conducted by an
attendance vote, the ballot order would be required to specify that voting is to
take place during breaks or otherwise outside work hours [subsection
170NBCI(3)].
New section 170NBCJ - Guidelines for ballot
timetables
67. To assist the Commission in speedily determining
applications, the President of the Commission would be empowered to develop
guidelines concerning timetables for the conduct of ballots under Division 8A.
The President may consult with the Australian Electoral Commission and other
ballot agents in developing any guidelines under this
section.
New section 170NBCK - Power of Commission to require
information relevant to roll of voters
68. The only employees
who would be eligible to vote in protected action ballots are those who would be
subject to the proposed agreement who are not party to an Australian Workplace
Agreement whose nominal expiry date has not passed and, in the case of union
initiated ballots, are members of the union that is the applicant for the order.
To determine whether a particular person is eligible to vote in a ballot would
frequently require the Commission (or the authorised ballot agent) to obtain
information from the employer and the applicant. New subsection 170NBCK(1)
would allow the Commission to order the applicant or the employer of the
employees (or both) to provide the Commission with a list of employees who might
be eligible to vote in a proposed ballot, and any other information that the
Commission reasonably requires to assist in compiling the roll of voters for the
proposed ballot.
69. The Commission would be able to require this
information to be provided either to the Commission or to the authorised ballot
agent and could require it be provided in whatever form the Commission thinks is
appropriate [subsections 170NBCK(2) and (3)].
New section 170NBCL -
Roll to be compiled by Commission or ballot agent
70. This new
section would provide for the compilation of the roll of voters by the
Commission or, alternatively, by authorised ballot agent.
New section
170NBCM - Eligibility to be included on the roll
71. New
subsection 170NBCM(1) would establish that a person is only eligible to vote in
a protected action ballot if the person:
• was employed by the relevant employer on the day the ballot order was
made; and
• would be subject to the proposed agreement in respect of
which the relevant bargaining period was
initiated.
72. Additionally, if the applicant for the ballot order
was an organisation of employees, the person would be required to have been a
member of the organisation on the day the ballot order was made by the
Commission.
73. Further, under new subsection (2), a person whose
employment is subject to an Australian Workplace Agreement whose nominal expiry
date has not passed would not be eligible to vote in a ballot, even if the
person meets the other requirements for eligibility in subsection
(1).
New section 170NBCN - Adding or removing names from the
roll
74. Under new subsection 170NBCN(1), the ballot agent
would be required to add a persons name to the roll of voters for a ballot at
any time before voting in the ballot is finished, if the person requests that
their name be added to the roll, and the ballot agent is satisfied that the
person is eligible to be included on the roll of voters.
75. In
addition, a person is to be able to apply to the Commission for a declaration
that they are eligible to be included on the roll of voters for a ballot. If
the Commission is satisfied that the person is eligible to be included on the
roll of voters, and voting in the ballot has not finished, the Commission would
be required to make the declaration sought, and direct the ballot agent to
include the person’s name on the roll of voters for the
ballot.
76. A process for removing a person’s name from the
roll of voters is proposed in subsection 170NBCN(3). A party to a ballot order,
or a person whose name is on the roll of voters for the ballot, is to be able to
apply to the Commission for a declaration that a person whose name is on the
roll of voters is not eligible to be included on the roll. If, in the case of a
postal ballot, voting had not yet finished, or in the case of any other type of
ballot, voting had not yet started, and the Commission was satisfied that the
person was not eligible to be included on the roll of voters, the Commission
would be required to make the declaration sought and direct the ballot agent to
remove the persons name from the roll of voters.
77. If a
person’s name was removed from the roll as outlined above and a postal
ballot had already commenced and the person had cast a vote, the ballot agent
would be required to take all reasonable steps to ensure that persons vote was
not counted [section 170NBCN(4)].
New section 170NBCO -
Variation of order
78. New subsection 170NBCO(1) would allow
an applicant for a ballot order to apply to the Commission, at any time before
the expiry of the ballot order, to have the ballot order varied; for example to
deal with unanticipated circumstances.
79. New subsection
170NBCO(2) would allow the authorised ballot agent under a ballot order to apply
to the Commission, at any time before voting under the ballot has finished, to
have the voting method or timetable for the ballot specified in the ballot order
varied. This would enable the ballot agent to request an alteration in the
timetable if, for example, it encounters difficulties in compiling the roll of
voters that would prevent it completing the ballot within the ordered
timeframe.
New section 170NBCP - Expiry and revocation of
order
80. New section 170NBCP would provide that where a ballot
has not been held within the period specified in the ballot order, the order
expires at the end of that period. It would be open for an applicant for a
ballot order to apply to the Commission to have the order revoked at any time
before the order expires; for example, if the matters at issue are resolved
before the ballot is conducted. If such an application were made, the
Commission would be required to revoke the order.
New section
170NBCQ - Compliance with orders and directions
81. This new
section would provide that if the Commission was to make an order or direction
under Division 8A expressed to apply to a person or an organisation of
employees, that person or organisation must comply with the order or direction.
(A ballot order would only apply to the applicant, although separate orders and
directions could be made which would apply to other parties.)
New
section 170NBCR - Commission to notify parties
82. This new
section would require the Commission, as soon as practicable after it makes a
ballot order, to ensure that a copy of that order is given to each party to the
application (the applicant, employer and ballot agent).
New
Subdivision D - Conduct and results of protected action
ballot
New section 170NBD - Conduct of
ballot
83. This new section would provide that a ballot will
not be a protected action ballot unless it is conducted by the authorised ballot
agent (this term is defined in proposed section 170NBAA).
84. The effect
of this section is that a ballot would be required to be conducted by the ballot
agent authorised by the Commission in the ballot order. If someone else
conducted the ballot, then it would not comply with the requirements of proposed
Division 8A, and any industrial action taken following such a ballot would not
be protected industrial action under amendments proposed to section 170MQ [see
item 21].
New section 170NBDA - Form of ballot
paper
85. This new section would require the ballot paper for a
protected action ballot to be in the prescribed form, and contain certain
information, including:
• the name of the applicant or applicant’s agent;
• the types of employees who are to be balloted [for example, their occupations, work groups and locations - similarly required in existing paragraph 170MJ(b)];
• the name of the ballot agent authorised to conduct the ballot;
• the question or questions to be put to voters, including details of:
- the precise nature and form of the intended industrial action to be voted on;
- the day or days on which it is intended that the proposed industrial action will take place;
- the duration of the proposed industrial action;
• the statement set out in proposed Schedule 5 [to be inserted by item
33]; and
• instructions to the voter on how to complete the ballot
paper.
New section 170NBDB - Who can
vote
86. This new section would provide that a person may not
vote in a ballot unless the persons name is on the roll of voters for the ballot
(established under new section 170NBCL above).
New section
170NBDC - Declaration of ballot results
87. This new section
would require the ballot agent to make a declaration of the results of the
ballot in writing, and inform the applicant, the affected employer and the
Industrial Registrar, in writing, of the results as soon as practicable after
the end of voting.
New section 170NBDD - Effect of
ballot
88. Under new section 170NBDD, industrial action would
only be authorised by a protected action ballot if:
• the action was the subject of a ballot conducted in accordance with the provisions of proposed Division 8A;
• at least 50% of persons on the roll of voters for the ballot
established under proposed section 170NBCL voted in the ballot; and
• more than 50% of the votes cast in the ballot approved the
industrial action.
New section 170NBDE - Registrar to
record questions put in ballot and results
89. New section
170NBDE would require the Industrial Registrar to keep, for each ballot held
under Division 8A, a record of questions put to the voters and the results of
the ballot. The Registrar would be required to publish the results of a ballot
as soon as practicable after being notified of the results by the ballot
agent.
New Subdivision E - Ballot agents
New
section 170NBE - Register of ballot agents
90. This section
would require the Industrial Registrar to maintain a register of ballot agents
who may be authorised by the Commission to conduct ballots under Division 8A.
Before entering a person’s name on the register, the Registrar will be
required to be satisfied that the person is a fit and proper person to conduct
such ballots.
91. In deciding whether a person is a fit and proper
person, new subsection 170NBE(3) would require the Registrar to have regard to
the following factors:
• whether the person is capable of ensuring the security and secrecy of votes cast in a ballot, and ensuring that a ballot is fair and democratic;
• whether the person is likely to maintain confidentiality of the records that they are required to keep in relation to the ballot;
• if the person is a natural person, whether the person has contravened
a prescribed law within the last five years; and
• if the person is a
body corporate, whether the body or any of its officers or employees have
contravened a prescribed law within the last 5 years.
92. New
subsection 170NBE(4) would provide that where a person has contravened a
prescribed law in the last 5 years, the Registrar would not be able to include
the person on the register of ballot agents unless the person has been granted
leave under proposed section 170NBEA to seek to have their name included on the
register.
93. A body corporate ballot agent will be prohibited
authorising a person who has contravened a prescribed law in the last 5 years to
participate in conducting a ballot [new subsection
170NBE(5)].
94. Proposed subsection 170NBE(6) defines prescribed law for
the purposes of new section 170NBE. A ‘prescribed law’ would
include laws the contravention of which is punishable by imprisonment for more
than 12 months, those involving dishonesty punishable by imprisonment for more
than 6 months, and provisions of the Act dealing with freedom of association,
protected action ballots and other forms of ballots.
New section
170NBEA - Leave to be included on register
95. Under new
subsection 170NBEA(1) a person who has contravened a prescribed law, as defined
in new subsection 170NBE(6), within the last 5 years would be able to apply to
the Federal Court for leave to seek to have their name entered on the register
of ballot agents maintained by the Industrial Registrar. New subsection
170NBEA(2) would allow the Court to impose any conditions or restrictions as the
Court thinks fit when granting leave under the section. New subsection
170NBEA(3) would allow the Court to revoke leave at any time on the application
of the Industrial Registrar.
New section 170NBEB - Removal from
register
96. This new section would allow the Industrial
Registrar to remove a person’s name from the register of ballot agents if
he or she is satisfied that the person was not a fit and proper person to
conduct protected action ballots. Before removing a person’s name, the
Registrar is to be required to give the person notice of the intention to remove
their name from the register together with reasons in writing, and to give the
person a reasonable opportunity to make submissions about the proposed
removal.
New subdivision F - Funding of
ballots
New section 170NBF - Liability for cost of
ballot
97. New section 170NBF would provide that the applicant
for a ballot order is liable for the cost of holding the ballot, and that where
a ballot application was made jointly, each applicant is jointly and severally
liable for the cost of holding the ballot.
New section 170NBFA -
Partial reimbursement of cost of ballot
98. This new section
would allow an applicant to seek reimbursement of some of the costs of holding a
ballot under Division 8A from the Commonwealth.
99. If an applicant
for a protected action ballot notifies the Industrial Registrar of the costs
incurred by the applicant in holding the ballot within a reasonable time after
completion of the ballot, the Industrial Registrar would then be required to
determine what proportion of these costs were reasonably and genuinely incurred
by the applicant in holding the ballot (the ‘reasonable ballot
cost’) [new subsection 170NBFA(1)].
100. New subsection 170NBFA(2)
establishes that the Commonwealth is liable for 80% of the ‘reasonable
ballot cost’. Where there are joint applicants, new subsection 170NBFA(3)
proposes a formula for calculating the proportion of the ‘reasonable
ballot cost’ that the Commonwealth would be liable to pay to each joint
applicant.
101. Where joint applicants for a secret ballot request
the Commonwealth to reimburse the reasonable costs of the ballot in other than
equal proportions, the Commonwealth is to distribute that amount in accordance
with the request [new subsection 170NBFA(4)].
102. New subsection
170NBFA(5) would enable regulations to be made prescribing matters that are to
be taken into account by the Industrial Registrar in determining whether ballot
costs are reasonably and genuinely incurred for the purposes of proposed
subsection 170NBFA(1).
New Subdivision G -
Miscellaneous
New section 170NBG - Identity of certain
persons not to be disclosed by Commission
New section 170NBGA -
Identity of certain persons not to be disclosed by
individuals
103. New subsection 170NBG(1) would provide that
the Commission must not disclose information that would identify a person as:
• an applicant for a ballot order, where the applicant is represented by an agent;
• an employee who supports an application for a ballot order, for the purposes of proposed subsection 170NBB(3);
• a person whose name appears on the roll of voters for a ballot; or
• a person who is party to an Australian Workplace
Agreement.
104. New subsection 170NBG(2) would establish exceptions
to the prohibition in new subsection 170NBG(1): the Commission could disclose
information that would otherwise be prohibited under subsection (1) if the
disclosure was permitted by any Act or by regulations made under an Act, or if
the disclosure had been authorised in writing by the person whose identity would
otherwise be protected.
105. A similar prohibition on revealing
information would apply to persons generally under proposed section 170NBGA.
Under this section, it would be an offence to disclose the protected information
which is that listed in section 170NBG. The proposed maximum penalty for this
offence is 6 months imprisonment.
106. Proposed exceptions to the
offence are set out in new subsection 170NBGA(2), based on those in existing
subsection 170WHB(2): a person could disclose protected information if the
disclosure was made by a Registry official or authorised ballot agent in the
course of performing their functions or duties, if the disclosure was permitted
by any Act or by regulations made under an Act, or if the disclosure had been
authorised in writing by the person whose identity would otherwise be
protected.
107. New subsection 170NGBA(3) would specify that, for
the purposes of determining the burden of proof in proceedings relating to
offences under proposed subsection 170NBGA(1), the exceptions set out in
proposed subsection 170NBGA(2) would be part of the description of the offence.
This subsection addresses the requirements of the Criminal
Code.
108. Definitions of the terms ‘protected
information’ and ‘Registry official’, which would be used in
new section 170NGBA, are set out in proposed subsection
170NGBA(4).
New section 170NBGB - Immunity if person acted in
good faith on ballot results
109. This new section proposes
that where industrial action has been authorised by the results of a ballot, and
an organisation or person goes ahead and organises or participates in industrial
action acting in good faith on the results of the ballot, no legal action is
able to be taken against that organisation or those persons if it turns out that
the action was not in fact protected.
110. This defence would not apply
in cases where the industrial action resulted in personal injury, wilful or
reckless damage to property or the unlawful taking or keeping of property.
Also, new subsection 170NGB(2) provides that there would be no immunity against
legal action for defamation in the course of industrial action. (These
exceptions are in line with the exceptions to immunity provided by existing
section 170MT.)
New section 170NBGC - Preservation of ballot
papers
111. Under new section 170NBGC a ballot agent who
conducts a ballot under Division 8A would be required to keep the roll of
voters, all ballot papers, envelopes and other records relevant to the ballot
for one year after completion of the ballot.
New section 170NBGD
- Conferral of function on AEC
112. This new section would
ensure that if the Australian Electoral Commission (AEC) is the authorised
ballot agent for a ballot under Division 8A, it is a function of the AEC to
conduct the ballot. (If the Commission authorised the AEC to conduct a ballot
in a ballot order, the AEC would be required to conduct the
ballot.)
New section 170NBGE -
Regulations
113. Regulations may be made in relation to the
following matters:
• the qualifications and appointment of applicant’s agents;
• procedures to be followed in conducting a ballot or class of ballot;
• the qualifications, appointment, powers and duties of scrutineers;
• the entry and removal of names from the register of ballot agents;
and
• the manner in which ballot results are to be
published.
Item 24 - After paragraph
170ND(d)
Item 25 - At the end of section 170NF
Item 26 -
After subsection 178(1)
114. These items deal with the
enforcement of orders and directions under proposed Division 8A [item 23].
115. Item 24 proposes to insert a new paragraph 170ND(da) into the Act.
The new paragraph would specify that proposed section 170NBCQ (requiring
compliance with an order or direction made in relation to a protected action
ballot), is a penalty provision for the purposes of Division 10 of Part
VIB.
116. Item 25 would amend section 170NF to set out who may
apply to an eligible court for an order imposing a penalty on a person or
organisation who has failed to comply with an order or direction of the
Commission under Division 8A; namely: employees eligible to vote in a ballot, an
employer, an ballot applicant, an inspector, or any person prescribed by the
regulations. (Note that existing section 170NG also allows an eligible court to
grant an injunction requiring a person not to contravene or to cease
contravening a penalty provision.)
117. Item 26 would ensure that orders
of the Commission under Division 8A of Part VIB could only be enforced under
Division 10 of Part VIB as outlined above, by making clear that existing section
178(1) (which provides for penalties for breach of Commission awards and orders)
would not apply to orders under Division 8A.
Item 27 - At the
end of sections 287 and 288
118. As entitlement to vote in a
protected action ballot will be regulated by new Division 8A, item 27 proposes
amending sections 287 and 288 to specify that neither section applies to
protected action ballots conducted under new Division 8A.
119. Section
287 provides that financial members of an organisation have the right to vote in
any ballot taken for the purpose of submitting a matter to a vote of the members
of the organisation. Section 288 provides that financial members of an
organisation may request information regarding ballots from the returning
officer to determine whether there has been an irregularity in relation to the
ballot.
Item 28 - Section 307
120. This item
proposes the repeal of existing section 307, which creates an offence regarding
false or misleading material in an application for a secret ballot under
existing section 136 (as the relevant aspects of section 136 are to be
repealed), and substituting two similar provisions regarding ballots under
Division 8A: one dealing with applications in general and the other dealing with
joint applications.
New section 307 – False statement in
application for protected action ballot order
New section 307A - False
statement in joint application for protected action ballot
order
121. These new sections would prohibit a person making a
statement or joining with others in making a statement in an application for a
protected action ballot, recklessly as to whether the statement is false or
misleading.
122. The proposed maximum penalty for offences against
new sections 307 and 307A is $1000.
Item 29 - After section
314
New section 314A - Failure to preserve protected action
ballot papers etc.
123. This item would insert a provision
similar to existing section 314, which would prohibit a person knowingly or
recklessly contravening proposed section 170NBGC (which would require the
preservation of ballot papers for one year after completion of the ballot
– see item 23).
124. The proposed maximum penalty for an
offence against new section 314A is a $500 fine, 6 months imprisonment, or
both.
Item 30 - Paragraph 317(5)(a)
Item 31 - Paragraph
317(5)(b)
Item 32 - At the end of section
317
125. These items deal with offences in relation to ballots.
126. Item 30 proposes a consequential amendment to paragraph 317(5)(a)
to remove the reference to secret ballots ordered under section 136. It is
proposed that existing provisions in section 136 allowing the Commission to
order a secret ballot would be repealed [item 7].
127. Item 31 proposes
an amendment to paragraph 317(5)(b) to specify that the offences set out in
section 317 apply to ballots conducted under Division 7A of Part IX (these are
ballots concerning withdrawal of organisations from amalgamations). [This
corrects an oversight.]
128. Item 32 proposes to insert a new subsection
317(6) into the Act. This new subsection would provide that a ballot referred
to in subsections 317(2), (3) and (4) includes a ballot held under Division 8A
of Part VIB, and would ensure that offences set out in these subsections apply
to protected action ballots.
Item 33 - After Schedule
4
129. This item proposes to add a new Schedule to the
Act.
New Schedule 5 - Statement to be included on protected action
ballot paper
130. This new Schedule contains a statement that
would be included in all ballot papers issued for a protected action ballot
under new section 170NBDA [item 23]. The statement would inform employees who
receive a ballot paper of their legal rights regarding participation in the
ballot and participation in any industrial action that is authorised as a result
of the ballot.
Part 2 – Application and saving
Item 34 - Application of amendments
131. Subitem (1)
would provide that the amendments in this Bill would apply to industrial action
taken on or after the day on which the amendments commence.
132. Subitem
(2) would provide that the amendments would not apply to industrial action taken
after the commencing day if:
• the action is protected action under subsection 170ML(2) of the Act;
• the existing requirements of sections 170MO and 170MR - to provide
written notice of the intended industrial and, if an organisation is a
negotiating party, that the action was properly authorised - were met before
commencement day; and
• the action is taken within 14 days after
commencement.
133. Any action different to that specified in the
notice given under s170MO or any continuation of action after 14 days from
commencement of the new provisions would require the authorisation of a
protected action ballot under proposed new Division 8A.
Item 35
- Saving
134. This item deals with secret ballots ordered by
the Commission before commence under sections 135(2) and (2B), which would be
repealed by items 4 and 5 of this Bill.
135. If a ballot under
these provisions has been ordered by the Commission but the ballot result is not
known when the amendments commence (because the ballot has not yet been held or
the result of the ballot has not yet been determined), the order for the ballot
would continue to have effect and the existing elements of Division 4 of Part VI
of the Act would continue to apply.
136. In addition, existing section
170MQ would apply. (That is, any action taken by a union or member or employee
would not be protected action unless the ballot has been held and has approved
the action.)
137. However, if such a ballot approves industrial action,
any such action taken following the ballot must begin within 14 days of the
ballot result being declared and 3 working days notice of the action must be
given to the employer.
138. If a ballot under the relevant existing
provisions is conducted and finalised before the commencing day, then item 34
would apply.