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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
WORKPLACE
RELATIONS AMENDMENT (IMPROVED REMEDIES FOR UNPROTECTED ACTION) BILL
2002
EXPLANATORY MEMORANDUM
(Circulated by
authority of the Minister for Employment and Workplace Relations,
the
Honourable Tony Abbott MP)
OUTLINE
The Bill proposes to amend the Workplace
Relations Act 1996 (WR Act) to strengthen section 127 of that Act, under
which orders may be made by the Australian Industrial Relations Commission (the
Commission) to stop unprotected industrial action or to prevent industrial
action from occurring.
The Bill includes a requirement that the
Commission have regard to the undesirability of the occurrence of unprotected
action when considering section 127 applications, particularly where it occurs
during the term of an existing certified agreement.
The Bill proposes to
allow applications for section 127 orders to be heard and determined in a more
timely manner and to increase the effectiveness of these orders in stopping
unprotected industrial action.
As a result of these amendments, the
Commission will be required to hear and determine applications for section 127
orders as far as practicable within 48 hours. Where an application cannot be
heard and determined within 48 hours, the Commission will have the discretion to
issue an interim order to stop or prevent industrial action. The Commission
will also be able to make an interim order where the industrial action has not
commenced but is imminent and the Commission is likely to be unable to determine
the application prior to the industrial action commencing.
The Bill provides factors to guide the Commission in exercising its discretion as to whether to issue an interim section 127 order.
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 various provisions of the Act are proposed to commence. Sections 1 to 3
and anything in the Act not elsewhere covered by the table will commence on the
day on which the Act receives the Royal assent. The amendments set out in
Schedule 1 will commence on a single day to be fixed by proclamation, subject to
subsection (3). The measures contained in Schedule 1 will only apply to
applications made under section 127 of the Workplace Relations Act 1996
after the commencement of the Schedule but will be able to operate by
reference to past events such as related industrial action prior to the
commencement of the Schedule.
3. Subsection (3) 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.
Clause 3 – Schedule(s)
4. This clause
provides that the Act specified in a Schedule to this Act is amended or repealed
as set out in Schedule 1, and that any other item in a Schedule operates
according to its terms.
Workplace Relations Act 1996
Item 1 – Subsection 127(3)
1. This item proposes to
repeal existing subsection 127(3), under which the Commission must hear and
determine an application for an order under section 127 as soon as practicable,
and substitute new subsections.
2. Proposed subsection 127(3) will
require the Commission to hear and determine an application for a section 127
order, as far as is practicable, within 48 hours.
3. Proposed subsection
127(3A) will expressly empower the Commission to make an interim order to stop
industrial action, or to prevent industrial action from occurring. This power
to make an interim order under subsection 127(3A) is in addition to the general
power of the Commission to make interim orders under subparagraph 111(1)(b)(ii).
In Transfield Pty Ltd v Automotive, Food, Metals, Engineering, Printing and
Kindred Industries Union [Print 908202], Munro J noted the difficulty in
producing an adequately reasoned decision in the limited time available and
issued an interim order to cease industrial action. The order applied until
Munro J finally determined the matter.
4. Proposed paragraph 127(3A)(b)
will provide that, prior to making an interim order the Commission must either
be satisfied that the industrial action is not protected action or has not
formed a view about whether or not the industrial action is protected action.
The Commission can make an interim order with respect to industrial action which
may subsequently be determined to be protected action. However, an immunity as
described in Item 4, will apply where the industrial action is protected action
5. Before the Commission can make an interim order, it will have to be
satisfied that it will be unable to hear and determine the application within 48
hours (subparagraph 127(3A)(c)(i)).
6. In the alternative, the
Commission will be able to make an interim order where the industrial action has
not commenced, but is likely to do so within 48 hours, and the Commission will
be unable to determine the application prior to its commencement (subparagraph
127(3A)(c)(ii)). The purpose of this proposal is to encourage the making of an
interim order in time to prevent the industrial action from commencing if the
Commission is satisfied that this is appropriate.
7. Proposed subsection
127(3B) will provide that an interim order will cease to have effect if the
section 127 application is determined. This will apply where the Commission has
not stipulated in an order the time at which the order will lapse.
8. Proposed subsection 127(3C) will list a number of factors that the
Commission must have regard to when exercising its discretion to issue an
interim order. The provision does not, in listing these factors, prevent the
Commission from taking into account other relevant factors when exercising its
discretion.
9. The aim of the factors in subsection 127(3C) is to
highlight circumstances that have previously been problematic in relation to the
making of timely and effective section 127 orders. Some of the factors are
similar to those identified by Munro J in Transfield Pty Ltd v Automotive,
Food, Metals, Engineering, Printing and Kindred Industries Union [Print
908287], including damage to business, the time needed to determine the
application and whether or not the industrial action has escalated since the
application was made.
10. Paragraph 127(3C)(d) identifies that
occurrence of a sequence of related industrial action as a factor to be
considered by the Commission. This acknowledges that a sequence of unprotected
action, even where each instance lasts only 24 or 48 hours can result in
significant damage to an employer and previous conduct of this nature should be
considered by the Commission.
11. The factors also include lack of proper
notice of the industrial action (paragraph 127(3C)(f)). Where industrial action
is not properly notified, it makes it more difficult for the Commission to hear
and determine applications in time to make an order preventing the industrial
action from proceeding. Also, for the purposes of conducting protected action,
it is necessary, among other things, to provide at least 3 days notice of the
proposed industrial action. Accordingly, lack of appropriate notice is highly
indicative of unprotected action.
12. Proposed subsection 127(3D) will
set out matters that the Commission must have regard to when considering whether
to issue a section 127 order, as follows.
13. A key indicator that
unprotected action is occurring is where a party engages in industrial action
even though the party is subject to a certified agreement that has not reached
its nominal expiry date. Industrial action taken in such circumstances is
prohibited by section 170MN of the Act. Paragraph 127(3D)(a) addresses this
issue.
14. There have been instances where the Commission has exercised
its discretion under existing subsection 127(1) to not make an order even though
unprotected industrial action was occurring. However, any unprotected
industrial action is undesirable. Accordingly, proposed paragraph 127(3D)(b)
will require the Commission to have regard to the undesirability of the
occurrence of unprotected action when considering applications both for orders
under subsection 127(1) and for interim orders.
15. Proposed notes to
subsection 127(3D) will note the prohibition in section 170MN and that
industrial action that is not protected action may be in breach of contract, or
may be a common law tort.
Item 2 – Subsection
127(4)
16. Existing subsection 127(4) provides that the power to make
an order under section 127 is in addition to the powers conferred on the
Commission elsewhere in the WR Act. This item proposes a consequential
amendment to remove a reference to subsection (1) and substitute references to
subsections (1) and (3A).
Item 3 – Subsection
127(5)
17. This item proposes a consequential amendment to subsection
127(5), which expressly states that a person or organisation against whom which
an order is made must expressly comply with that order. This item inserts a
reference to subsection (3A) after the reference to subsection (1). This is to
ensure that the requirement for persons or organisations named in the orders to
comply with those orders is extended to those persons or organisations named in
interim orders.
18. Subsection 170MT(1) of the WR Act provides an immunity to ensure that
section 127 orders do not apply to unprotected action. This item along with
Item 7 and Item 8 combine to relocate the immunity from section 127 orders from
protected action from section 170MT to section 127 for plain language purposes.
19. This item proposes a consequential amendment to subsection 127(6),
which provides discretion to the Court to issue an injunction where a person or
organisation bound by a section 127 order has breached that order. This item
inserts a reference to subsection (3A) after a reference to subsection (1).
20. This item proposes the insertion of a definition into section 127 by
creating a new subsection 127(8). The definition will clarify that the
“protected action” referred to in section 127 is protected action
under Division 8 of Part VIB of the WR Act.
Item 8 – At the end of section 170MT
21. As noted above,
these items propose consequential amendments to section 170MT to remove the
reference to the immunity under which section 127 orders do not apply to
protected action from section 170MTand to place that immunity in section 127.
Item 7 repeals subsection 170MT(1) and Item 8 inserts a note at the end of
section 170MT to cross reference the provision in subsection 127(5A).