Chapter 10 - Schedule 11 - Industrial action and schedule 12 - Secret ballots
10.1
This Chapter covers Schedules 11 and 12 of the
Bill. Schedule 11 amends the WR Act in relation to industrial action, and
Schedule 12 would introduce new provisions to the Act requiring secret ballots
prior to industrial action.
Outline of proposed amendments
Industrial action
10.2
The Bill makes the following key amendments to
the provisions of the WR Act relating to protected industrial action:
- extension of the period of notice required for protected
industrial action from three working days to five working days;
-
requiring notices of protected industrial action to contain more
precise details as to the nature and duration of proposed industrial action;
- separation of the provisions of the Act allowing the Commission
to suspend and terminate bargaining periods, to amend and set out more clearly
the circumstances in which the Commission would be required to terminate a
bargaining period, and introduce new provisions to require the Commission to
suspend a bargaining period if a party is engaging in unprotected industrial
action and to impose cooling off periods in cases of protracted industrial
action;
-
introduction of new provisions to prevent ‘pattern bargaining’ by
organisations of employees;
- emphasising that the Commission must act quickly to prevent
unprotected industrial action from occurring, and allowing State Supreme Courts
jurisdiction to enforce Commission orders under section 127 of the WR Act;
- repealing section 166A of the WR Act to prevent unnecessary delay
in access to injunctions or common law remedies against unprotected industrial
action;
- clarification that ‘sympathy’ industrial action cannot be
protected industrial action under the WR Act; and
- amending the provisions regarding prohibition of ‘strike pay’.
Secret ballots
10.3
Schedule 12 of the Bill introduces new
provisions to the Act requiring unions and employees to conduct secret ballots
before taking industrial action. In effect, no industrial action by unions and
employees could have ‘protected’ status under the Act unless a secret ballot
has been conducted. Other prerequisites for protected action remain in place,
for example, industrial action can only be taken during a bargaining period for
an agreement.
10.4
The new provisions require a union or group of
employees to apply to the Commission for a secret ballot order, with specific
details of the nature and duration of the proposed industrial action. New
section 170NBCA generally requires the Commission to determine all applications
for a secret ballot order within four working days. The Bill also prevents the
Commission from ordering a ballot where proposed industrial action is to be
taken in pursuit of ‘pattern bargaining’ arrangements.
10.5
The costs of the ballot will be borne by the
applicant, however applicants will be able to seek reimbursement of up to 80%
of the costs of the ballot from the Commonwealth Government under proposed
section 170NBFA.
10.6
A ballot would be passed if at least 50% of
those employees eligible to vote voted in the ballot, and of the employees who
voted, more than 50% voted in favour of the industrial action. Which employees
are eligible to vote depends on who applies for the ballot order – if a union
applies, only those employees who are union members and who would be subject to
the agreement being negotiated can vote. If a group of employees applies for
the ballot order, all employees who would be subject to the proposed agreement
are be eligible to vote.
Evidence
10.7
The Committee
heard evidence as to the level and nature of industrial disputes in Australia
under the WR Act. This evidence is discussed in Chapter 3 of this report.
10.8
In general,
employer organisations submitted that the provisions of the WR Act are not
operating to prevent damaging industrial action, particularly unprotected
industrial action. Most employer groups therefore supported further measures
outlined in the Bill:
In general terms, the AI
Group believes that the Workplace Relations Act 1996 has worked reasonably
well, with the main exception being in the process relating to enterprise
bargaining, protected industrial action and compliance. Our agenda is one of
proposing practical changes based around our experiences with the operation of
the legislation over the past 33 months.[1]
...illegal industrial action
is still a problem for our industry. Strikes of 24 or 48 hours duration, for
example, can be called without warning and can be costly and disruptive. By the
time companies have obtained injunctions the workers have returned to work and
the strike is over. These are the issues which have led the New South Wales
Minerals Council to support the major changes to the act.[2]
10.9
Employee organisations, lawyers and academics,
on the other hand, disagreed that further changes need to be made to the
provisions of the Act relating to industrial action. Some characterised the
Bill as ideologically driven.
The changes in the area of
industrial action amount to there being no right to strike under the second
wave Bill...The legislation concerning industrial action in the second wave Bill
is tantamount to an absolute prohibition on industrial action. There is no way
we could mount a strike of the nature of the Oakdale dispute under this
legislation, and that is a bad thing for democracy. There is every good reason to
provide for some real form of protest.[3]
10.10
The Committee also
heard concerns that the proposed amendments would breach Australia’s
obligations under International Labour Organization Conventions, amounting to
unacceptable interference with unions rights to regulate their own internal
affairs, a breach of article 3 of convention 87.[4]
10.11
This rest of this Chapter considers each of the
main proposed amendments (notice of industrial action, suspension and
termination of bargaining periods, pattern bargaining, amendment of section
127, repeal of section 166A, strike pay amendments and secret ballots) in more
detail.
Notice of industrial action
10.12
Section 170MO of the WR Act requires a union or
employees proposing to take any protected industrial action to give the relevant
employer three working days notice in writing of the action, or if the action
is in response to a lockout by the employer, then the union or employees must
give the employer notice in writing. Under this section, employers must also
give three working days notice in writing of their intention to lock out
employees, or if the lockout is in response to industrial action taken by
employees, then the employer must give the employees or union written notice of
the lockout.
10.13
Items 29 – 32 of Schedule 11 of the Bill amend
section 170MO to ensure that employees and unions intending to take any
protected industrial action would be required to give five working days written
notice of the action, and employers wanted to lock out their employees must
give five working days notice in writing. If the action was in response to
existing industrial action or a lock out, section 170MO would continue to
provide that the parties simply have to give notice in writing of the action in
response.
10.14
New subsection 170MO(5) also requires the
written notice to include specific details about the proposed industrial
action, including the precise nature and form of the intended action; the day
or days on which it is intended the action will take place; and the duration of
the intended action (item 33).
Evidence
10.15
The Department submitted in a policy document
that the amendments would give effect to the Government’s election commitment
to ‘require earlier notification of an intention to
take industrial action’, and would give the parties a better opportunity to
negotiate and reach agreement before industrial action takes place. [5]
10.16
Employer groups supported the proposed
amendment:
It is very important that employers receive sufficient notice of
protected action to enable them to adequately make preparations to minimise
losses and damage to the business concerned. Industrial action can be very
damaging, the losses resulting can be great, and this amendment would assist
employers in minimising the damage resulting from the ‘necessary evil’ of protected
action.[6]
10.17
Employers also gave examples of inadequate
notice of industrial action under the current provisions of the WR Act:
The current machinery provisions for the taking of protected
action have...been abused by: blanket notices of intention to take industrial
action being given...; Notices are given on a regular basis directed against a
substantial number of employers without there being a real intention to take
industrial action against any specific individual employer at any specific
time; notices being given which do not specify the particular type of
industrial action which is intended to be taken or the time at which it is to
commence; notices of intention to take industrial action being given without
there having been any discussion or attempt to reach agreement with an
individual employer prior to the notice being issued.[7]
10.18
The Department also provided examples of
specific decisions of the Commission where ‘inadequate’ notices of industrial
action were deemed to comply with the current provisions of the WR Act:
...in Southcorp Australia Pty Ltd re: s127(2) application to
stop or prevent industrial action (Print N8922), the Commission accepted
that a notice drafted in very broad terms would satisfy subsection 170MO(5). By
comparison, in National Workforce Pty Ltd v. Australian Manufacturing
Workers’ Union, the Court of Appeal of the Supreme Court of Victoria
suggested a stricter interpretation as to the degree of specificity required in
a notice of intention to take industrial action. In practice, some employers
have been served with notices that simply restate portions of the definition of
industrial action contained in subsection 4(1) of the Act. The nature of the
intended action is then unclear and an employer is not put on notice as to
specific actions to be taken by employees.[8]
10.19
The Law Council of Australia expressed some
reservations about the proposed amendments, considering that the Bill
provisions would compound Australia’s alleged breaches of the International
Labour Organization’s Convention on Freedom of Association and Protection of
the Right to Organise.[9]
Conclusion
10.20
A majority of the Committee supports the
amendments to extend the period of notice employees and unions must give their
employers of intended industrial action, and the period of notice employers
must give their employees if the employer intends to lock employees out.
Industrial action can have very serious financial consequences for both
employers and employees, and there is benefit in ensuring that the parties have
adequate time to prepare for these consequences.
10.21
A majority of the Committee also supports the
proposal to require specified information in written notices of industrial
action. Subsection 170MO(5) currently provides ‘A written notice...under this
section must state the nature of the intended action and the day when it will
begin.’ The provision seems fairly clear, however, the evidence demonstrates
that the provision has not operated to give effect to the clear intention of
the legislature.
10.22
The Committee majority notes that there are
concerns that the amendments may affect Australia’s compliance with ILO
Conventions to which it is signatory. However, it notes that the Government is
continuing to discuss the matter with the ILO.
Recommendation
10.23
That the amendments relating to notice of
intended industrial action and lockouts be enacted.
Suspension and termination of bargaining periods
10.24
The Bill repeals section 170MW, which currently
sets out the circumstances in which the Commission, at its discretion, may
suspend or terminate a bargaining period. Section 170MW is to be replaced by
several new sections setting out the circumstances in which the Commission may
either suspend or terminate a bargaining period.
10.25
The most significant changes from the current
provisions are:
-
generally removing the Commission’s discretion as to whether it
suspends or terminates a bargaining period;
- removing the ability of the Commission to suspend or terminate a
bargaining period in relation to workers previously covered by a paid rates
award;
- removing the ability of the Commission to terminate a bargaining
period and proceed to arbitration under section 170MX on the grounds of threats
to life, safety, health, etc or damage to the Australian economy, unless the
Commission had previously suspended the bargaining period on these grounds;
-
introducing new grounds on which the Commission must suspend a
bargaining period – where industrial action has been occurring for 14 days or
longer (‘cooling off periods’), and where unprotected industrial action is occurring.
Cooling off periods
10.26
Employers generally supported the proposals for
mandatory cooling off periods where industrial action had been occurring for 14
days or more. It should be noted that industrial action would only be suspended
if a party applied to the Commission, and the Commission was not satisfied that
it was in the public interest for the bargaining period (and industrial action)
to continue.[10]
There should be a
cooling-off period during extended protected industrial action in order to
preserve businesses and create a better environment to facilitate the
settlement of disputes.[11]
This will encourage the
parties to settle the matters at issue between them without recourse to further
industrial action. It could act as a circuit-breaker in protracted disputes.[12]
10.27
On the other hand,
unions were generally opposed to the proposals; the consequences of which were
described to the Committee by one union official:
We also wish to make some
response to the submissions made by the Australian Industry Group where they
commend the proposal to terminate a bargaining period after 14 days of
industrial action and make reference to the dispute this union had with the
Australian Dyeing Company. During the ADC dispute, our members were locked out
for most of December until ADC lifted the lockout notice at Christmas. By the
end of December, the only bargaining power these workers had was to continue to
withdraw their labour. Had they been deprived of the right to continue taking
protected industrial action, it would not have enabled fair negotiations to
recommence, and it would certainly not have enabled a cooling off of the
dispute. It would have fundamentally shifted the balance of power in ADC’s
direction.[13]
10.28
Other witnesses
were concerned about the lack of discretion given to the Commission compared
with the current provisions of the WR Act, in particular relating to the
Commission’s ability to terminate bargaining periods and arbitrate under
section 170MX.[14]
Paid rates awards
10.29
The Department submitted that ‘the existing criterion
concerning parties subject to a paid rates award would be removed (consistent
with the continuing move away from paid rates awards in the system).’[15]
10.30
The State Public Services Federation asserted
that it was often difficult for public sector employees to reach agreements
with Governments due to funding arrangements – Governments may cut budgets
available to particular agencies, but will refuse to cut programs or public
services in line with these budget cuts, leaving little room for negotiated
wages and conditions improvements:
It is because we are in that
situation that the provisions—which can be conveniently referred to as the
170MX provisions—are of substantial importance to us. Anything that weakens
those provisions puts our people in a very difficult position. Ordinary
enterprise bargaining just cannot take place, and...our members have relied on
the Commission as a place to go. It is also to be remembered that in many of
the areas we cover, industrial action is something which we would want to avoid—protected
or otherwise. The maintenance of those provisions is really the only viable
option...[16]
Conclusion
10.31
A majority of the Committee believes that the introduction of cooling off periods for
industrial action by employers and employees would assist in alleviating the
damaging effects of industrial action for all parties. It would also
potentially assist in resolving disputes through negotiation.
10.32
In relation to access to arbitration for those
formerly on paid rates awards, the Committee notes that the Commission has been
converting paid rates awards to minimum rates awards under the existing award
simplification provisions. The award simplification process will result in paid
rates awards becoming less relevant over time. The Committee does not think that
it is appropriate to maintain special provisions for public sector employees in
the WR Act. Public sector disputes should be dealt with in accordance with
standard procedures in the Act.
Recommendation
10.33
That the amendments regarding suspension and
termination of bargaining periods be enacted.
Pattern bargaining
10.34
‘Pattern bargaining’ occurs where a party
negotiating an agreement attempts to seek bargained outcomes consistent with
those achieved in other workplaces, normally within the same industry or
sector. The Bill prevents the Commission from ordering a secret ballot where
there is evidence that the applicant is engaging in ‘pattern bargaining’. This
means that no protected industrial action can take place to pursue ‘pattern’
claims. In addition, the Commission is required to terminate a bargaining
period (and cannot arbitrate) where an organisation of employees is engaged in
pattern bargaining.
10.35
The Bill does not include a definition of
‘pattern bargaining’, but includes a new section 170LG (item 17 of Schedule
11), setting out circumstances not constituting pattern bargaining (for
example, claims to give effect to a decision of the Full Bench of the
Commission establishing national standards.)
Evidence
10.36
The Australian Industry Group gave evidence
about pattern bargaining by the Australian Manufacturing Workers’ Union in
Victoria – ‘Campaign 2000’:
It is a very serious threat to industry and you only need to go
to the words of the union itself...in a letter from the secretary of the metals
division in Victoria...He starts by saying that the AMW metals division has
embarked on an industry wide campaign in the metals industry to replace
enterprise bargaining. The Campaign 2000 is to replace enterprise bargaining.
The rest of it is about how they are going to go about that campaign. By and
large that is that they will use the protected action provisions which were put
in place to facilitate enterprise bargaining, not to replace it. As part of the
process, they will make claims for across-the-board outcomes and set a pattern,
one company after the other, so they get common outcomes across industry.
Indeed, this document skites about having achieved 800 enterprise agreements
which all expire on 30 June next year. We have this apprehension about this
winter of discontent next year...from February next year, the unions intend not
to sign off on one enterprise agreement, so they can build up a head of steam
against 800 or 1,000 companies to push a range of claims which they are now
drawing up including compensation in wages for GST.[17]
10.37
The Australian Industry Group believed that the
proposed Bill provisions would prevent this campaign from continuing:
If the legislation were introduced as proposed—and we support it
and we believe it should be—it would say that pattern bargaining is not a basis
for which you can have protected industrial action.[18]
10.38
However, the Australian Industry Group submitted
that common site agreements should remain permissible for specific project or
construction sites.[19]
10.39
Other employer groups strongly supported the
proposed amendments:
Rather than focusing on developing innovative agreements with
employers on a workplace-by-workplace basis, it is unfortunate that some unions
are still driven by outdated concerns with ‘comparative wage justice’ and how
enterprise bargaining can be ‘coordinated’. Some within the union movement
describe their approach to bargaining as ‘coordinated flexibility’ and seek to
characterise the more effective enterprise approach as ‘fragmented
flexibility’.[20]
‘Pattern bargaining’ continues to be a serious problem in the
Australian labour relations system...The essential problem with pattern
bargaining is that there is a commonality of outcomes resulting from a refusal
of the union involved to actually bargain with the employer to meet the circumstances
of the of the particular workplace...A key rationale for enterprise bargaining is
that of promoting discussions and agreement on the problems and prospects of
particular workplaces, and using agreements to rectify problems and promote
prospects, and this key rationale is defeated by a pattern bargaining approach.[21]
10.40
Dr Richard Hall, from the Australian Centre for
Industrial Relations Research and Training, was opposed to the amendments for a
combination of reasons:
My understanding is that if
some or all of the terms sought by a bargainer are the same or are
substantially the same as another formal or informal agreement then there is no
right to take protected action. For proposed legislation, as I understand it,
that is meant to be premised on the ideals of allowing parties to freely
negotiate the bargains they want, this crass interventionism seems nonsensical.[22]
10.41
The Health
Services Union of Australia also opposed the amendments, submitting that
workplace-level agreements were not always appropriate in the health sector:
...pattern bargaining in many sectors makes sense, particularly in
the funded sectors, such as the aged care sector in various states and in the
public hospital sector. The reality is that these sectors are totally dependent
upon government funding. There is very little practical point in seeking to
negotiate and bargain individually with employers in these sectors; their hands
are largely tied, and this is the message they deliver to unions...The pattern
bargaining provisions would seem to us to undermine the best use of resources
between unions and employers. They would lead, in our view, to artificial
differentiation in claims.[23]
10.42
Education unions and the Community and Public
Sector Union also agreed that industry-wide pay and conditions arrangements
would be more appropriate in some Government-funded sectors.[24] On this point, Catholic
employers also indicated that they would prefer to have the option of
negotiating agreements with broader coverage than individual workplaces, in
order to avoid wasting resources.[25]
Conclusion
10.43
Pattern bargaining is inconsistent with one of
the primary objects of the federal industrial relations system – to ensure that
wages and conditions are set according to the needs of individual workplaces.
Tailoring conditions of work to meet the needs of individuals businesses and
their employees boosts flexibility, productivity and competitiveness.
10.44
A majority of the Committee notes attempts by
unions in the manufacturing sector in Victoria to move away from this primary objective,
and revert to inflexible, uncompetitive industry-wide pay and conditions. The
Committee majority considers that legislation to prevent pattern bargaining is
a matter of some urgency.
Recommendation
10.45
That the proposed amendments to prohibit pattern
bargaining be enacted.
Amendment of section 127
10.46
Section 127 of the WR Act allows the Commission
to make orders to stop or prevent industrial action. The main amendments to
section 127: require the Commission to hear applications within 48 hours where
possible, or issue an interim order stopping the industrial action; confer
jurisdiction on Supreme Courts of States and Territories to enforce section 127
orders by the Commission; limit the types of industrial action taken by
employers against which section 127 orders could be obtained by unions; and
allow the Commission to issue a section 127 order where unprotected industrial
action has taken place in the last three months and there is a reasonable
possibility that further unprotected industrial action will occur at that
workplace.
10.47
The Queensland Government indicated that it was
not happy with the proposed extension of jurisdiction to its Supreme Court
given the increasing number of section 127 orders sought:
The Queensland Government is concerned about the potential
burden that may be imposed upon the resources of the Supreme Court of
Queensland by this amendment...The Queensland Government considers that this
matter should be the subject of further investigation to determine the
appropriateness of the jurisdiction, the extent of the potential workload
arising under these provisions and the possible funding arrangements that may
need to be implemented to facilitate the amendment.[26]
10.48
Regarding the other amendments, employer groups
generally favoured the changes, pointing out that action in breach of the WR
Act’s provisions needs to be stopped quickly and effectively:
On industrial action—and
this is a serious question—why should unions who take unprotected action...in
other words, action that the parliament of Australia has decided should not
receive protection, not be quickly subject to section 127 orders to desist?
What is the point of having a statutory scheme of nominating some action
protected and then simply ignoring it?[27]
...the current provisions for
the seeking of orders under section 127, in particular to redress industrial
action, are not working. They have become bogged down in legality and do not
satisfactorily address the nature of industrial action common to the building
and construction industry. In short, the procedures are not effective against
one-off stoppages.[28]
10.49
However, other witnesses submitted that this
quick and effective remedy would only be available to employers, while
employees’ ability to stop unauthorised forms of industrial action would be
hampered by the Bill:
...there is a lack of
even-handedness insofar as section 127—as it presently exists—allows employers
an almost untrammelled right to get injunctive relief against unions and
employees...whereas there is no corresponding right enjoyed by employees if
employers decide to take a particular course that amounts to...industrial
action...There have been some limited cases where the commission has interceded
in favour of employees in such cases, but the Bill would now have those cases
removed entirely from the act. It would be completely one-sided.[29]
Conclusion
10.50
A majority of the Committee supports the amendments to ensure that access to orders
to stop or prevent industrial action can occur quickly. As already discussed in
this Chapter, industrial action can be very damaging to both employers and
employees.
Recommendation
10.51
That the proposed amendments to section 127 be
enacted.
Repeal of section 166A
10.52
Section 166A prevents employers from bringing
common law tortious actions against unions in relation to conduct in
furtherance of claims that are the subject of an industrial dispute, unless the
Commission certifies that: it is not likely to be able to stop the conduct
through conciliation; or that it has not been able to resolve the dispute
within 72 hours of a person notifying the Commission that they want to bring a
common law action; or that it would cause substantial injustice to the person
who wants to bring the common law action to prevent them from proceeding.
10.53
The Department submitted that repealing this
section was aimed at ‘preventing unnecessary delay and damage in relation to
industrial action. By imposing a pre-litigation Commission process, section
166A restricts the ability of a party affected by illegitimate industrial
action to obtain speedy access to an injunction or common law remedy.’[30]
10.54
The following extracts represent the different
range of views on repealing section 166A:
...there are arguments both for and against deleting s.166A...It is
recognised that the s.166A conciliation requirement can act as a ‘pressure
point’ in resolving unprotected disputes...It is acknowledged that there have
been instances where this has acted as a means of bringing the dispute to
resolution through compulsory conciliation...However there are reasons for
arguing that this mindset should be changed.[31]
Section 166A should be
retained because it has value as a successful circuit-breaker in serious
disputes. For the sake of investment, growth and employment and in recognition
of the importance of balance and fairness in workplace relations, we believe
the Senate Committee has a responsibility to heed the submissions and evidence
of the AI Group, especially as it relates to protected industrial action
compliance.[32]
The removal of section 166A, which provides for a cooling off period
before commencement of common law tort actions, will encourage damages actions
against industrial organisations rather than encouraging resolution of disputes
by way of conciliation.[33]
Conclusion
10.55
A majority of the Committee does not believe
that repealing section 166A will remove the scope of the Commission to
conciliate disputes (the Commission would still be able to conciliate a dispute
if the parties agreed that this would be of assistance). The amendment will
pressure unions to cease unprotected industrial action, as they risk greater
exposure to common law remedies could occur more quickly than under the current
provisions of the Act.
Recommendation
10.56
That section 166A be repealed.
Strike pay
10.57
It is illegal under the WR Act for employers to
pay employees for any period of industrial action – section 187AA. The Bill
amends section 187AA so that if employees take any period of industrial action,
it is illegal for an employer to pay the employees for the whole day on which
they took industrial action, even if the action only lasted for part of the
day.
10.58
The Department submitted that this amendment was
necessary as ‘there has been some uncertainty about (section 187AA’s)
application to partial work bans and overtime bans. The proposal to more
expressly define the period in relation to which payment is prohibited will
overcome any ambiguity in the current provisions.’[34]
10.59
Some employers were concerned that the
amendment may have the effect of forcing unions and employees to take strike
action for a whole day, which would be more damaging for businesses than more
moderate industrial action, or action for a shorter period:
...we have some concerns with
the proposals for amending the strike pay provisions, as we believe they pay
insufficient regard to the commercial realities of dealing with industrial
action. In this regard we do not consider that there is, in the building and
construction industry at least, any demonstrable need to change the current
provisions.[35]
...if, for example, a stoppage of work takes place for one hour
and employees are to lose pay for the whole day or shift, the employees are
likely to remain of strike for the whole day or shift, thereby worsening the
situation for the employer in terms of lost production and sales. Ai Group
believes the current provision is adequate with the opportunity for employers
to apply the common law principle of ‘no work as directed, no pay’.[36]
10.60
Unions were also opposed to the proposed
amendment, suggesting that it would lead to earlier escalation of industrial
disputes:
...the situation in health has
always been that an industrial campaign will start with a tokenistic, if I can
use that term, industrial action by employees, designed merely to show the
seriousness of the intent of the employees to the employer. Commonly, that is a
stop-work meeting for perhaps half an hour at a low point in the day when staff
know that is going to be of minimum impact to the clients. Our concern is about
the provision in the act that would mean that employees taking that type of
conduct would have the whole of their day’s pay withdrawn. That would lead, in
effect, to an all or nothing situation: either you walk out for the day or you
do nothing, which really escalates the heat in an industrial campaign too early
in the process.[37]
Conclusion
10.61
A majority of the Committee believes that there
is a need to clarify the existing provisions of section 187AA to remove
confusion as to the circumstances in which employees are not to be paid for
industrial action. As a general rule, if employees refuse to work as directed
by their employers, then they should not be entitled to be paid.
10.62
A majority of the Committee notes concerns that
the minimum period of deduction of pay proposed by the Bill – one day – may be
too long, and could result in premature escalation of industrial disputes.
There may be a case for reviewing the provision after a period of time to
determine whether the new provision has this practical effect.
Recommendation
10.63
That the proposed amendments to section 187AA be
enacted.
Secret ballots
10.64
Employers supported the principle of secret
ballots to ensure that industrial action was supported by the affected
employees, and to ensure that employees were given the opportunity to
democratically express their opinions on proposed industrial action. As the
Department put it:
The introduction of compulsory secret ballots prior to the
taking of protected action is designed to ensure that where protected action is
proposed, the employees directly involved will be able to make the decision on
whether or not it should be taken. Protected action ballots will thus reinforce
genuine agreement making processes at the enterprise and workplace level by
strengthening democratic decision-making.[38]
10.65
Employers generally supported the proposed
secret ballot provisions:
For unions and employees to
receive the benefit of the legislation that confers on them the status of being
protected from the liability for such damage, it is reasonable in our view to
expect that the legislation requires that a majority of employees who will be
involved do in fact support taking such serious action against their employer.[39]
...it is highly desirable that
industrial action must not occur unless due democratic processes have been
undertaken...Industrial action is seen at best as a ‘necessary evil’ not as a
desirable form of conduct, because of the damage to ordinary business
operations that can occur, and because of the existence of many alternative
ways of addressing industrial claims and concerns. These sorts of restrictions
on industrial action are appropriate.[40]
10.66
Unions and some academics and lawyers were of
the view that the process for the proposed secret ballots would place
restrictions on the ability of employees to take industrial action, and for
this reason did not support the proposed provisions:
Now secret ballots are not
something which, as a concept, we have a particular problem with. What we do
have a problem with, though, is a process which involves so much delay, which
is so technical and so difficult to comply with and which so compromises the
bargaining position of workers that it is really nothing more than a tactic to
deprive workers, again, of their capacity to bargain...worse than that, we have
to pay for it ourselves.[41]
...the requirement of a secret
ballot and the supply of detailed information in every case to secure protected
industrial action weakens the bargaining power of the union. What is the
justification for this when the commission at present has the discretionary
power to order a secret ballot on argument and/or evidence that such a course
is called for?[42]
10.67
The Textile, Clothing and Footwear Union
submitted that secret ballots would restrict the ability of employees from a
non-English speaking background to take industrial action, due to the
complicated proposals for ballot papers specifying (presumably in English) the
exact nature, time and duration of industrial action.[43]
10.68
Professor Ronald
McCallum was concerned that the move to introduce secret ballots would result
in employees ignoring the regulated processes for protected industrial action
in the WR Act and simply taking wildcat industrial action, possibly against the
advice of their unions, and for which unions could not be held legally
responsible.[44]
10.69
The Western
Australian Trades and Labour Council gave evidence that the legislative
provisions requiring secret ballots for industrial action in Western Australian
have not been used:
... And why have they never
been used? Not because people have been particularly defiant, but because they
are inoperable. You cannot pass legislation which ultimately is inoperable and
unable to be used by parties. Employers are not interested in using the
provisions, employees are not interested in using the provisions and,
certainly, there has been no attempt by either the government or any interested
party as defined under the state legislation to trigger a secret ballot process
in spite of industrial action occurring.[45]
10.70
This view was
countered by evidence from the Western Australian Chamber of Commerce and
Industry who said:
...it is very difficult, if
not impossible, to ascertain whether the Western Australian legislation
provisions have worked or not because one would need to ascertain other things.
Has it been an influence on the behaviour of people in taking or not taking
industrial action? Has it been an influence on people taking matters to the
industrial commission before or after taking industrial action? Has it been an
influence on the industrial commission in issuing orders to cease industrial
action? All of those sorts of things really need to be examined rather than
rely on the superficial view that the legislation is inoperable and has or has
not been used. I have not got the answers to those questions.[46]
Conclusion
10.71
A majority of the Committee agrees that legislation should be
introduced to require secret ballots prior to protected industrial action. This
will ensure that it is employees, and not their union officials, who decide
whether industrial action is necessary to further claims for a workplace
agreement.
Recommendation
10.72
That the amendments to require secret ballots in
order to take protected industrial action be enacted.
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