Chapter Two - Opposition Senators' Report
2.1
All three bills are simply designed to restrict
legitimate union activity. They do nothing to help resolve the basis of
industrial disputes and disagreements between industrial parties.
2.2
Employees, and the unions that represent them,
take industrial action when there is a disagreement with the employer about an
issue that cannot be resolved – they reach an impasse. Seeking to impose even
greater penalties on industrial action that results from frustration with such an
impasse does not resolve the underlying issue.
2.3
These bills are extremely one-sided and strongly
skewed in favour of penalising unions and assisting employers. They do not help
to maintain a balanced Australian industrial relations system. The current system
is already overly skewed in favour of employers, places substantial
restrictions on the taking of industrial action, and has been condemned by an
International Labour Organisation finding.
2.4
The potential effect of the combination of these
bills was highlighted by the SDA, who noted that it would be possible to be
tried for a criminal breach and then subsequently for a civil breach for the
same act[1].
DEWR admitted this[2].
2.5
The evidence of witnesses supported the fact
that there are already existing remedies in the WRA that deal with industrial
action, contempt and breaches of court and commission orders. In the very rare
occasions that actions are brought in respect of breaches of Court or
Commission orders, penalties have been imposed and paid.
2.6
There was no evidence presented to support the
contention that these reforms are necessary or desirable.
2.7
For these reasons, we strongly recommend to the
Senate that all three bills must be opposed.
Evidence of existing prevalence of non-compliance
2.8
There was no evidence presented to the Committee
to support the view that the incidence of industrial action or non-compliance
with court or tribunal orders has increased, or is so prevalent that systematic
changes are required to deal with these issues.
2.9
In fact, the opposite was found to be the case.
Industrial disputation rates are falling and the very few allegations of
non-compliance raised were found to be, in many cases, insignificant or
unproven.
2.10
ABS statistics show a trend of declining
industrial disputation in Australia[3].
2.11
A government press release of December 2002
listed 22 union breaches of court and tribunal orders as justification for the
need for these extreme and punitive bills.
2.12
However, these breaches spanned over a period of
four years, and the evidence of the ACTU was that many of these breaches were
trivial, or of such short duration that the relevant disputes were resolved
before any further enforcement action was required or taken[4]. The AMWU gave evidence that in
the majority of those cases, no finding of a breach was ever made[5], and most of these matters were
resolved by negotiation[6]
. The AMWU also noted that on the reasoning of the recent Emwest decision
about disputes during the life of an agreement, many of these 22 matters could
have been classified as protected action and, therefore, are not legitimate
examples of lawlessness[7].
2.13
The Government and the Ai Group have also
suggested that these bills are required to address bargaining disputes, such as
those in the automotive and manufacturing industries this year. In fact, this
example was the only industrial disruption referred to by the Ai Group when
questioned by Senator Tierney[8].
2.14
This ignores the fact that this type of
bargaining and disputation takes place in the legitimate context of bargaining
for a new collective agreement. Within this context, the taking of industrial
action is legally protected by the current law, and would, therefore, not be
affected by these bills.
2.15
Ai Group also gave evidence that out of 700
enterprise bargaining negotiations that took place in the past year, only four
involved alleged non-compliance that led to applications to suspend or
terminate the relevant bargaining period. On Ai Group’s own admission, even
these four instances were within the period of legitimate re-negotiation of a
certified agreement[9]
.
2.16
It is absurd to suggest that the prevalence of
lawful, protected industrial action justifies punitive new laws aimed at
unprotected, unlawful industrial action.
Codifying Contempt
2.17
There are already provisions in the WR Act that
penalise breaches of the relevant provisions of the Act, so it is difficult to
see why a specific disobedience contempt provision is needed [10]. Section 299 in the current
Act specifically covers contempt-like offences.
2.18
The only material concern raised by the Ai Group
about the current provisions related to delays in enforcing orders by taking
matters to Court[11].
However, the amendments will not resolve this concern.
2.19
The government failed to acknowledge or address
the issue raised by the ACTU, that section 299 in the WR Act is similar to
corresponding provisions in the Administrative Appeals Tribunal (AAT) Act, and
that the government has not signaled any desire to change the AAT Act.[12]
2.20
‘Disobedience’ contempt, of the kind proposed in
the bill, is not recommended by the Australian Law Reform Commission report
that the Government relies on in proposing these changes[13]. It is inappropriate that new
prohibitions on giving false evidence do not appear to be restricted to sworn
evidence[14].
2.21
Imprisonment is not appropriate as the primary
remedy for the taking of industrial action[15].
2.22
Although the ACTU agreed that in principle the
updating of penalties as part of this bill ‘is not the major problem’[16], the level of the existing
penalties is also hardly a significant problem given that section 299 has never
been used.
2.23
Labor Senators are most persuaded by the absence
of any evidence that section 299 has ever been used. As a result, it is
impossible to assert that section 299 is not working effectively and needs to
be amended.
Compliance with Court and Tribunal Orders
2.24
The three main areas of concern in relation to
this bill are:
- the one-sided nature of the bill;
- that the 5 year automatic disqualification from
office of union officials and employees is unreasonably punitive; and
- that the Minister’s capacity to continue legal action against
union officials once disputes are resolved will create greater conflict.
2.25
This bill is even more draconian and punitive
than similar provisions in the Government’s Workplace Relations Amendment
(Registered Organisations) Bill 2001, which was not passed by the Senate.
One-sided
2.26
Although the bill applies to all registered
organisations, including employer organisations, it is clearly aimed at unions
as employer organisations do not engage in industrial action.
2.27
This is supported by Ai Group evidence:
I would have to say that we have not initiated industrial action
organisationally...[17]
2.28
The one-sided nature of the bill is exacerbated
by the fact that these provisions do not affect individual employers who may
engage in industrial action such as lockouts, even though the Ai Group gave
evidence that their members would have conducted ‘over a dozen’ lockouts so far
in the 2003[18].
2.29
The department also admitted that although the Bill technically applies to all registered
organisations, it is aimed at unions and employees:
Senator Campbell: So essentially, these disqualification
offences are targeted at union officials or union employees?
Mr Bennett: I think that is a fair description, yes[19].
Unreasonably punitive
2.30
The effect of this bill is that union employees
and officials would be automatically disqualified from holding union office for
a period of 5 years, if they are subject to a pecuniary penalty of any amount
for any breach of any direction or order of the Commission or Court.
2.31
This is an unreasonably punitive proposal.
2.32
Similar automatic disqualification provisions in
the corporations law apply only to serious criminal conduct[20], and there is no equivalent
capacity in corporations law for the Minister to bring such actions. DEWR
admitted that disqualification from holding office for civil offences under the
Corporations Act is not automatic[21].
2.33
Automatic disqualification of a union official
can only be reduced or set aside on application to the Federal Court – a costly
and time-consuming process. DEWR admitted that it did not know and ‘have not
tried to work out’ what the estimated cost of such applications or proceedings
would be[22].
Minister’s intervention
2.34
This bill increases the capacity of the Minister
to continue proceedings against a union or its officials or employees after a
dispute is resolved. This is of concern as it could inflame or prolong
disputes. This concern is acknowledged by the Ai Group, who gave evidence that
their:
...preference is that matters be resolved between the parties at
the enterprise level...once the matters are resolved at the enterprise level...
that is preferably where it should finish[23].
Improved remedies for unprotected action
2.35
There was no evidence presented to the committee
that would justify the changes to section 127 and related provisions proposed
in this bill.
2.36
The Government is trying for the third time to
change section 127 to make it harder to take industrial action. Two previous
attempts did not pass the Senate, and we see no reason to change our view now,
particularly given that this bill contains provisions that are even more
unbalanced than previous proposals.
2.37
Similar provisions in the government’s Workplace
Relations Amendment (More Jobs, Better Pay) Bill 1999 explicitly applied to lockouts as well as strikes. This bill
is silent on the issue of lockouts. Neither the 1999 Bill nor the Workplace Relations Amendment Bill 2000 version of these
provisions, sought to impose a biased new set of criteria for the Commission to
consider in making interim orders.
2.38
The weight of the evidence presented to the
committee does not in any way support the case for legislative change in
respect of the handling of section 127 applications. In fact, evidence
suggests that the system is working well.
2.39
For example, despite their submission supporting
this bill, the Ai Group’s evidence supports the view that changes of the
magnitude proposed by this bill are not required:
It is our view that, by and large, the provisions of section 127
of the act are quite effective...[24]
Timely remedy
2.40
The addition of words ‘within 48 hours’ are
unlikely to enhance quick resolution of these matters, as section 127
applications already have to be listed ‘as soon as practicable’[25] . It was undisputed
that over 85 percent of section 127 matters are already listed within 4 days[26] .
2.41
There are a number of reasons why section 127
orders may not be listed immediately or may never reach the decision stage.
Many section 127 applications are not pursued for the simple reason that
disputes are resolved very quickly and do not require further action by the
Commission[27]
.
2.42
Although the Ai Group’s submission suggested
that there had been some instances of delay by the Commission in respect of
section 127 applications[28],
the Ai Group was unable to provide any specific examples of such delays, or any
aggregate statistics. The Ai Group mentioned ‘four matters’ where delays were
experienced but was unable to provide information about the extent of any
delays, the effects of any such delays, or the names of the workplaces involved[29]. The vagueness of this
evidence must count against it being considered with any weight whatsoever.
2.43
DEWR only provided one example of a case in
which the timing of a decision in respect of a section 127 order was of concern[30]. It provided no statistical
evidence that there was a systemic problem in respect of the Commission’s
handling of section 127 applications. To the contrary, in its submission it
noted that:
The Commission has generally been responsive and prompt in
dealing with section 127 applications[31]
2.44
Further, if the Government is concerned about
inefficiencies in the handling of section 127 applications, it could assist the
Commission with improved resources or other administrative action. However,
DEWR admitted that it was not aware of any non-legislative action proposed or
taken by the Government to assist the Commission to deal with section 127
applications[32].
Unbalanced criteria
2.45
Similar provisions to those in this bill have
been tried before by this Government, and they have failed in the Senate
because they were unbalanced and unwarranted.
2.46
However, this bill contains one key innovation –
it blatantly seeks to corrupt the impartiality of the Australian Industrial
Relations Commission – by requiring that the Commission skew its consideration
of section 127 matters in favour of employers.
2.47
The bill would constrain the discretion of the
Commission by inserting new considerations for the determination of section 127
applications, which are so one-sided that they would effectively require the
Commission to be biased towards employers.
2.48
Imposing a requirement of bias on an impartial
umpire can only be designed to damage the reputation of that body and its
standing in the community, and must be vigorously opposed.
Interim orders
2.49
The Commission already can and does make interim
orders[33].
DEWR agreed that interim orders can be made, but not clearly enough for the
Government to be entirely satisfied.[34]
Conclusion
2.50
These bills are blatantly unbalanced and, if
passed, would further erode the rights of working Australians and the unions
that represent them.
2.51
The evidence presented to the committee shows
that these bills will not assist in the efficient operation of our industrial
relations system, and that these bills are instead likely to increase the risk
of ongoing conflict. There are many reforms to the Workplace Relations Act that
could assist with the resolution of industrial disputes, but none of them are
contained in these three bills.
Therefore, Opposition Senators strongly recommend that the
three bills be rejected.
Senator George Campbell
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