Chapter Three - Australian Democrats' Report
1.1
The following minority report deals with three
interrelated workplace relations bills:
Workplace Relations Amendment (Improved Remedies for
Unprotected Action) Bill 2002;
Workplace Relations Amendment (Codifying Contempt
Offences) Bill 2003
Workplace Relations Amendment
(Compliance with Court and Tribunal orders) Bill 2003
1.2
Before I address the Bills separately, I will
make some remarks.
1.3
The Democrats are committed to negotiating
meaningful industrial relations reforms through the Senate. We will consider
these three bills before us on their merits.
1.4
The Majority Report notes that the aim of these
bills is to reinforce the Government’s determination to have a fully functional
industrial relations system by ensuring the integrity of the Commission is
maintained, and that these Bills will ensure that unions that disregard the law
are penalised appropriately.
1.5
Firstly, the Democrats support the Government’s
aim to ensure the integrity of the Commission is maintained, but we perhaps
differ with the government on how best to achieve that.
1.6
The Australian Democrats have a long tradition
of supporting the AIRC having an independent discretion to determine industrial
relations matters on their merits. Discretion of course is never open-ended,
but it has long been our view that wherever possible such discretion is a
better guarantor of fairness and flexibility.
1.7
The Democrats also believe that one of the
weaknesses of the current system is the lack of powers the AIRC currently has to
arbitrate and conciliate disputes. The Democrats argue that the capacity for
the AIRC to resolve disputes on its own motion be increased and that resources
to the AIRC also be increased to ensure the timely resolution of disputes.
1.8
Secondly, the Democrats believe that the rule of
law must apply. If the law is being flouted we support stronger law, but
increased powers are only justified where there is sufficient evidence that a
real and significant problem exists.
1.9
We are disappointed that the government has
failed to provide data and evidence that demonstrates the imperative to undertake
all the proposed changes. Instead the Committee heard evidence that
non-compliance on section 127 orders were infrequent, and that action under 299
(1)(e) has never occurred.
Workplace Relations Amendment (Improved Remedies for Unprotected Action)
Bill 2002
1.10
The distinction between unprotected and
protected action is vital in law and practice. It is a matter of regret that
the Department has little data on the scale, extent and nature of industrial disputes
under these two heads. It makes it difficult to design appropriate legislative
responses to either.
1.11
In principle by its nature unprotected action is
deserving of improved legislative remedies to lessen its occurrence.
1.12
The Government argue that this Bill will facilitate speedier access to a
remedy in response to unprotected industrial action, by encouraging a decision
on a section 127 application within 48 hours.
1.13
The Act already requires that the Commission
must hear and determine an application for an order under this section as
quickly as practicable.
1.14
We also heard evidence from the Government that
“section 127 has generally proved to be an effective mechanism[1] ... and that the Government recognises that the majority of section
127 applications are handled reasonably expeditiously, but from time to time
there are cases were delays occur’.[2]
1.15
As mentioned in the opening statement, the
Democrats support the AIRC having an independent
discretion to determine industrial relations matters on their merits, and would
argue that on the evidence available to us the AIRC do appear to be dealing
with applications as quickly as practicable.
1.16
The Democrats would question whether the problem
is one of lack of resources to assist the AIRC to process the applications and
make orders.
1.17
The bill also deals with the issue of interim
orders. Again the Government’s own evidence suggests that the Commission is
already able to make interim orders:
The utility of section 127 orders of an interim
nature was recognised in the Coal and Allied case about the dispute at Hunter
Valley No. 1 mine in 1997. In that dispute the Commission made an order, which
it described as interim, because in it’s view it was necessary:
... that the Commission should be in a position
to determine the issues that arise in this matter free from the pressures and
distractions of continuing industrial action.[3]
1.18
The Democrats’ previous position on this matter
is worth reiterating:
It may be appropriate to give the Commission
the discretion to issue interim orders if the hearing is likely to be lengthy,
balancing the rights of both parties. Such an approach would seem more
reasonable than a mandatory 48 hour rule... If it were to be supported, it would
need to be amended... to 72 hours using the precedent in section 166A and...
qualified by a note indicating that this is an exceptional power that must only
be used if the Commission considers that it will likely result in the resolution
of the dispute.[4]
1.19
The Democrats must also consider whether to propose
to amend the WRA to require all agreements to provide effective dispute
resolution mechanisms. These may assist the AIRC to arbitrate disputes as a
better guarantee of fairness and flexibility, as opposed to the alternative of
litigation and sanctions.
Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003
1.20
This bill aims to codify the generic criminal
contempt offence – 299 (1)(e) - provisions to ‘ensure that the Commission is
properly protected from contempt style behaviour and perjury’.[5]
1.21
Once again, in principle reinforcing the rule of
law is very attractive to the Democrats, but given that the Government provided
evidence that no action under 299 (1)(e) has ever occurred,[6] the Democrats must question how
much real need there is for this amendment.
1.22
We will need to examine the amendments and the
Government’s justification further.
1.23
With respect to increasing penalties, the
Democrats support tougher penalties for those who purposely ignore Commission
and court orders, but will need to examine these specific proposed amendments
and penalty recommendations with regard to their deterrent effect.
1.24
We note that in response to a question asked by
the Chair as to what she considered the problem was with updating the financial
penalties, Ms Rubeinstein from the ACTU stated that:
updating the penalties is not the major problem; it is the
changing of the matters to which the penalties apply that is the key issue. [7]
1.25
We also note the concerns raised about the
potential for cumulative penalties, where someone could incur a civil penalty
and also face criminal contempt penalties. We note further the proposed new
prohibitions on giving false evidence, which the Bills Digest comments on as
follows:
unlike section 35 of the Crimes Act,
this offence does not require that the false evidence touch on matter material
to the proceeding.[8]
Workplace Relations Amendment (Compliance with Court and Tribunal orders)
Bill 2003
1.26
The Bills Digest for this bill highlights some
interesting issues in relation to the proposed amendments to provide a
mechanism for the Minister to seek financial penalties for non-compliance with
orders of the AIRC and Federal Court. The Bills Digest notes that:
It would appear
that the conduct that has inspired these proposals is the refusal of some high
profile union officials to comply with Commission orders issued under section
127 of the WR Act to cease industrial action... such orders are already enforceable by the Federal Court under
section 127(6) of the WR Act but it would appear that some employers are
reluctant to press their rights under this provision.[9]
1.27
The Bills Digest goes on to provide a case study
that encapsulates the apparent problem:
In another case, Justice
Merkel, on 29 May 2000, found the Secretaries of the
Victorian Australian Manufacturing Worker’s Union and Electrical Trades Union both guilty of contempt of court. His Honour found that they had wilfully
breached the orders and exacerbated the breach by telling journalists of their
intention to defy the orders. The Australian Industry Group, which brought the
original action, did not seek to enforce the failure to pay the fine by the
AMWU Secretary as the fine of $20,000 would be going into consolidated revenue.
The Attorney-General also did not consider it his duty to enforce the fine as
it was considered the enforcement of a private right. Justice
Merkel noted that a refusal of
a duty to enforce could raise the issue of obstructing the course of justice
and that if such refusals to enforce continued, then the Courts should make provisions
for the enforcement of its own penalty orders for contempt.[10]
1.28
It is clear that a mechanism currently exists to
deal with section 127 orders, and that for one reason or another it is not
being utilised.
1.29
The Democrats are not convinced this necessarily
justifies the involvement of the Minister for Workplace Relations, especially
given the proposed provisions of this bill applies to any order
or direction of the Commission or Court, and not just orders for the
enforcement of injunctions to prevent strike action[11].
1.30
Nor do the Democrats think that the Minister for
Workplace Relations should have this power to seek financial penalties, rather
than the Commonwealth Director of Public Prosecutions (DPP), or as Justice Merkel
argued, the Courts. Justice Merkel said the Courts should make provisions for the enforcement of its
own penalty orders for contempt.
1.31
We will explore this issue further prior to
debating the bill.
1.32
With respect to the proposed disqualification
amendments, the Democrats, as previously stated, support
tougher penalties for those who purposely ignore Commission and court orders,
and therefore will consider these amendments on merit. However we note that
several issues were raised in the Bills Digest and through the Senate inquiry
that will need to be taken into consideration.
1.33
In comparing the
proposed provision with Corporations Law, the Bills Digest notes:
In the present Bill, contrary to the corporate governance disqualification provisions, applications
are brought by the Minister rather than a body equivalent to ASIC, and there is
no additional requirement that a court be satisfied that the disqualification
is justified. As noted in the Main Provisions section below, the
disqualification in the present Bill is automatic but then subject to appeal.[12]
1.34
Associated with concerns raised about the
appropriateness of ‘automatic’ disqualification, was the costs that would be
incurred to a union official, for example, of applying to a federal Court not
to be disqualified
Senator Andrew Murray
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