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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
(Amendments to be moved on behalf of the
Government)
(Circulated by authority of the Minister for Employment and
Workplace Relations, the Honourable Tony Abbott MP)
WORKPLACE RELATIONS AMENDMENT (GENUINE BARGAINING) BILL 2002
(Amendments to be moved on behalf of the
Government)
The Government is proposing minor amendments to Schedule 1 of the
Bill.
The amendments to Schedule 1 relate to section 170MW of the Workplace
Relations Act 1996, under which the Commission may make orders terminating
or suspending bargaining periods. The proposed amendments will have the
following effects.
• Applicant will be able to apply under section
170MW for suspension or termination of any or all bargaining periods applying to
a specified business, or part or parts of a business, without having to identify
the bargaining periods.
• It will be a responsibility of the
Australian Industrial Relations Commission to satisfy itself as to which
bargaining periods are relevant for a particular
application.
• Where the Commission suspends a bargaining period,
the Commission will be able to declare that a specified negotiating party or
employee of the employer is not allowed to initiate a new bargaining period in
relation to specified matters that are dealt with by the proposed agreement
following a suspension of a bargaining period. The declaration will have effect
for no longer than the length of the suspension. The declaration may also
provide that a bargaining period may be initiated subject to conditions.
The proposed amendments will not have any impact on the Commonwealth
Budget.
NOTES ON AMENDMENTS
Amendment No. 1 would insert a new item into Part 1 (Amendments) of
Schedule 1 (Bargaining Periods) to the Bill.
New Item 1A –
Subsection 170MI(1) (note)
This item would amend an existing note
after subsection 170MI. This is a consequential amendment related to Amendment
No. 2.
Subsection 170MI(1) provides for initiation of bargaining periods.
The existing note mentions that the subsection operates subject to existing
provisions which can restrict capacity to notify bargaining periods. This new
item would amend the note, so as to insert a reference to subsection 170MW(9A),
proposed under Amendment No. 2, which would also potentially restrict capacity
to notify bargaining periods.
Amendment No. 2 would insert two additional items into Part 1 of Schedule
1 to the Bill.
Item 2A would insert two additional subsections into section 170MW of the
Act, proposed subsections (8A) and (8B).
Proposed subsection (8A) would
allow an applicant to apply under s.170MW for suspension or termination of any
or all bargaining periods applying to a specified business, or part of a
business, without having to identify the bargaining periods. The application
would have effect as if it were an application for a termination or suspension
of a specific bargaining period or periods.
Proposed subsection (8B)
would make it the responsibility of the Commission to satisfy itself as to which
bargaining periods are relevant for a particular application. That is,
progression of applications for suspension or termination of bargaining periods
would not depend on identification of bargaining periods by the applicant or any
other party. In practical terms, the Commission would fulfil its responsibility
in this regard by utilising the services of the Australian Industrial Registry,
which would identify bargaining periods relevant to a business through its
information technology system.
Item 2B would insert an additional subsection into section 170MW of the
Act, proposed subsection 9A.
Proposed subsection 9A would allow the
Commission to ban the initiation of further bargaining periods during a
suspension under s.170MW or allow the initiation of further bargaining periods
subject to conditions. The declaration would have effect for no longer than the
length of the suspension.
The proposed subsection is set out in similar
terms to existing subsection 170MW(10), but applies to suspensions rather than
terminations. Under s.170MW(10), the Commission may declare, when terminating a
bargaining period, that a new bargaining period may not be initiated for a
specified period. Without such a power, parties could avoid the effect of a
termination by notifying under a new bargaining period. However, this power is
not presently available when the Commission suspends a bargaining period. The
proposal to allow such declarations in the context of a suspension order would
effectively close a loophole that could make suspension of a bargaining period
ineffective.
Amendment No. 3 would insert a new item 3A into Part 2 (Application) of
Schedule 1 to the Bill.
New Item 3A – Application of items 1A,
2A and 2B
Item 3A would be an application provision for the new items
to be inserted by these amendments. It would apply the amendments to bargaining
periods that began before at or after the commencement of the amendments, except
where proceedings have already been determined.