Manajemen | Fakultas Ekonomi Universitas Maritim Raja Ali Haji 2003 1 (12)
INDUSTRIAL LEGISLATION IN 2002
JOELLEN RILEY*
L
egislation proposed and passed in 2002 continued to demonstrate the close alliance
between law and politics in this field. While the Federal government pressed
on with its Workplace Relations third wave (the Registration and Accountability of
Organisations legislation being its only significant success), recently elected Labor governments moved in contrary directions. The Gallop Labor government’s new Western
Australian industrial laws feature in this report, and there is also a brief review of the
Rann government’s commissioned review of South Australia’s industrial law. New South
Wales introduced some protective measures for outworkers—and also restricted access to
unfair contracts review to ‘high flyers’.
LAW
AND POLITICS
Politics continued to drive industrial relations legislative activity across Australia
in 2002. The Federal government continued to struggle against the resistance
of a reluctant Senate to enact refinements to its Workplace Relations reform
agenda commenced in 1996. The focus of that agenda has been aptly described
as ‘individualisation and union exclusion’ (Deery and Mitchell 1999)–the
encouragement of flexible working arrangements through agreement-making,
preferably between employers and individual employees, at the workplace level,
without the substantive involvement of any ‘third parties’ (meaning industrial
commissions and unions). But while the Liberal National Party Coalition Federal
government has pressed on with bill after bill to promote these goals (with very
little success since 1997), the Labor-controlled states have striven in a different
(if not directly opposite) direction. In 2002 Western Australia passed legislation
reversing these trends, and the newly-elected Rann government in South Australia
commissioned a report into the industrial relations system (Stevens 2002) which,
among other recommendations, clearly rejects the introduction of individual
workplace agreements.1 The South Australian government has signalled an
intention to table draft legislation in response to the Stevens Report in 2003.
Arguably the most significant legislative development in 2002 was the
enactment by the Gallop Labor government in Western Australia of the Labour
Relations Reform Act 2002 (WA). This legislation unravelled the former Court
government’s system of individual workplace agreements and replaced it with new
Employer–Employee Agreements, enacted new obligations for collective
bargaining ‘in good faith’, and restored a central position in the system for
industrial conciliation and arbitration by the Western Australian Industrial
Relations Commission (WAIRC).
* Lecturer, Faculty of Law, University of Sydney, Sydney, NSW 2000. Email: joellen@law.usyd.edu.au
I am grateful to Alex Giudice for his excellent research assistance, and to Professor Ron McCallum
for his advice and encouragement. Any errors or omissions in this report are my own.
THE JOURNAL OF INDUSTRIAL RELATIONS, VOL. 45, NO. 2, JUNE 2003, 151–165
152
THE JOURNAL
OF
I N D U S T R I A L R E L AT I O N S
June 2003
The Western Australian developments deserve principal attention in this report
because they highlight the contested ground in industrial relations theory and
practice in Australia at present. Should working terms and conditions be set as
a matter of private negotiation between individual contracting parties, or does
an effective system of industrial relations require legislative support for an orderly
system of collectively determined standards? And what role should an expert
industrial relations tribunal play in an efficient and fair system? Should that role
be merely procedural—as a referee ensuring that play proceeds according to a
set of legislated rules? Or is there a need for an expert body, independent of
control by employer, employee or government, to adjudicate on matters of
substantive fairness, and play a role in the making of the rules? The Gallop reforms
(not surprisingly) contradict the Howard Federal government’s approach, in
reinstating collective mechanisms for setting wages and conditions, and
restoring a central position for the state’s arbitral tribunal.
Following a review of the Western Australian changes, we will examine
Federal developments. The main piece of federal industrial legislation to survive
the scrutiny of the Senate in 2002 was the Registration and Accountability of
Organisations package of amendments. Parliament also passed the Workplace
Relations Amendment (Genuine Bargaining) Act 2002, Act No. 123 assented to on
6 December, which increased the Australian Industrial Relations Commission’s
powers to suspend bargaining periods under s. 170MW. It also passed some minor
and technical amendments to commonwealth workers’ compensation legislation
with the Workplace Relations Amendment Act 2002, Act No. 127 assented to on
11 December.
At the time of writing, the contentious fair/unfair dismissals/terminations
proposals had not been passed in any form agreeable to both Houses. Neither
had any of the many other government proposals—on transmission of business,
secret ballots for protected action, remedies for unprotected action, simplifying
agreement-making, prohibition on compulsory union bargaining fees, or award
simplification measures. So these issues shall be left for future reports.
Although productive of no legislation in 2002, we will also update the
steps that have been taken in the past year to address an abiding problem of
providing adequate protection for employee entitlements when employers
become insolvent.
Finally, we shall briefly round up significant legislative developments
affecting work and workers around the states. Victoria is notably omitted
from the report this year. Despite much debate on the continued problem of
inadequate industrial protection for Victorian workers under the present referral
arrangements (see the 2000 edition of this report, Riley 2001: 152–5) none of
the proposed legislation to address this problem was passed, at either state or
federal level, in 2002.
A
NEW DAWN IN THE WEST?
The Labour Relations Reform Act 2002 (WA), Act No. 20 of 2002, received royal
assent on 8 July, and came into effect on proclamation on 1 August 2002. The
main work of this Act was to:
I N D U S T R I A L L E G I S L AT I O N
•
•
•
•
•
•
•
IN
2002
153
Repeal the Workplace Agreements Act 1993 (WA) (the WA Act) and institute
a phasing out of any remaining individual workplace agreements made under
that legislation;
Replace individual agreements under the WA Act with a new instrument—
Employer–Employee Agreements—which are made between employers and
individual employees, but (unlike WA Act agreements) cannot be made while
a current collective agreement covering the employment is in force;
Promote collective bargaining, and introduce an obligation to bargain in good
faith;
Restore the WAIRC’s powers to oversee good faith bargaining and conciliate
and arbitrate on matters which cannot be resolved by the parties themselves;
Enhance the minimum conditions provided under the Minimum Conditions
of Employment Act 1993 (WA) (MCE Act);
Enhance the protection from unfair dismissal: see s. 23A of the Industrial
Relations Act 1979 (WA); and
Repeal the Court government’s anti-union measures (i.e. the requirements
for pre-strike ballots, restrictions on political donations; restricted rights of
entry, and compulsory return to work orders).
Individual employer–employee agreements
The individual agreements introduced by the former WA Act lay at the heart of
the industrial turmoil between BHP and the Australian Workers Union in the
Pilbara region throughout 2000 and 2001: see AWU v BHP Iron Ore Pty Ltd (2000)
96 IR 422; [2000] FCA 39 (31 January 2000); (2000) 102 FCR 97: 97 IR 266;
(2001) 106 FCR 482; 102 IR 410; [2001] FCA 3 (10 January 2001). These individual agreements needed only to cover a few basic terms and conditions of
employment to completely oust the provisions of any state award or collective
agreement which would otherwise apply to the employee. In the making of these
agreements, employers merely had to ensure that they did not disadvantage an
employee when compared with the minimum floor of rights established by the
MCE Act.
This model—conferring primacy on individually contracted bargains, supported only by a legislated set of minimum conditions—was the preferred
Workplace Relations Act model, first proposed by the federal minister at the time,
Peter Reith. However, at the federal level this proposal was defeated by the
Democrat and Green-controlled Senate, who insisted on the maintenance of a
modified version of the no-disadvantage test. The new WA legislation allows
the making of individual Employer–Employee Agreements (EEAs) subject to
compliance with a federal Workplace Relations Act style global no-disadvantage
test. (See the Industrial Relations Act 1979 (WA) Part VID, Division 6.) Together
with the encouragement of award-making and collective bargaining, this
system ensures a role for the WAIRC in determining safety net standards.
Responsibility for the administrative arrangements for making EEAs lies with
the WAIRC (rather than the Office of the Commissioner for Workplace
Agreements established for this purpose under the old legislative scheme).
Procedures for making EEAs contain a similar set of procedural protections
154
THE JOURNAL
OF
I N D U S T R I A L R E L AT I O N S
June 2003
to those provided in the Workplace Relations Act for the making of AWAs: employees must receive an information statement adequately explaining the agreement
and the entitlements they would otherwise enjoy under an award, they must be
given a genuine choice as to whether to sign an EEA or remain on an award;
employees may appoint bargaining agents, and the making of agreements must
be free of any coercion. Unlike AWAs, which have since their inception been
subject to strict confidentiality provisions: see Workplace Relations Act 1996 (Cth)
ss. 170WHB and 170WHC, EEAs are publicly available documents (subject to
privacy of the parties’ identities and addresses): see ss. 97WD–97WF.
Good faith bargaining
According to Ford (2002), the real centrepiece of the reform package is Part II
Division 2B of the Industrial Relations Act 1979 (WA), dealing with the making
of collective industrial agreements. Notably, these may be multi-enterprise agreements, covering more than a ‘single business’ as is required (with only limited
exceptions) under federal law. The new bargaining procedures impose a duty set
out in s. 42B to bargain in good faith. Section 42B makes explicit what this
obligation involves. It includes:
(a) stating their position on matters at issue, and explaining that position;
(b) meeting at reasonable times, intervals and places for the purpose of conducting
face-to-face bargaining;
(c) disclosing relevant and necessary information for bargaining;
(d) acting honestly and openly, which includes not capriciously adding or
withdrawing items for bargaining;
(e) recognising bargaining agents;
(f) providing reasonable facilities to representatives of organisations and
associations of employees necessary for them to carry out their functions;
(g) bargaining genuinely and dedicating sufficient resources to ensure this occurs;
and
(h) adhering to agreed outcomes and commitments made by the parties.
A similar prescription was proposed at the federal level by the Senate during
the debate over the Workplace Relations (Genuine Bargaining) Bill 2002, but the
House of Representatives refused to accept it.
The WAIRC is empowered under s. 42E to excise its powers of conciliation
and arbitration to facilitate good faith bargaining. It may also declare an end to
a bargaining period (under s. 42H), and make binding enterprise orders providing
for any matter that could be included in an industrial agreement. The WAIRC
may make any order which it considers to be ‘fair and reasonable’ in the circumstances. Ford (2002) suggests that the WAIRC is likely to look to the Australian
Industrial Relations Commission’s exercise of its powers under s. 170MX of the
Workplace Relations Act 1996 (Cth) in developing the scope of these new powers
to intervene in agreement-making.
Although the reforms maintain a concession to individual agreement-making,
these Western Australian developments reflect a rejection of the atomisation
of the workforce which was attempted—in the main unsuccessfully—by
BHP during the Pilbara dispute. If past experience is reliable, the success
I N D U S T R I A L L E G I S L AT I O N
IN
2002
155
of these reforms will depend on the political survival of the Gallop
government.
FEDERAL
DEVELOPMENTS
Winning a third election late in 2001 does not appear to have smoothed the path
of the Howard government’s industrial relations reform agenda. Proposals from
the failed ‘More Jobs Better Pay’ package of 1999 have been recycled in 2002.
The only substantial success has been the passage of the Workplace Relations
Amendment (Registration and Accountability of Organisations) Act No. 104 of 2002,
which received assent on 14 November.
Registration and accountability of organisations
The government succeeded in shepherding its rewrite of the Workplace
Relations provisions relating to registered organisations through the Senate
in 2002. This Act appends a new Schedule 1B, with 11 chapters, to the
Workplace Relations Act 1996 (Cth). The Workplace Relations Legislation Amendment
(Registration and Accountability of Organisations) (Consequential Provisions) Act,
No 105 of 2002, repealed most of Part IX (leaving only the old Division 11A,
Entry and Inspections by organisations) and all of Part X of the Act. The
Consequential Provisions Act also provides for transitional provisions. Organisations
have six months (from 14 November 2002) to amend their rules and procedures
to comply with the new Schedule. They are also entitled to apply for an
extension of a further six months.
The structure of the new Schedule 1B is as follows:
• Chapter 1: Principal objects and definitions. The principal objects include
ensuring that registered organisations are representative of and accountable
to their members, that members are encouraged to participate, that organisations are managed efficiently and observe high standards of accountability
to members, and that organisations function democratically.
• Chapter 2: Registration and cancellation of registration.
• Chapter 3: Amalgamation and disamalgamation, including provisions for
secret ballots.
• Chapter 4: Representation rights of organisations and orders which the
Australian Industrial Relations Commission may make regarding demarcation
disputes.
• Chapter 5: Rules for the governance of organisations, procedures for altering
rules, and the development by the Minister of Model Rules.
• Chapter 6: Membership rights, including provisions for resignation of
membership and requirements that organisations regularly purge their
registers of non-financial members.
• Chapter 7: Procedures for elections.
• Chapter 8: Financial record-keeping and reporting requirements.
• Chapter 9: Duties of officers and employees in relation to financial management of organisations.
• Chapter 10: Civil penalty provisions for contraventions of the Schedule.
• Chapter 11: Miscellaneous matters.
156
THE JOURNAL
OF
I N D U S T R I A L R E L AT I O N S
June 2003
The main differences between the old Workplace Relations Act provisions and
the new schedule demonstrate the government’s insistence on modernising the
governance rules for registered organisations to reflect more closely the standards
and procedures required of incorporated bodies under the Corporations Act
2001 (Cth).
As noted in last year’s edition of this report (Riley 2002), this is consistent with
statements by the Minister, Tony Abbott, in his second reading speech that
the new governance rules enforced by this legislation would enable unions to
‘focus themselves as relevant, modern, service-oriented bodies’, like modern
corporations.
Duties of officers
In particular, Chapter 9 of the new schedule creates of a new set of statutory
duties for officers and employees, identical to the directors’ duties provisions in
ss. 180–3 of the Corporations Act. The adoption of the same wording as the
Corporations Act provisions will give the Federal court a rich body of corporations
law jurisprudence upon which to draw when it comes to decide cases on these
new provisions.
Unlike the Corporations Act (in which s. 184 makes a criminal offence of
deliberate or reckless breaches of ss. 181–3), there is no explicit criminal offence
created by these Schedule 1B Chapter 9 duties. That is not to say that dishonest
conduct which contravened the provisions would not also be actionable under
other law. Sections 311–4 clearly contemplate that conduct that contravenes ss.
285–8 may also be subject to criminal proceedings, and if so, any civil action must
be stayed until the criminal matter is resolved.
Section 286 of the Schedule imposes the classic fiduciary duty: an officer is
obliged to exercise powers and discharge duties ‘in good faith in what he or she
believes to the best interests of the organisation; and for a proper purpose’.
Sections 287 and 288 reflect the ‘no conflicts of interest’ and ‘no secret profits’
rules. Section 287 prohibits an officer or employee from improperly using
their position to gain an advantage for themselves or another party, or to cause
detriment to the organisation or to another person. Section 288 prohibits the
misuse of any information obtained in the course of the officer’s or employee’s
duties.
Section 285 of the schedule (reflecting s. 180 of the Corporations Act) imposes
an obligation on officers to exercise their powers and discharge their duties with
care and diligence. The test is formulated in the same way as the Corporations Act
duty. It is a modified objective test. The standard of care is that which a ‘reasonable
person would exercise’ if he or she were an officer holding the same office, with
the same responsibilities, of an organisation in the same circumstances. Like the
Corporations Act s. 180(2), s. 285 provides a ‘business judgement’ defence for
the officer who makes a decision in good faith, for a proper purpose, after
informing him or herself of all appropriate matters, and who ‘rationally
believes’ that the decision is in the best interests of the organisation. This
business judgement rule is a statutory manifestation of the reluctance of the
courts of common law and equity to second-guess business decisions,
I N D U S T R I A L L E G I S L AT I O N
IN
2002
157
especially those taken by the elected directors and officers of entrepreneurial
corporations.
Section 292 also provides a defence of reasonable reliance on information
or advice provided by others, as long as the person relied on was appropriately
qualified to give information or advice (a reliable and competent employee of
the organisation, or a professional or expert adviser); and so long as the reliance
was in good faith, and after making proper inquiries. Even if these defences are
not made out, the Federal Court has a power under ss. 315 and 316 to grant
relief from any liability for breach of these civil penalty provisions or any other
breach of trust, act of negligence or breach of duty, if the court is persuaded that
the officer acted honestly, and in all the circumstances ‘ought fairly to be excused’.
On the other hand, ratification of an officer’s conduct by the organisation itself
will not prevent action being taken against the officer for a civil penalty, although
it will be a matter that the Federal Court must take into account in determining
orders: s. 289. The orders which the Federal Court is empowered to make include:
• fines of up to 20 penalty units: s. 306(1)(b);
• compensation to the organisation for any loss it suffered through the contravention: s. 307;
• injunctions to stop conduct and remedy its effects; and
• any other orders that the court deems appropriate: s. 308.
Secret ballot provisions
Schedule 1B introduces apparently more stringent electoral procedures for
the election of officers and also for voting by members on amalgamation or
disamalgamation of organisations. The emphasis in these procedures is on
guaranteeing secrecy in ballots. For instance, the legislation now mandates
the use of a double envelope procedure for postal ballots: see ss. 65(6), 102(3)
and 188.
Greater supervisory powers are granted to the Australian Electoral Commission
(see for instance s. 200), and there are more requirements for organisations to
make reports and declarations about their electoral processes. The new rules
emphasise an insistence that registers of members contain only up-to-date records
of financial members, and that only financial members vote.
Financial accountability
Sections 253 and 257 require organisations to comply with both Australian
Accounting Standards (AAS) and Australian Auditing Standards, unless the
Industrial Registrar has granted an exemption (under s. 241) because the organisation’s size would render compliance unnecessarily onerous.
More teeth
Consistent with the Federal government’s agenda to bring more ‘law and order’
to the shop front, Schedule 1B creates many more penalty provisions than existed
under the repealed provisions. For instance, it is now a strict liability offence,
punishable by a fine of 30 penalty units, to fail to comply with an electoral
officer’s request for information on a ballot: ss. 51 and 103. It is also an offence
158
THE JOURNAL
OF
I N D U S T R I A L R E L AT I O N S
June 2003
to hinder or obstruct a secret ballot, bribe a person to vote in a particular way,
or even ‘request, require or induce’ a person to show their vote in a secret
ballot: see ss. 72 (amalgamation) and 195 (election of officers).
An organisation or branch commits an offence, and becomes liable to a fine
of 100 penalty units, if it provides assistance for any candidate to succeed in
elections: s. 190. There are also fines for making misleading declarations
about the register of members: see s. 192.
A list of civil penalty provisions is set out over two pages of the legislation in
s. 305. But there are also many other offence provisions in the Schedule to enforce
observance with the new procedures. One notable prohibition, enforced by
sanctions ranging from fines to general injunctions, is the prohibition on
hindering the formation or registration of new employee associations (see s. 21–4).
One of the important changes introduced with the original Workplace Relations
reforms in 1996 was the encouragement of the creation of smaller, enterprisebased employee associations, to facilitate the negotiation of non-union bargains.
Suspicion that the traditional unions have used bullying tactics to stymie this
development lies beneath this particular new sanction.
Enterprise associations
Another new measure to promote the creation and registration of enterprisebased employee associations is a freeing-up of the rules relating to employer influence in these associations. Formerly, an enterprise association could not be
registered under s. 188 unless it was ‘free from control by, or improper influence
from: . . . any person with an interest in that organisation’: s. 189(4)(b). This
restriction was one of the reasons that the Suncorp Metway Queensland
Enterprise Union was refused registration in 1999—a number of the employees
who would be members and officers of the association held shares in the
company.2 The wording of the new Schedule 1B s. 20(1A) makes it clear that
employee share ownership in the employer company will not of itself cause
the enterprise to fail the test for registration. Similarly, employer financing or
assistance is one matter to be taken into account in determining whether the
association is free of control by the employer—but it will no longer automatically
preclude registration: see s. 20(1B).
Genuine bargaining
The Workplace Relations Amendment (Genuine Bargaining) Act 2002 (Cth) finally
passed into law on 6 December, after a volleying match between the House of
Representatives and the Senate. The Senate refused to accept a proposed subsection 170MW(2A) which would have introduced a requirement that the
Commission take into account attempts at pattern-bargaining in any decision to
suspend a bargaining period for failure to genuinely try to reach an agreement
at the single business level. (‘Pattern-bargaining’ was not mentioned in the confusing and convoluted wording of the proposal, but that appears to have been its
intention.) On the other hand, the House refused to adopt a Senate amendment
that would have introduced an obligation to negotiate in good faith similar to
the obligation now enacted in Western Australia (see above). The government
I N D U S T R I A L L E G I S L AT I O N
IN
2002
159
rejected the ‘good faith’ clause, because of its entrenched position that ‘the
Australian Industrial Relations Commission should not be given a general role
of scrutinising the approach to bargaining taken by the parties’.3 As it stands, the
Workplace Relations Act 1996, s. 170MW(2) empowers the Australian Industrial
Relations Commission to suspend bargaining periods (and so lift protection on
industrial action) where parties are ‘not genuinely trying to reach an agreement’
at the single business level. Where the Commission has exercised this power, it
may now also make orders, under a new s. 170MWA, that the former negotiating parties should not be allowed to initiate a new bargaining period dealing
with the same matters.
A new constitutional foundation?
The Federal government’s frustration at the Senate’s persistent rejection of
much of its reform package has again raised discussion about the feasibility of
a uniform federal industrial relations scheme based on the corporations power
(Constitution s. 51(xx)). If the government pursues this path, it will have to do
so without the benefit of the state powers referred under the Corporations
(Commonwealth Powers) Act 2001 (the Referral Act) passed by each State. This is
the legislation which resulted from the States’ agreement to resolve problems
with the national enforcement of the Corporations Law (now the Corporations
Act 2001 (Cth)) by referring powers under s. 51(xxxvii) of the Constitution.
The Referral Act explicitly limits the matters referred to the Commonwealth to
enacting the Corporations Act in the form agreed, and to amendments to the text
of that legislation alone. Subsection 1(3) of the Referral Act provides that
nothing in the Act enables the Commonwealth to use the reference for the
underlying purpose or object of regulating industrial relations matters. See Ford
Austin and Ramsay (2002: 10) for a full explanation of the Referral Act and its
limitations.
As a first increment in an attempt to introduce uniform national industrial laws,
the government has tabled the Workplace Relations Amendment (Termination of
Employment) Bill 2002. If passed, this would employ the corporations power
to expand coverage of the federal unfair dismissal laws from around 50 to 85
per cent of Australian workers. According to the Minister’s Second Reading
speech, the government’s intention with this legislation would be to cover the
field of unfair dismissal protection, and cause a ‘withering away’ of the state-based
schemes. The Bill also proposes that applications relating to small businesses
should be dealt with by the Commission ‘on the papers’ without any hearing,
ostensibly to save costs. It would also double the qualifying period of employment for applicants (from three to six months) and halve the maximum compensation from six to three months for small business applicants. The Bill was
introduced on 13 November, and referred to a Senate Employment, Workplace
Relations and Education Legislation Committee.
Use of the full strength of s. 109 of the Constitution to override state systems
would still leave a gap in federal coverage. Reliance on the corporations power
means that only incorporated employers would be bound by such a scheme. This
would exclude state government employment, unincorporated small businesses,
160
THE JOURNAL
OF
I N D U S T R I A L R E L AT I O N S
June 2003
and those professional partnerships that do not presently use service companies
to employ staff.
Possibly the size of the excluded pool will diminish over time. Since July 1998,
a company has needed only one shareholder and director (see Corporations Act
ss. 114 and 201A), so sole traders wishing to opt into a federal scheme could
incorporate relatively easily. Outsourcing and privatisation of state government
services has the potential to reduce the size of the state public sector. And
proposals to allow incorporation of professional partnerships may bring those
businesses into a federal net also.
PROTECTING
EMPLOYEE ENTITLEMENTS
Community concern over the fate of employees who lose their jobs and accrued
entitlements when an employer company becomes insolvent has continued to
drive debate on reform of the Corporations Act priorities on insolvency. The Federal
Treasury has called for submissions on a proposal to raise employee entitlements
ahead of secured creditors.
The budgetary burden created by the General Employee Entitlements
Redundancy Scheme (GEERS) is undoubtedly behind this proposal. GEERS was
established to replace the less generous EESS after the Ansett Airlines crisis in
September 2001. According to Senator Joe Ludwig (Senate Hansard, 19 June
2002, p. 2213), more than $20 million was appropriated to meet claims under
GEERS for the 2001–2002 financial year. This represents a huge increase on
(approximately) $3 million which the original scheme–the Employee Entitlements
Support Scheme (EESS) launched after the National Textiles collapse—paid out
in its first year of operation.4
Under the Corporations Act 2001 (Cth) s. 560, the government stands in the
shoes of the employees whose entitlements it pays through GEERS. Presently,
the employees stand in the queue ahead of floating charge holders and unsecured
creditors, but behind lenders with fixed security. So it is not surprising that
the government has floated a proposal that would promote employees’ (and
hence its own) position in the queue for payment from the remains of failed
employer corporations. Whether this proposal survives the enquiry remains
to be seen.
There have also been calls for GEERS (or something like it) to be enacted in
legislation. Presently, the scheme is an administrative arrangement only. Because
it is not supported by legislation, employees’ entitlements to claim from the fund
are not legally enforceable.
Any payments made under GEERS are made without any legal obligation on the
part of the Commonwealth to do so and the Commonwealth reserves to itself the
right to determine in its absolute discretion matters of eligibility and amount of any
payment that it makes under GEERS.5
The rules of the scheme provide that only entitlements derived from a right under
legislation, an award, a statutory industrial agreement (such as a certified agreement or Australian Workplace Agreement) or a written contract of employment
are paid by GEERS. Some employees have been denied payments because the
I N D U S T R I A L L E G I S L AT I O N
IN
2002
161
Department has taken a strict (and arguably too narrow) view of what constitutes
a right under a ‘written’ contract of employment. In the Matter of ACN 050 541
047 Ltd [2002] NSWSC 586 (3 July 2002) reports a case involving employees of
the Australian Quality Council Ltd (AQCL), which administered the Australian
Business Excellence Awards before it failed. The letters of engagement for
AQCL staff had not mentioned any redundancy benefits, however, the company
had consistently maintained a policy of paying three weeks pay for each year of
service when employees were made redundant. This practice was evidenced by
a number of written documents, including minutes of Board meetings, Board
papers, and letters written to employees who had been made redundant. Applying
common law contract reasoning, Austin J. found that this level of redundancy
benefit had been incorporated expressly into staff employment contracts and,
consequently, ordered that the liquidator was contractually obliged to pay
the benefits to the employees. As payments in respect of retrenchment, these
payments took priority according to s. 556(1)(h) of the Corporations Act
2001 (Cth).
GEERS refused to pay these amounts, and also argued that the Commonwealth
should be repaid the amounts it had paid these employees in respect of unpaid
wages and leave entitlements ahead of any payment by the liquidator of
these redundancy benefits. Cases like this have prompted the calls from
employee representatives that a guaranteed right to receive lost entitlements
should be entrenched in legislation.
Another measure designed to assist in a solution to the problem of lost entitlements is the government’s proposal to claw back bonuses paid to directors of
failing companies. The Corporations Amendment (Repayment of Directors’ Bonuses)
Bill 2002 was tabled in October, and referred to the Senate Economics
Legislation Committee, which is due to report back in March 2003.
AROUND
THE STATES
New South Wales
1. Unfair contracts
A small but significant amendment to the Industrial Relations Act 1996 (NSW)
provisions on unfair contracts will reduce the number of claims brought before
the New South Wales Industrial Relations Commission. The Industrial Relations
Amendment (Unfair Contracts) Act 2002 (Act No. 32, assented to on 24 June 2002)
inserted a new s. 108A creating a remuneration cap of $200 000 for people
making claims under s. 106. Remuneration includes not only salary and bonuses,
but all employment benefits, including superannuation contributions and the value
of motor vehicles provided for private use: s. 108A(3). Section 108A(2) extends
the cap to partners in partnerships where the partner’s share of profits exceeds
$200 000.
Many of the most notorious million-dollar claims brought under s. 106 in recent
years—such as Canizales v Microsoft Corporation and Ors (2000) 99 IR 426; [2000]
NSWIRComm 118 (1 September 2000) and Westfield Holdings Ltd v Adams (2002)
114 IR 241; [2001] NSWIRComm 293 (21 December 2001)—would now be
162
THE JOURNAL
OF
I N D U S T R I A L R E L AT I O N S
June 2003
impossible. An early draft of the Bill expressly excluded claims based on share
option schemes, but this provision was omitted in the final Act.
A time limit of 12 months to bring claims has been inserted, and the
Commission is explicitly denied any jurisdiction to accept any application after
the time bar: s. 108B.
An obligation to mitigate has been written into the legislation: s. 106(6). Given
the analysis of the nature of compensation for redundancy explained in Westfield
Holdings v Adams, it is not clear that this proposed section would necessarily
change the way that the Commission deals with post-dismissal earnings. In that
case, a full bench referred to the Termination Change and Redundancy Case (1984)
8 IR 34 at 62 and 73, which held that severance or redundancy payments served
a distinct purpose from payments in lieu of notice. Because notice is given to
allow a dismissed employee time to readjust, proof that the employee has found
new and equally remunerative employment within the notice period will mean
that compensation for lack of reasonable notice should be reduced, or ‘mitigated’.
Severance or retrenchment payments, however, are awarded to compensate for
the ‘loss of non-transferable credits and entitlements built up through length of
service such as sick leave and long service leave, and for inconvenience and hardship imposed by termination through no fault of the employee’ (see paragraph
141). Those losses are not mitigated merely by finding a new position, and should,
therefore, not be subject to any requirement of mitigation. If Westfield is followed,
it is difficult to see that the amendment to 106(6) will have any significant effect
on awards in respect of severance pay.
2. Industrial agents
The vacuum created by declining unionism has created opportunities for professional representatives—other than solicitors—to act on behalf of both
employees and employers in proceedings before the Industrial Relations
Commission. Parliament’s concern that ‘ambulance chasers’ will exploit the industrial relations system—in particular, the unfair dismissal regime—has given rise
to the Industrial Relations Amendment (Industrial Agents) Act 2002 (Act No. 20,
assented to on 12 December 2002). This Act inserts s. 90A, which effectively
requires any ‘industrial agent’ representing any employer or employee in proceedings for compensation under s. 89 of the Act, to take reasonable steps to ensure
that the claim (or response to a claim) has reasonable prospects of success.
‘Industrial agent’ is defined as ‘a person (other than a legal practitioner or an
employee or officer of an industrial organisation) who represents a party in
proceedings before the Commission for fee or other reward’. The agent must
file a certificate with the Industrial Registrar certifying that there are reasonable
grounds for believing that the applicant or respondent has reasonable prospects
of success before proceeding with the claim or response.
If the Commission disagrees that the facts form a reasonable basis for such a
belief, the agent is presumed to have had no such belief, and will bear the onus
of proving that at the time the claim was brought there were ‘provable facts’ to
found the agent’s belief. Agents who are unable to meet this burden of proof risk
suffering a costs order against them (under s. 181). Agents are also obliged (under
I N D U S T R I A L L E G I S L AT I O N
IN
2002
163
s. 181A) to disclose in writing to both the client and the Commission, the basis
on which they calculate their costs. These requirements are similar to the requirements of solicitors to make fee disclosure under the Legal Profession Act 1987
(NSW) s. 175. Like the legal profession requirements under s. 182, a failure to
make a written fee disclosure means that the client has no legal obligation to pay
the fees. Also, like the Legal Profession Act s. 188, the Industrial Relations Act
s. 406A forbids contingency fees (based on a percentage of ‘winnings’). Any
contingency fee arrangement is unenforceable: s. 406A(3).
3. Protection for outworkers in the clothing industry
The Industrial Relations (Ethical Clothing Trades) Act 2001 (NSW) came into force
on 1 February 2002. This Act created an Ethical Clothing Trades Council to
monitor the clothing outworker industry and foster the development of appropriate self-regulatory mechanisms to prevent the exploitation of outworkers.
The Act also enables the Minister to mandate a code of practice if voluntary
self-regulation proves ineffective. The Act also amended the Industrial Relations
Act 1996 (NSW) to facilitate the recovery of unpaid remuneration by outworkers
by allowing service of claims on an ‘apparent’ employer: see s. 127A–G. Section
382 has been amended to strengthen the powers of inspectors to enter residential
premises to check compliance with industrial standards.
4. Public vehicles and carriers
The Industrial Relations Amendment (Public Vehicles and Carriers) Act 2001 came
into effect early in 2002 to extend—beyond its earlier expiry of 13 January 2002—
the exemption of Chapter 6 of the Industrial Relations Act 1996 (NSW) from Part
IV of the Trade Practices Act 1974 (Cth). Without this exemption, the NSW
Industrial Relations Commission’s supervision of contracts of carriage under
Chapter 6 would risk contravention of national competition laws.
5. Workers compensation for workers who cross state boundaries
The Workers Compensation Legislation Amendment Act 2002 dealt with jurisdictional
issues concerning entitlement to, and liability for, premiums for workers
compensation for people who work in more than one state. The Act provides
that where common law actions are brought in respect of a work injury, the choice
of law rule for the claim will be the law of the state in which the statutory
workers’ compensation is payable. Readers interested in this specialised area
are advised to consult the legislation directly for details.
South Australia
As one of its earliest initiatives, the Rann Labor government commissioned a
review of the South Australian Industrial Relations System by former Deputy
President of the Industrial Relations Commission of South Australia, Greg
Stevens. The extensive report (issued in October 2002) makes a list of 233
recommendations—too long for complete digest here. However, some issues
stand out. A number of recommendations would extend the definition of
employee—and allow the Industrial Relations Commission of South Australia
164
THE JOURNAL
OF
I N D U S T R I A L R E L AT I O N S
June 2003
(IRCSA) to ‘deem’ certain classes of workers to be employees—in the interest
of extending protective legislation to the growing numbers of people in ‘precarious’ forms of work (see Owens 2002). Chapter 5 of the report is dedicated
to an analysis of the particular problems faced by contractors (particularly
dependent contractors) and labour hire workers. The recommendations focus
on measures to ensure that these work arrangements are not used to exploit and
oppress workers. Unfair contract review provisions—apparently according to the
New South Wales model—are proposed.
The report clearly favours support of collective mechanisms for setting
working conditions. Similar to the Western Australian approach, the report
recommends the introduction of ‘best endeavours’ obligations (synonymous
with ‘good faith’) in collective bargaining provisions (Stevens 2002: 10). It
proposes the introduction of industry, multi-enterprise and project agreements,
and explicitly recommends against the introduction of individual workplace
agreements. The IRCSA would have discretionary powers to arbitrate in matters
relating to agreements, on the application of one party where the parties own
‘best endeavours’ have failed (Stevens 2002: 19). Agreement-making should be
underpinned by a system of state awards which are not limited to a certain
number of allowable award matters (Stevens 2002: 17).
The report favours the maintenance of ‘a strong, viable state system that
continues to be accessible and user friendly’ (Stevens 2002: 24). And like an
earlier Victorian proposal, it suggests the investigation of the establishment of a
Fair Employment Tribunal to oversee all employment issues.
Chapter 16 supports the adoption and promotion of various International
Labour Organisation conventions, and Chapter 17 is specifically dedicated to child
labour.
The Rann government has committed itself to considering the report and
drafting legislation for discussion in 2003.
Queensland
The Discrimination Law Amendment Act 2002 (Qld) was assented to on
13 December 2002. The Act amends a number of Queensland laws to ensure
that de facto partners, including same-sex partners, enjoy the same rights
and meet the same obligations as married spouses. Of particular relevance for
employment are amendments which would ensure that dismissed workers who
file complaints under the Anti-Discrimination Act 1991 (Qld) are not prevented
for applying under unfair dismissal provisions if their anti-discrimination claim
is dismissed. See Anti-Discrimination Act 1991 (Qld) s. 153.
The Industrial Relations Amendment Act 2002, also assented to on 13 December,
changes the composition of the Queensland Industrial Relations Commission
(QIRC). According to Premier Beattie’s statement in Hansard (Legislative
Assembly, 7 November 2002, p. 4505), this restructure followed the recommendations of the Hawke review of the public sector enterprise bargaining system.
The new structure includes the president, vice-president, and two deputy presidents who will assist the vice-president to assign commissioners to specialist
industry panels, one or more of which will be assigned to deal with public
I N D U S T R I A L L E G I S L AT I O N
IN
2002
165
sector bargaining issues. The Premier’s statement also foreshadowed development of a ‘protocol of good faith bargaining’.
Also on the agenda in Queensland, but not passed at the time of writing, was
the Workplace Health and Safety and Another Act Amendment Bill 2002 (introduced
on 3 December 2002) which would increase penalties and inspection powers under
workplace health and safety legislation.
Tasmania
The Workplace Health and Safety Act 1995 (Tas) was amended from 27 November
2002, by the Workplace Health and Safety Amendment Act 2002 (Tas), Act No. 51
of 2002. The amendments include increased penalties for infringements.
NOTES
1. See the Stevens Report, Review of the South Australian Industrial Relations System October 2002,
Recommendation no. 85, p. 18. The review is available online at http://www.eric.sa.gov.au/
show_page.jsp?id=2552, last consulted 2 January 2003.
2. Section 188 Application for Registration SMQ Enterprise Union (D No. 30007 of 1998), AIRC,
McIntyre VP, Sydney, 27 October 1999, 1269/99 Print S0298.
3. See the Statement issued by the Clerk of the House of Representatives on 16 October
2002, available online at http://search.aph.gov.au/search/ParlInfo.ASP?WCI, last consulted
13 December 2002.
4. This figure was published in the EES Scheme’s One Year Activity Report January 2001 on the
Department of Workplace Relations and Small Business website.
5. See clause 6.7 of the Department of Employment and Workplace Relations document describing
the scheme, cited by Austin J In the matter of ACN 050 541 047 Ltd [2002] NSWSC 586
(3 July 2002), para. 14.
REFERENCES
Deery S, Mitchell R (eds) (1999) Employment Relations: Individualisation and Union Exclusion an
International Study. Leichhardt: Federation Press.
Ford Bill (2002) Faith in Bargaining and Agreements: An Outline of Aspects of the Recent Western
Australian Industrial Reforms. Paper presented at the Australian Labour Law Association
Inaugural National Conference 4–5 October 2002, Melbourne, Australia.
Ford HAJ, Austin RP, Ramsay IM (2002) Supplement to Ford’s Principles of Corporations Law. 10th
edition, Australia: Butterworths.
Owens R (2002) Decent Work for the Contingent Workforce in the New Economy. Paper presented at
the Australian Labour Law Association Inaugural National Conference 4–5 October 2002,
Melbourne, Australia.
Riley J (2001) Industrial Legislation in 2000. Journal of Industrial Relations 43 (2), 148–60.
Riley J (2002) Industrial Legislation in 2001. Journal of Industrial Relations 44 (2), 198-210.
Stevens Greg (2002) Review of the South Australian Industrial Relations System—October 2002. Available
on-line at http://www.eric.sa.gov.au/show_page.jsp?id=2552, last consulted 2 January 2003.
JOELLEN RILEY*
L
egislation proposed and passed in 2002 continued to demonstrate the close alliance
between law and politics in this field. While the Federal government pressed
on with its Workplace Relations third wave (the Registration and Accountability of
Organisations legislation being its only significant success), recently elected Labor governments moved in contrary directions. The Gallop Labor government’s new Western
Australian industrial laws feature in this report, and there is also a brief review of the
Rann government’s commissioned review of South Australia’s industrial law. New South
Wales introduced some protective measures for outworkers—and also restricted access to
unfair contracts review to ‘high flyers’.
LAW
AND POLITICS
Politics continued to drive industrial relations legislative activity across Australia
in 2002. The Federal government continued to struggle against the resistance
of a reluctant Senate to enact refinements to its Workplace Relations reform
agenda commenced in 1996. The focus of that agenda has been aptly described
as ‘individualisation and union exclusion’ (Deery and Mitchell 1999)–the
encouragement of flexible working arrangements through agreement-making,
preferably between employers and individual employees, at the workplace level,
without the substantive involvement of any ‘third parties’ (meaning industrial
commissions and unions). But while the Liberal National Party Coalition Federal
government has pressed on with bill after bill to promote these goals (with very
little success since 1997), the Labor-controlled states have striven in a different
(if not directly opposite) direction. In 2002 Western Australia passed legislation
reversing these trends, and the newly-elected Rann government in South Australia
commissioned a report into the industrial relations system (Stevens 2002) which,
among other recommendations, clearly rejects the introduction of individual
workplace agreements.1 The South Australian government has signalled an
intention to table draft legislation in response to the Stevens Report in 2003.
Arguably the most significant legislative development in 2002 was the
enactment by the Gallop Labor government in Western Australia of the Labour
Relations Reform Act 2002 (WA). This legislation unravelled the former Court
government’s system of individual workplace agreements and replaced it with new
Employer–Employee Agreements, enacted new obligations for collective
bargaining ‘in good faith’, and restored a central position in the system for
industrial conciliation and arbitration by the Western Australian Industrial
Relations Commission (WAIRC).
* Lecturer, Faculty of Law, University of Sydney, Sydney, NSW 2000. Email: joellen@law.usyd.edu.au
I am grateful to Alex Giudice for his excellent research assistance, and to Professor Ron McCallum
for his advice and encouragement. Any errors or omissions in this report are my own.
THE JOURNAL OF INDUSTRIAL RELATIONS, VOL. 45, NO. 2, JUNE 2003, 151–165
152
THE JOURNAL
OF
I N D U S T R I A L R E L AT I O N S
June 2003
The Western Australian developments deserve principal attention in this report
because they highlight the contested ground in industrial relations theory and
practice in Australia at present. Should working terms and conditions be set as
a matter of private negotiation between individual contracting parties, or does
an effective system of industrial relations require legislative support for an orderly
system of collectively determined standards? And what role should an expert
industrial relations tribunal play in an efficient and fair system? Should that role
be merely procedural—as a referee ensuring that play proceeds according to a
set of legislated rules? Or is there a need for an expert body, independent of
control by employer, employee or government, to adjudicate on matters of
substantive fairness, and play a role in the making of the rules? The Gallop reforms
(not surprisingly) contradict the Howard Federal government’s approach, in
reinstating collective mechanisms for setting wages and conditions, and
restoring a central position for the state’s arbitral tribunal.
Following a review of the Western Australian changes, we will examine
Federal developments. The main piece of federal industrial legislation to survive
the scrutiny of the Senate in 2002 was the Registration and Accountability of
Organisations package of amendments. Parliament also passed the Workplace
Relations Amendment (Genuine Bargaining) Act 2002, Act No. 123 assented to on
6 December, which increased the Australian Industrial Relations Commission’s
powers to suspend bargaining periods under s. 170MW. It also passed some minor
and technical amendments to commonwealth workers’ compensation legislation
with the Workplace Relations Amendment Act 2002, Act No. 127 assented to on
11 December.
At the time of writing, the contentious fair/unfair dismissals/terminations
proposals had not been passed in any form agreeable to both Houses. Neither
had any of the many other government proposals—on transmission of business,
secret ballots for protected action, remedies for unprotected action, simplifying
agreement-making, prohibition on compulsory union bargaining fees, or award
simplification measures. So these issues shall be left for future reports.
Although productive of no legislation in 2002, we will also update the
steps that have been taken in the past year to address an abiding problem of
providing adequate protection for employee entitlements when employers
become insolvent.
Finally, we shall briefly round up significant legislative developments
affecting work and workers around the states. Victoria is notably omitted
from the report this year. Despite much debate on the continued problem of
inadequate industrial protection for Victorian workers under the present referral
arrangements (see the 2000 edition of this report, Riley 2001: 152–5) none of
the proposed legislation to address this problem was passed, at either state or
federal level, in 2002.
A
NEW DAWN IN THE WEST?
The Labour Relations Reform Act 2002 (WA), Act No. 20 of 2002, received royal
assent on 8 July, and came into effect on proclamation on 1 August 2002. The
main work of this Act was to:
I N D U S T R I A L L E G I S L AT I O N
•
•
•
•
•
•
•
IN
2002
153
Repeal the Workplace Agreements Act 1993 (WA) (the WA Act) and institute
a phasing out of any remaining individual workplace agreements made under
that legislation;
Replace individual agreements under the WA Act with a new instrument—
Employer–Employee Agreements—which are made between employers and
individual employees, but (unlike WA Act agreements) cannot be made while
a current collective agreement covering the employment is in force;
Promote collective bargaining, and introduce an obligation to bargain in good
faith;
Restore the WAIRC’s powers to oversee good faith bargaining and conciliate
and arbitrate on matters which cannot be resolved by the parties themselves;
Enhance the minimum conditions provided under the Minimum Conditions
of Employment Act 1993 (WA) (MCE Act);
Enhance the protection from unfair dismissal: see s. 23A of the Industrial
Relations Act 1979 (WA); and
Repeal the Court government’s anti-union measures (i.e. the requirements
for pre-strike ballots, restrictions on political donations; restricted rights of
entry, and compulsory return to work orders).
Individual employer–employee agreements
The individual agreements introduced by the former WA Act lay at the heart of
the industrial turmoil between BHP and the Australian Workers Union in the
Pilbara region throughout 2000 and 2001: see AWU v BHP Iron Ore Pty Ltd (2000)
96 IR 422; [2000] FCA 39 (31 January 2000); (2000) 102 FCR 97: 97 IR 266;
(2001) 106 FCR 482; 102 IR 410; [2001] FCA 3 (10 January 2001). These individual agreements needed only to cover a few basic terms and conditions of
employment to completely oust the provisions of any state award or collective
agreement which would otherwise apply to the employee. In the making of these
agreements, employers merely had to ensure that they did not disadvantage an
employee when compared with the minimum floor of rights established by the
MCE Act.
This model—conferring primacy on individually contracted bargains, supported only by a legislated set of minimum conditions—was the preferred
Workplace Relations Act model, first proposed by the federal minister at the time,
Peter Reith. However, at the federal level this proposal was defeated by the
Democrat and Green-controlled Senate, who insisted on the maintenance of a
modified version of the no-disadvantage test. The new WA legislation allows
the making of individual Employer–Employee Agreements (EEAs) subject to
compliance with a federal Workplace Relations Act style global no-disadvantage
test. (See the Industrial Relations Act 1979 (WA) Part VID, Division 6.) Together
with the encouragement of award-making and collective bargaining, this
system ensures a role for the WAIRC in determining safety net standards.
Responsibility for the administrative arrangements for making EEAs lies with
the WAIRC (rather than the Office of the Commissioner for Workplace
Agreements established for this purpose under the old legislative scheme).
Procedures for making EEAs contain a similar set of procedural protections
154
THE JOURNAL
OF
I N D U S T R I A L R E L AT I O N S
June 2003
to those provided in the Workplace Relations Act for the making of AWAs: employees must receive an information statement adequately explaining the agreement
and the entitlements they would otherwise enjoy under an award, they must be
given a genuine choice as to whether to sign an EEA or remain on an award;
employees may appoint bargaining agents, and the making of agreements must
be free of any coercion. Unlike AWAs, which have since their inception been
subject to strict confidentiality provisions: see Workplace Relations Act 1996 (Cth)
ss. 170WHB and 170WHC, EEAs are publicly available documents (subject to
privacy of the parties’ identities and addresses): see ss. 97WD–97WF.
Good faith bargaining
According to Ford (2002), the real centrepiece of the reform package is Part II
Division 2B of the Industrial Relations Act 1979 (WA), dealing with the making
of collective industrial agreements. Notably, these may be multi-enterprise agreements, covering more than a ‘single business’ as is required (with only limited
exceptions) under federal law. The new bargaining procedures impose a duty set
out in s. 42B to bargain in good faith. Section 42B makes explicit what this
obligation involves. It includes:
(a) stating their position on matters at issue, and explaining that position;
(b) meeting at reasonable times, intervals and places for the purpose of conducting
face-to-face bargaining;
(c) disclosing relevant and necessary information for bargaining;
(d) acting honestly and openly, which includes not capriciously adding or
withdrawing items for bargaining;
(e) recognising bargaining agents;
(f) providing reasonable facilities to representatives of organisations and
associations of employees necessary for them to carry out their functions;
(g) bargaining genuinely and dedicating sufficient resources to ensure this occurs;
and
(h) adhering to agreed outcomes and commitments made by the parties.
A similar prescription was proposed at the federal level by the Senate during
the debate over the Workplace Relations (Genuine Bargaining) Bill 2002, but the
House of Representatives refused to accept it.
The WAIRC is empowered under s. 42E to excise its powers of conciliation
and arbitration to facilitate good faith bargaining. It may also declare an end to
a bargaining period (under s. 42H), and make binding enterprise orders providing
for any matter that could be included in an industrial agreement. The WAIRC
may make any order which it considers to be ‘fair and reasonable’ in the circumstances. Ford (2002) suggests that the WAIRC is likely to look to the Australian
Industrial Relations Commission’s exercise of its powers under s. 170MX of the
Workplace Relations Act 1996 (Cth) in developing the scope of these new powers
to intervene in agreement-making.
Although the reforms maintain a concession to individual agreement-making,
these Western Australian developments reflect a rejection of the atomisation
of the workforce which was attempted—in the main unsuccessfully—by
BHP during the Pilbara dispute. If past experience is reliable, the success
I N D U S T R I A L L E G I S L AT I O N
IN
2002
155
of these reforms will depend on the political survival of the Gallop
government.
FEDERAL
DEVELOPMENTS
Winning a third election late in 2001 does not appear to have smoothed the path
of the Howard government’s industrial relations reform agenda. Proposals from
the failed ‘More Jobs Better Pay’ package of 1999 have been recycled in 2002.
The only substantial success has been the passage of the Workplace Relations
Amendment (Registration and Accountability of Organisations) Act No. 104 of 2002,
which received assent on 14 November.
Registration and accountability of organisations
The government succeeded in shepherding its rewrite of the Workplace
Relations provisions relating to registered organisations through the Senate
in 2002. This Act appends a new Schedule 1B, with 11 chapters, to the
Workplace Relations Act 1996 (Cth). The Workplace Relations Legislation Amendment
(Registration and Accountability of Organisations) (Consequential Provisions) Act,
No 105 of 2002, repealed most of Part IX (leaving only the old Division 11A,
Entry and Inspections by organisations) and all of Part X of the Act. The
Consequential Provisions Act also provides for transitional provisions. Organisations
have six months (from 14 November 2002) to amend their rules and procedures
to comply with the new Schedule. They are also entitled to apply for an
extension of a further six months.
The structure of the new Schedule 1B is as follows:
• Chapter 1: Principal objects and definitions. The principal objects include
ensuring that registered organisations are representative of and accountable
to their members, that members are encouraged to participate, that organisations are managed efficiently and observe high standards of accountability
to members, and that organisations function democratically.
• Chapter 2: Registration and cancellation of registration.
• Chapter 3: Amalgamation and disamalgamation, including provisions for
secret ballots.
• Chapter 4: Representation rights of organisations and orders which the
Australian Industrial Relations Commission may make regarding demarcation
disputes.
• Chapter 5: Rules for the governance of organisations, procedures for altering
rules, and the development by the Minister of Model Rules.
• Chapter 6: Membership rights, including provisions for resignation of
membership and requirements that organisations regularly purge their
registers of non-financial members.
• Chapter 7: Procedures for elections.
• Chapter 8: Financial record-keeping and reporting requirements.
• Chapter 9: Duties of officers and employees in relation to financial management of organisations.
• Chapter 10: Civil penalty provisions for contraventions of the Schedule.
• Chapter 11: Miscellaneous matters.
156
THE JOURNAL
OF
I N D U S T R I A L R E L AT I O N S
June 2003
The main differences between the old Workplace Relations Act provisions and
the new schedule demonstrate the government’s insistence on modernising the
governance rules for registered organisations to reflect more closely the standards
and procedures required of incorporated bodies under the Corporations Act
2001 (Cth).
As noted in last year’s edition of this report (Riley 2002), this is consistent with
statements by the Minister, Tony Abbott, in his second reading speech that
the new governance rules enforced by this legislation would enable unions to
‘focus themselves as relevant, modern, service-oriented bodies’, like modern
corporations.
Duties of officers
In particular, Chapter 9 of the new schedule creates of a new set of statutory
duties for officers and employees, identical to the directors’ duties provisions in
ss. 180–3 of the Corporations Act. The adoption of the same wording as the
Corporations Act provisions will give the Federal court a rich body of corporations
law jurisprudence upon which to draw when it comes to decide cases on these
new provisions.
Unlike the Corporations Act (in which s. 184 makes a criminal offence of
deliberate or reckless breaches of ss. 181–3), there is no explicit criminal offence
created by these Schedule 1B Chapter 9 duties. That is not to say that dishonest
conduct which contravened the provisions would not also be actionable under
other law. Sections 311–4 clearly contemplate that conduct that contravenes ss.
285–8 may also be subject to criminal proceedings, and if so, any civil action must
be stayed until the criminal matter is resolved.
Section 286 of the Schedule imposes the classic fiduciary duty: an officer is
obliged to exercise powers and discharge duties ‘in good faith in what he or she
believes to the best interests of the organisation; and for a proper purpose’.
Sections 287 and 288 reflect the ‘no conflicts of interest’ and ‘no secret profits’
rules. Section 287 prohibits an officer or employee from improperly using
their position to gain an advantage for themselves or another party, or to cause
detriment to the organisation or to another person. Section 288 prohibits the
misuse of any information obtained in the course of the officer’s or employee’s
duties.
Section 285 of the schedule (reflecting s. 180 of the Corporations Act) imposes
an obligation on officers to exercise their powers and discharge their duties with
care and diligence. The test is formulated in the same way as the Corporations Act
duty. It is a modified objective test. The standard of care is that which a ‘reasonable
person would exercise’ if he or she were an officer holding the same office, with
the same responsibilities, of an organisation in the same circumstances. Like the
Corporations Act s. 180(2), s. 285 provides a ‘business judgement’ defence for
the officer who makes a decision in good faith, for a proper purpose, after
informing him or herself of all appropriate matters, and who ‘rationally
believes’ that the decision is in the best interests of the organisation. This
business judgement rule is a statutory manifestation of the reluctance of the
courts of common law and equity to second-guess business decisions,
I N D U S T R I A L L E G I S L AT I O N
IN
2002
157
especially those taken by the elected directors and officers of entrepreneurial
corporations.
Section 292 also provides a defence of reasonable reliance on information
or advice provided by others, as long as the person relied on was appropriately
qualified to give information or advice (a reliable and competent employee of
the organisation, or a professional or expert adviser); and so long as the reliance
was in good faith, and after making proper inquiries. Even if these defences are
not made out, the Federal Court has a power under ss. 315 and 316 to grant
relief from any liability for breach of these civil penalty provisions or any other
breach of trust, act of negligence or breach of duty, if the court is persuaded that
the officer acted honestly, and in all the circumstances ‘ought fairly to be excused’.
On the other hand, ratification of an officer’s conduct by the organisation itself
will not prevent action being taken against the officer for a civil penalty, although
it will be a matter that the Federal Court must take into account in determining
orders: s. 289. The orders which the Federal Court is empowered to make include:
• fines of up to 20 penalty units: s. 306(1)(b);
• compensation to the organisation for any loss it suffered through the contravention: s. 307;
• injunctions to stop conduct and remedy its effects; and
• any other orders that the court deems appropriate: s. 308.
Secret ballot provisions
Schedule 1B introduces apparently more stringent electoral procedures for
the election of officers and also for voting by members on amalgamation or
disamalgamation of organisations. The emphasis in these procedures is on
guaranteeing secrecy in ballots. For instance, the legislation now mandates
the use of a double envelope procedure for postal ballots: see ss. 65(6), 102(3)
and 188.
Greater supervisory powers are granted to the Australian Electoral Commission
(see for instance s. 200), and there are more requirements for organisations to
make reports and declarations about their electoral processes. The new rules
emphasise an insistence that registers of members contain only up-to-date records
of financial members, and that only financial members vote.
Financial accountability
Sections 253 and 257 require organisations to comply with both Australian
Accounting Standards (AAS) and Australian Auditing Standards, unless the
Industrial Registrar has granted an exemption (under s. 241) because the organisation’s size would render compliance unnecessarily onerous.
More teeth
Consistent with the Federal government’s agenda to bring more ‘law and order’
to the shop front, Schedule 1B creates many more penalty provisions than existed
under the repealed provisions. For instance, it is now a strict liability offence,
punishable by a fine of 30 penalty units, to fail to comply with an electoral
officer’s request for information on a ballot: ss. 51 and 103. It is also an offence
158
THE JOURNAL
OF
I N D U S T R I A L R E L AT I O N S
June 2003
to hinder or obstruct a secret ballot, bribe a person to vote in a particular way,
or even ‘request, require or induce’ a person to show their vote in a secret
ballot: see ss. 72 (amalgamation) and 195 (election of officers).
An organisation or branch commits an offence, and becomes liable to a fine
of 100 penalty units, if it provides assistance for any candidate to succeed in
elections: s. 190. There are also fines for making misleading declarations
about the register of members: see s. 192.
A list of civil penalty provisions is set out over two pages of the legislation in
s. 305. But there are also many other offence provisions in the Schedule to enforce
observance with the new procedures. One notable prohibition, enforced by
sanctions ranging from fines to general injunctions, is the prohibition on
hindering the formation or registration of new employee associations (see s. 21–4).
One of the important changes introduced with the original Workplace Relations
reforms in 1996 was the encouragement of the creation of smaller, enterprisebased employee associations, to facilitate the negotiation of non-union bargains.
Suspicion that the traditional unions have used bullying tactics to stymie this
development lies beneath this particular new sanction.
Enterprise associations
Another new measure to promote the creation and registration of enterprisebased employee associations is a freeing-up of the rules relating to employer influence in these associations. Formerly, an enterprise association could not be
registered under s. 188 unless it was ‘free from control by, or improper influence
from: . . . any person with an interest in that organisation’: s. 189(4)(b). This
restriction was one of the reasons that the Suncorp Metway Queensland
Enterprise Union was refused registration in 1999—a number of the employees
who would be members and officers of the association held shares in the
company.2 The wording of the new Schedule 1B s. 20(1A) makes it clear that
employee share ownership in the employer company will not of itself cause
the enterprise to fail the test for registration. Similarly, employer financing or
assistance is one matter to be taken into account in determining whether the
association is free of control by the employer—but it will no longer automatically
preclude registration: see s. 20(1B).
Genuine bargaining
The Workplace Relations Amendment (Genuine Bargaining) Act 2002 (Cth) finally
passed into law on 6 December, after a volleying match between the House of
Representatives and the Senate. The Senate refused to accept a proposed subsection 170MW(2A) which would have introduced a requirement that the
Commission take into account attempts at pattern-bargaining in any decision to
suspend a bargaining period for failure to genuinely try to reach an agreement
at the single business level. (‘Pattern-bargaining’ was not mentioned in the confusing and convoluted wording of the proposal, but that appears to have been its
intention.) On the other hand, the House refused to adopt a Senate amendment
that would have introduced an obligation to negotiate in good faith similar to
the obligation now enacted in Western Australia (see above). The government
I N D U S T R I A L L E G I S L AT I O N
IN
2002
159
rejected the ‘good faith’ clause, because of its entrenched position that ‘the
Australian Industrial Relations Commission should not be given a general role
of scrutinising the approach to bargaining taken by the parties’.3 As it stands, the
Workplace Relations Act 1996, s. 170MW(2) empowers the Australian Industrial
Relations Commission to suspend bargaining periods (and so lift protection on
industrial action) where parties are ‘not genuinely trying to reach an agreement’
at the single business level. Where the Commission has exercised this power, it
may now also make orders, under a new s. 170MWA, that the former negotiating parties should not be allowed to initiate a new bargaining period dealing
with the same matters.
A new constitutional foundation?
The Federal government’s frustration at the Senate’s persistent rejection of
much of its reform package has again raised discussion about the feasibility of
a uniform federal industrial relations scheme based on the corporations power
(Constitution s. 51(xx)). If the government pursues this path, it will have to do
so without the benefit of the state powers referred under the Corporations
(Commonwealth Powers) Act 2001 (the Referral Act) passed by each State. This is
the legislation which resulted from the States’ agreement to resolve problems
with the national enforcement of the Corporations Law (now the Corporations
Act 2001 (Cth)) by referring powers under s. 51(xxxvii) of the Constitution.
The Referral Act explicitly limits the matters referred to the Commonwealth to
enacting the Corporations Act in the form agreed, and to amendments to the text
of that legislation alone. Subsection 1(3) of the Referral Act provides that
nothing in the Act enables the Commonwealth to use the reference for the
underlying purpose or object of regulating industrial relations matters. See Ford
Austin and Ramsay (2002: 10) for a full explanation of the Referral Act and its
limitations.
As a first increment in an attempt to introduce uniform national industrial laws,
the government has tabled the Workplace Relations Amendment (Termination of
Employment) Bill 2002. If passed, this would employ the corporations power
to expand coverage of the federal unfair dismissal laws from around 50 to 85
per cent of Australian workers. According to the Minister’s Second Reading
speech, the government’s intention with this legislation would be to cover the
field of unfair dismissal protection, and cause a ‘withering away’ of the state-based
schemes. The Bill also proposes that applications relating to small businesses
should be dealt with by the Commission ‘on the papers’ without any hearing,
ostensibly to save costs. It would also double the qualifying period of employment for applicants (from three to six months) and halve the maximum compensation from six to three months for small business applicants. The Bill was
introduced on 13 November, and referred to a Senate Employment, Workplace
Relations and Education Legislation Committee.
Use of the full strength of s. 109 of the Constitution to override state systems
would still leave a gap in federal coverage. Reliance on the corporations power
means that only incorporated employers would be bound by such a scheme. This
would exclude state government employment, unincorporated small businesses,
160
THE JOURNAL
OF
I N D U S T R I A L R E L AT I O N S
June 2003
and those professional partnerships that do not presently use service companies
to employ staff.
Possibly the size of the excluded pool will diminish over time. Since July 1998,
a company has needed only one shareholder and director (see Corporations Act
ss. 114 and 201A), so sole traders wishing to opt into a federal scheme could
incorporate relatively easily. Outsourcing and privatisation of state government
services has the potential to reduce the size of the state public sector. And
proposals to allow incorporation of professional partnerships may bring those
businesses into a federal net also.
PROTECTING
EMPLOYEE ENTITLEMENTS
Community concern over the fate of employees who lose their jobs and accrued
entitlements when an employer company becomes insolvent has continued to
drive debate on reform of the Corporations Act priorities on insolvency. The Federal
Treasury has called for submissions on a proposal to raise employee entitlements
ahead of secured creditors.
The budgetary burden created by the General Employee Entitlements
Redundancy Scheme (GEERS) is undoubtedly behind this proposal. GEERS was
established to replace the less generous EESS after the Ansett Airlines crisis in
September 2001. According to Senator Joe Ludwig (Senate Hansard, 19 June
2002, p. 2213), more than $20 million was appropriated to meet claims under
GEERS for the 2001–2002 financial year. This represents a huge increase on
(approximately) $3 million which the original scheme–the Employee Entitlements
Support Scheme (EESS) launched after the National Textiles collapse—paid out
in its first year of operation.4
Under the Corporations Act 2001 (Cth) s. 560, the government stands in the
shoes of the employees whose entitlements it pays through GEERS. Presently,
the employees stand in the queue ahead of floating charge holders and unsecured
creditors, but behind lenders with fixed security. So it is not surprising that
the government has floated a proposal that would promote employees’ (and
hence its own) position in the queue for payment from the remains of failed
employer corporations. Whether this proposal survives the enquiry remains
to be seen.
There have also been calls for GEERS (or something like it) to be enacted in
legislation. Presently, the scheme is an administrative arrangement only. Because
it is not supported by legislation, employees’ entitlements to claim from the fund
are not legally enforceable.
Any payments made under GEERS are made without any legal obligation on the
part of the Commonwealth to do so and the Commonwealth reserves to itself the
right to determine in its absolute discretion matters of eligibility and amount of any
payment that it makes under GEERS.5
The rules of the scheme provide that only entitlements derived from a right under
legislation, an award, a statutory industrial agreement (such as a certified agreement or Australian Workplace Agreement) or a written contract of employment
are paid by GEERS. Some employees have been denied payments because the
I N D U S T R I A L L E G I S L AT I O N
IN
2002
161
Department has taken a strict (and arguably too narrow) view of what constitutes
a right under a ‘written’ contract of employment. In the Matter of ACN 050 541
047 Ltd [2002] NSWSC 586 (3 July 2002) reports a case involving employees of
the Australian Quality Council Ltd (AQCL), which administered the Australian
Business Excellence Awards before it failed. The letters of engagement for
AQCL staff had not mentioned any redundancy benefits, however, the company
had consistently maintained a policy of paying three weeks pay for each year of
service when employees were made redundant. This practice was evidenced by
a number of written documents, including minutes of Board meetings, Board
papers, and letters written to employees who had been made redundant. Applying
common law contract reasoning, Austin J. found that this level of redundancy
benefit had been incorporated expressly into staff employment contracts and,
consequently, ordered that the liquidator was contractually obliged to pay
the benefits to the employees. As payments in respect of retrenchment, these
payments took priority according to s. 556(1)(h) of the Corporations Act
2001 (Cth).
GEERS refused to pay these amounts, and also argued that the Commonwealth
should be repaid the amounts it had paid these employees in respect of unpaid
wages and leave entitlements ahead of any payment by the liquidator of
these redundancy benefits. Cases like this have prompted the calls from
employee representatives that a guaranteed right to receive lost entitlements
should be entrenched in legislation.
Another measure designed to assist in a solution to the problem of lost entitlements is the government’s proposal to claw back bonuses paid to directors of
failing companies. The Corporations Amendment (Repayment of Directors’ Bonuses)
Bill 2002 was tabled in October, and referred to the Senate Economics
Legislation Committee, which is due to report back in March 2003.
AROUND
THE STATES
New South Wales
1. Unfair contracts
A small but significant amendment to the Industrial Relations Act 1996 (NSW)
provisions on unfair contracts will reduce the number of claims brought before
the New South Wales Industrial Relations Commission. The Industrial Relations
Amendment (Unfair Contracts) Act 2002 (Act No. 32, assented to on 24 June 2002)
inserted a new s. 108A creating a remuneration cap of $200 000 for people
making claims under s. 106. Remuneration includes not only salary and bonuses,
but all employment benefits, including superannuation contributions and the value
of motor vehicles provided for private use: s. 108A(3). Section 108A(2) extends
the cap to partners in partnerships where the partner’s share of profits exceeds
$200 000.
Many of the most notorious million-dollar claims brought under s. 106 in recent
years—such as Canizales v Microsoft Corporation and Ors (2000) 99 IR 426; [2000]
NSWIRComm 118 (1 September 2000) and Westfield Holdings Ltd v Adams (2002)
114 IR 241; [2001] NSWIRComm 293 (21 December 2001)—would now be
162
THE JOURNAL
OF
I N D U S T R I A L R E L AT I O N S
June 2003
impossible. An early draft of the Bill expressly excluded claims based on share
option schemes, but this provision was omitted in the final Act.
A time limit of 12 months to bring claims has been inserted, and the
Commission is explicitly denied any jurisdiction to accept any application after
the time bar: s. 108B.
An obligation to mitigate has been written into the legislation: s. 106(6). Given
the analysis of the nature of compensation for redundancy explained in Westfield
Holdings v Adams, it is not clear that this proposed section would necessarily
change the way that the Commission deals with post-dismissal earnings. In that
case, a full bench referred to the Termination Change and Redundancy Case (1984)
8 IR 34 at 62 and 73, which held that severance or redundancy payments served
a distinct purpose from payments in lieu of notice. Because notice is given to
allow a dismissed employee time to readjust, proof that the employee has found
new and equally remunerative employment within the notice period will mean
that compensation for lack of reasonable notice should be reduced, or ‘mitigated’.
Severance or retrenchment payments, however, are awarded to compensate for
the ‘loss of non-transferable credits and entitlements built up through length of
service such as sick leave and long service leave, and for inconvenience and hardship imposed by termination through no fault of the employee’ (see paragraph
141). Those losses are not mitigated merely by finding a new position, and should,
therefore, not be subject to any requirement of mitigation. If Westfield is followed,
it is difficult to see that the amendment to 106(6) will have any significant effect
on awards in respect of severance pay.
2. Industrial agents
The vacuum created by declining unionism has created opportunities for professional representatives—other than solicitors—to act on behalf of both
employees and employers in proceedings before the Industrial Relations
Commission. Parliament’s concern that ‘ambulance chasers’ will exploit the industrial relations system—in particular, the unfair dismissal regime—has given rise
to the Industrial Relations Amendment (Industrial Agents) Act 2002 (Act No. 20,
assented to on 12 December 2002). This Act inserts s. 90A, which effectively
requires any ‘industrial agent’ representing any employer or employee in proceedings for compensation under s. 89 of the Act, to take reasonable steps to ensure
that the claim (or response to a claim) has reasonable prospects of success.
‘Industrial agent’ is defined as ‘a person (other than a legal practitioner or an
employee or officer of an industrial organisation) who represents a party in
proceedings before the Commission for fee or other reward’. The agent must
file a certificate with the Industrial Registrar certifying that there are reasonable
grounds for believing that the applicant or respondent has reasonable prospects
of success before proceeding with the claim or response.
If the Commission disagrees that the facts form a reasonable basis for such a
belief, the agent is presumed to have had no such belief, and will bear the onus
of proving that at the time the claim was brought there were ‘provable facts’ to
found the agent’s belief. Agents who are unable to meet this burden of proof risk
suffering a costs order against them (under s. 181). Agents are also obliged (under
I N D U S T R I A L L E G I S L AT I O N
IN
2002
163
s. 181A) to disclose in writing to both the client and the Commission, the basis
on which they calculate their costs. These requirements are similar to the requirements of solicitors to make fee disclosure under the Legal Profession Act 1987
(NSW) s. 175. Like the legal profession requirements under s. 182, a failure to
make a written fee disclosure means that the client has no legal obligation to pay
the fees. Also, like the Legal Profession Act s. 188, the Industrial Relations Act
s. 406A forbids contingency fees (based on a percentage of ‘winnings’). Any
contingency fee arrangement is unenforceable: s. 406A(3).
3. Protection for outworkers in the clothing industry
The Industrial Relations (Ethical Clothing Trades) Act 2001 (NSW) came into force
on 1 February 2002. This Act created an Ethical Clothing Trades Council to
monitor the clothing outworker industry and foster the development of appropriate self-regulatory mechanisms to prevent the exploitation of outworkers.
The Act also enables the Minister to mandate a code of practice if voluntary
self-regulation proves ineffective. The Act also amended the Industrial Relations
Act 1996 (NSW) to facilitate the recovery of unpaid remuneration by outworkers
by allowing service of claims on an ‘apparent’ employer: see s. 127A–G. Section
382 has been amended to strengthen the powers of inspectors to enter residential
premises to check compliance with industrial standards.
4. Public vehicles and carriers
The Industrial Relations Amendment (Public Vehicles and Carriers) Act 2001 came
into effect early in 2002 to extend—beyond its earlier expiry of 13 January 2002—
the exemption of Chapter 6 of the Industrial Relations Act 1996 (NSW) from Part
IV of the Trade Practices Act 1974 (Cth). Without this exemption, the NSW
Industrial Relations Commission’s supervision of contracts of carriage under
Chapter 6 would risk contravention of national competition laws.
5. Workers compensation for workers who cross state boundaries
The Workers Compensation Legislation Amendment Act 2002 dealt with jurisdictional
issues concerning entitlement to, and liability for, premiums for workers
compensation for people who work in more than one state. The Act provides
that where common law actions are brought in respect of a work injury, the choice
of law rule for the claim will be the law of the state in which the statutory
workers’ compensation is payable. Readers interested in this specialised area
are advised to consult the legislation directly for details.
South Australia
As one of its earliest initiatives, the Rann Labor government commissioned a
review of the South Australian Industrial Relations System by former Deputy
President of the Industrial Relations Commission of South Australia, Greg
Stevens. The extensive report (issued in October 2002) makes a list of 233
recommendations—too long for complete digest here. However, some issues
stand out. A number of recommendations would extend the definition of
employee—and allow the Industrial Relations Commission of South Australia
164
THE JOURNAL
OF
I N D U S T R I A L R E L AT I O N S
June 2003
(IRCSA) to ‘deem’ certain classes of workers to be employees—in the interest
of extending protective legislation to the growing numbers of people in ‘precarious’ forms of work (see Owens 2002). Chapter 5 of the report is dedicated
to an analysis of the particular problems faced by contractors (particularly
dependent contractors) and labour hire workers. The recommendations focus
on measures to ensure that these work arrangements are not used to exploit and
oppress workers. Unfair contract review provisions—apparently according to the
New South Wales model—are proposed.
The report clearly favours support of collective mechanisms for setting
working conditions. Similar to the Western Australian approach, the report
recommends the introduction of ‘best endeavours’ obligations (synonymous
with ‘good faith’) in collective bargaining provisions (Stevens 2002: 10). It
proposes the introduction of industry, multi-enterprise and project agreements,
and explicitly recommends against the introduction of individual workplace
agreements. The IRCSA would have discretionary powers to arbitrate in matters
relating to agreements, on the application of one party where the parties own
‘best endeavours’ have failed (Stevens 2002: 19). Agreement-making should be
underpinned by a system of state awards which are not limited to a certain
number of allowable award matters (Stevens 2002: 17).
The report favours the maintenance of ‘a strong, viable state system that
continues to be accessible and user friendly’ (Stevens 2002: 24). And like an
earlier Victorian proposal, it suggests the investigation of the establishment of a
Fair Employment Tribunal to oversee all employment issues.
Chapter 16 supports the adoption and promotion of various International
Labour Organisation conventions, and Chapter 17 is specifically dedicated to child
labour.
The Rann government has committed itself to considering the report and
drafting legislation for discussion in 2003.
Queensland
The Discrimination Law Amendment Act 2002 (Qld) was assented to on
13 December 2002. The Act amends a number of Queensland laws to ensure
that de facto partners, including same-sex partners, enjoy the same rights
and meet the same obligations as married spouses. Of particular relevance for
employment are amendments which would ensure that dismissed workers who
file complaints under the Anti-Discrimination Act 1991 (Qld) are not prevented
for applying under unfair dismissal provisions if their anti-discrimination claim
is dismissed. See Anti-Discrimination Act 1991 (Qld) s. 153.
The Industrial Relations Amendment Act 2002, also assented to on 13 December,
changes the composition of the Queensland Industrial Relations Commission
(QIRC). According to Premier Beattie’s statement in Hansard (Legislative
Assembly, 7 November 2002, p. 4505), this restructure followed the recommendations of the Hawke review of the public sector enterprise bargaining system.
The new structure includes the president, vice-president, and two deputy presidents who will assist the vice-president to assign commissioners to specialist
industry panels, one or more of which will be assigned to deal with public
I N D U S T R I A L L E G I S L AT I O N
IN
2002
165
sector bargaining issues. The Premier’s statement also foreshadowed development of a ‘protocol of good faith bargaining’.
Also on the agenda in Queensland, but not passed at the time of writing, was
the Workplace Health and Safety and Another Act Amendment Bill 2002 (introduced
on 3 December 2002) which would increase penalties and inspection powers under
workplace health and safety legislation.
Tasmania
The Workplace Health and Safety Act 1995 (Tas) was amended from 27 November
2002, by the Workplace Health and Safety Amendment Act 2002 (Tas), Act No. 51
of 2002. The amendments include increased penalties for infringements.
NOTES
1. See the Stevens Report, Review of the South Australian Industrial Relations System October 2002,
Recommendation no. 85, p. 18. The review is available online at http://www.eric.sa.gov.au/
show_page.jsp?id=2552, last consulted 2 January 2003.
2. Section 188 Application for Registration SMQ Enterprise Union (D No. 30007 of 1998), AIRC,
McIntyre VP, Sydney, 27 October 1999, 1269/99 Print S0298.
3. See the Statement issued by the Clerk of the House of Representatives on 16 October
2002, available online at http://search.aph.gov.au/search/ParlInfo.ASP?WCI, last consulted
13 December 2002.
4. This figure was published in the EES Scheme’s One Year Activity Report January 2001 on the
Department of Workplace Relations and Small Business website.
5. See clause 6.7 of the Department of Employment and Workplace Relations document describing
the scheme, cited by Austin J In the matter of ACN 050 541 047 Ltd [2002] NSWSC 586
(3 July 2002), para. 14.
REFERENCES
Deery S, Mitchell R (eds) (1999) Employment Relations: Individualisation and Union Exclusion an
International Study. Leichhardt: Federation Press.
Ford Bill (2002) Faith in Bargaining and Agreements: An Outline of Aspects of the Recent Western
Australian Industrial Reforms. Paper presented at the Australian Labour Law Association
Inaugural National Conference 4–5 October 2002, Melbourne, Australia.
Ford HAJ, Austin RP, Ramsay IM (2002) Supplement to Ford’s Principles of Corporations Law. 10th
edition, Australia: Butterworths.
Owens R (2002) Decent Work for the Contingent Workforce in the New Economy. Paper presented at
the Australian Labour Law Association Inaugural National Conference 4–5 October 2002,
Melbourne, Australia.
Riley J (2001) Industrial Legislation in 2000. Journal of Industrial Relations 43 (2), 148–60.
Riley J (2002) Industrial Legislation in 2001. Journal of Industrial Relations 44 (2), 198-210.
Stevens Greg (2002) Review of the South Australian Industrial Relations System—October 2002. Available
on-line at http://www.eric.sa.gov.au/show_page.jsp?id=2552, last consulted 2 January 2003.