EXPLANATORY STATEMENT
Select Legislative Instrument No. 95, 2014
Issued by the authority of the Minister for Employment
Subject – Fair Work Act 2009
Fair Work Amendment (Protected Industrial Action) Regulation 2014
The Fair Work Act 2009 (the Act) establishes a process upon which the Fair Work Commission may suspend or terminate protected industrial action that is organised, or engaged in, in relation to a proposed enterprise agreement.
Subsection 424(1) of the Act provides that the Fair Work Commission must make an order to suspend or terminate protected industrial action that is being engaged in, or is threatened, impending or probable, if it is satisfied that the protected industrial action has threatened, is threatening or would threaten to endanger the life, the personal safety or health, or the welfare, of the population or part of it, or to cause significant damage to the Australian economy or an important part of it.
Subsection 424(2) of the Act provides that the Fair Work Commission may make the order to suspend or terminate protected industrial action on its own initiative or on application by a bargaining representative for the proposed agreement, the Minister, or the workplace relations Minister of a referring State or of a Territory if the industrial action is being engaged in, or is threatened, impending or probable in that State or Territory.
Subsection 424(2) of the Act does not currently enable a Minister responsible for workplace relations matters in a State that is not a referring State as defined in section 30B or 30L of the Act to make an application to the Fair Work Commission to suspend or terminate protected industrial action. Unlike applications to suspend protected industrial action under section 426 (which does not apply in relation to threatened protected industrial action), subsection 424(2) also does not enable applications from third parties that are directly affected by protected industrial action for a proposed enterprise agreement.
The Fair Work Amendment (Protected Industrial Action) Regulation 2014 (the Amending Regulation) prescribes for the purpose of subparagraph 424(2)(b)(iii) of the Act the Minister responsible for workplace relations matters in a State that is not referring State as defined in section 30B or 30L of the Act if the industrial action is being engaged in, threatened, impending or probable in that State. The Amending Regulation also prescribes a person directly affected, or who would be directly affected by the industrial action other than an employee who will be covered by the agreement.
The Amending Regulation does not affect the existing framework for the organising or taking of protected industrial action, nor does it amend the current threshold for the suspension or termination of protected industrial action under the Act.
The Government consulted with the States and Territories under the Intergovernmental Agreement for a National Workplace Relations System for the Private Sector.
A Statement of Compatibility with Human Rights has been completed for the Amending Regulation, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement’s assessment is that the Amending Regulation is compatible with human rights. A copy of the Statement is attached.
The Act does not impose any conditions that need to be satisfied before the power to make the Amending Regulation may be exercised.
The Amending Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Office of Best Practice Regulation advised that a Regulation Impact Statement was not required (reference 17044).
The Amending Regulation commences the day after it is registered on the Federal Register of Legislative Instruments.
ATTACHMENT
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Fair Work Amendment (Protected Industrial Action) Regulation 2014
This Regulation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Regulation
The object of the Fair Work Act 2009 (the Act) is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians.
Part 3-3 of the Act deals with industrial action and relevantly, establishes a process upon which the Fair Work Commission may suspend or terminate protected industrial action that is organised, or engaged in, in relation to a proposed enterprise agreement.
Subsection 424(1) of the Act provides that the Fair Work Commission must make an order to suspend or terminate protected industrial action that is being engaged in, or is threatened, impending or probable, if it is satisfied that the protected industrial action has threatened, is threatening or would threaten to endanger the life, the personal safety or health, or the welfare, of the population or part of it, or to cause significant damage to the Australian economy or an important part of it.
Subsection 424(2) of the Act provides that the Fair Work Commission may make the order to suspend or terminate protected industrial action on its own initiative or on application by a bargaining representative for the proposed agreement, the Minister, or the Minister of a referring State or Territory if the industrial action is being engaged in, or is threatened, impending or probable in that State or Territory.
Subsection 424(2) of the Act does not currently enable a Minister responsible for workplace relations matters in a State that is not a referring State as defined in section 30B or 30L of the Act to make an application to the Fair Work Commission to suspend or terminate protected industrial action. Unlike applications to suspend protected industrial action under section 426 (which does not apply in relation to threatened protected industrial action), subsection 424(2) also does not enable applications from third parties that are directly affected by protected industrial action for a proposed enterprise agreement.
The Fair Work Amendment (Protected Industrial Action) Regulation 2014 (the Amending Regulation) prescribes for the purpose of subparagraph 424(2)(b)(iii) of the Act the Minister responsible for workplace relations matters in a State that is not referring State as defined in section 30B or 30L of the Act if the industrial action is being engaged in, threatened, impending or probable in that State. The Amending Regulation also prescribes a person directly affected, or who would be directly affected by the industrial action other than an employee who will be covered by the agreement.
Human rights implications
The Amending Regulation engages Article 22 of the International Covenant on Civil and Political Rights (ICCPR) and Article 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Article 22 of the ICCPR protects the right to freedom of association, including the right to form and join trade unions. Article 8(1) of the ICESCR supports this by providing that State Parties to that Covenant undertake to ensure the right of everyone to form trade unions and join the trade union of his or her choice, and not place restriction on the exercise of this right.
Article 8 also protects the right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society. Finally, Article 8 protects the right to strike, provided it is exercised in conformity with the laws of the particular country.
The right of employees to take protected industrial action to support or advance claims for an enterprise agreement is provided for under Part 3-3 of the Act, with its emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action (paragraph 3(f) of the Act).
Under the Act, employees can take protected industrial action to support or advance claims for an enterprise agreement (employee claim action) and are immune from civil liability in relation to such action, unless the action involves personal injury or damage or the destruction or taking of property. Employers can similarly take protected industrial action in response to employee claim action (employer response action).
Division 6 of Part 3-3 of the Act provides that the Fair Work Commission may make orders to suspend or terminate protected industrial action organised, or engaged in, in relation to a proposed enterprise agreement on certain specified grounds. If the Fair Work Commission makes such an order, protected industrial action can no longer be taken in relation to the proposed enterprise agreement.
Section 424 of the Act provides that the Fair Work Commission must make an order to suspend or terminate protected industrial action that is being engaged in or is threatened, impending or probable, if it is satisfied that the protected industrial action has threatened, is threatening or would threaten to endanger the life, the personal safety or health, or the welfare of the population or part of it, or to cause significant damage to the Australian economy or an important part of it. Subsection 424(2) of the Act provides that the Fair Work Commission may make an order on its own initiative, on application by specified persons, or a person prescribed by the regulations.
The Amending Regulation expands the class of persons who may apply to the Fair Work Commission under section 424 to prescribe the Minister responsible for workplace relations matters in a State that is not referring State as defined in section 30B or 30L of the Act if the industrial action is being engaged in, threatened, impending or probable in that State. This regulation is intended to mirror the existing position in subparagraph 424(2)(b)(iia) in respect of a Minister in a State that is a referring State as defined in section 30B or 30L of the Act and who has responsibility for workplace relations matters.
The Amending Regulation also prescribes a person directly affected, or who would be directly affected by the industrial action other than an employee who will be covered by the agreement. This regulation would similarly reflect, as far as possible, the existing position in respect of affected third party applications under subsection 426(6) of the Act.
The Amending Regulation facilitates access to the making of an application under section 424 of the Act.
The Amending Regulation does not affect the existing framework for the organising or taking of protected industrial action, nor does it amend the current threshold for the suspension or termination of protected industrial action under the Act.
Conclusion
The amendment is considered compatible with the right to strike. To the extent that the amendment may limit rights, those limitations are reasonable, necessary and proportionate.
Senator the Hon. Eric Abetz, Minister for Employment