Workplace Relations Amendment (Genuine Bargaining) Act 2002

Administered by Attorney-General's Department

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Workplace Relations Amendment (Genuine Bargaining) Act 2002

 

No. 123, 2002

 

 

 

 

 

An Act to amend the Workplace Relations Act 1996, and for related purposes

 

 

Contents

1 Short title...................................

2 Commencement...............................

3 Schedule(s)..................................

Schedule 1—Bargaining periods

Part 1—Amendments

Workplace Relations Act 1996

Part 2—Application

 

 

Workplace Relations Amendment (Genuine Bargaining) Act 2002

No. 123, 2002

 

 

 

An Act to amend the Workplace Relations Act 1996, and for related purposes

[Assented to 6 December 2002]

The Parliament of Australia enacts:

1  Short title

  This Act may be cited as the Workplace Relations Amendment (Genuine Bargaining) Act 2002.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent

6 December 2002

2.  Schedule 1

A day or days to be fixed by Proclamation, subject to subsection (3)

7 February 2003 (Gazette 2003, No. S 34)

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

 (2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.

 (3) If a provision covered by item 2 of the table does not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

3  Schedule(s)

  Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


Schedule 1—Bargaining periods

Part 1—Amendments

Workplace Relations Act 1996

1A  Subsection 170MI(1) (note)

Omit “170MW(10)”, substitute “170MW(9A) and (10)”.

1AA  After subsection 170MW(2)

Insert:

Note: The issue of whether or not a negotiating party is genuinely trying to reach agreement with the other negotiating parties was considered by Justice Munro in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Print T1982.

2A  After subsection 170MW(8)

Insert:

 (8A) An application may be made to the Commission for an order under this section for the suspension or termination of whatever bargaining periods apply to:

 (a) a specified business, or any part of that business; or

 (b) a specified part of a specified business;

without specifically identifying the bargaining periods. The application has effect as if it were an application for the suspension or termination of the bargaining period, or each of the bargaining periods, that applies to the specified business (or any part of it), or to the specified part of the business, as the case requires.

Note: The other requirements of this section must still be complied with in relation to the application.

 (8B) If subsection (8A) applies to an application, the Commission must satisfy itself as to which bargaining periods the application has effect in relation to.

2B  After subsection 170MW(9)

Insert:

 (9A) An order under subsection (1) suspending the bargaining period may, if the Commission considers it to be in the public interest, contain a declaration that, during some or all of the period while the suspension has effect, a specified negotiating party or employee of the employer:

 (a) is not allowed to initiate a new bargaining period in relation to specified matters that are dealt with by the proposed agreement; or

 (b) may initiate such a bargaining period only on conditions specified in the declaration.

2  After section 170MW

Insert:

170MWA  Power of Commission in relation to new bargaining periods

 (1) This section applies if a bargaining period (the former bargaining period) in relation to a proposed agreement has ended because a negotiating party (the former negotiating party) has given a notice under paragraph 170MV(b).

 (2) Subject to this section, the Commission may, by order, declare that, during a specified period, a specified former negotiating party or employee of the employer:

 (a) is not allowed to initiate a new bargaining period in relation to specified matters that were dealt with by the proposed agreement; or

 (b) may initiate such a bargaining period only on conditions specified in the order.

 (3) The Commission must not make an order under subsection (2) unless:

 (a) the Commission has given the former negotiating parties an opportunity to be heard; and

 (b) the Commission considers that it is in the public interest to make the order.

 (4) The Commission may make an order under subsection (2):

 (a) on application by a former negotiating party; and

 (b) if, assuming the former bargaining period had not ended, the Commission could make an order under subsection 170MW(1) because a circumstance set out in subsection 170MW(2), (4), (5), (6) or (7) exists or existed.

 (5) The Commission may make an order under subsection (2):

 (a) on its own initiative, or on application by a former negotiating party; and

 (b) if, assuming the former bargaining period had not ended, the Commission could make an order under subsection 170MW(1) because a circumstance set out in subsection 170MW(3) exists or existed.


Part 2—Application

3A  Application of items 1A, 2A and 2B

The amendments made by items 1A, 2A and 2B apply in relation to a bargaining period that began before, at or after the commencement of those items, even if proceedings for the suspension or termination of the bargaining period were started (but not determined) before that commencement.

3  Application of item 1

The amendment made by item 1 applies in relation to a bargaining period that began before, at or after the commencement of that item.

4  Application of item 2

The amendment made by item 2 applies in relation to a bargaining period that ended before, at or after the commencement of that item.

 

 

 

 

[Minister’s second reading speech made in—

House of Representatives on 20 February 2002

Senate on 20 August 2002]

 

(44/02)


 

Overview

The Workplace Relations Amendment (Genuine Bargaining) Act 2002 was enacted by the Parliament of Australia with the primary objective of amending the Workplace Relations Act 1996 to address concerns around genuine bargaining in workplace negotiations. This legislation was introduced to ensure that negotiations are conducted in good faith, aiming to prevent any party from abusing the bargaining process. The Act received Royal Assent on 6 December 2002 and various provisions commenced on different dates, with the most significant changes taking effect from 7 February 2003. The Act seeks to strengthen the mechanisms for the suspension and termination of bargaining periods, allowing the Australian Industrial Relations Commission to intervene when it is in the public interest to do so, particularly when there is evidence of bad faith or strategic behaviour by negotiating parties. The Workplace Relations Amendment (Genuine Bargaining) Act 2002 targets the gap in the existing legislation that allowed for potential misuse of the bargaining process, which could lead to prolonged disputes and inefficiencies in the workplace. By providing the Commission with more robust tools to manage and oversee bargaining periods, the Act aims to promote fairer and more productive industrial relations practices. The amendments introduced by this Act are designed to be applied retrospectively to ongoing bargaining periods, ensuring that they cover situations both before and after the Act's commencement. This legislative effort reflects a commitment to fostering genuine and effective bargaining practices in Australian workplaces.

Scope and Application

The Workplace Relations Amendment (Genuine Bargaining) Act 2002 amends the Workplace Relations Act 1996 to introduce provisions aimed at ensuring genuine bargaining in workplace negotiations. This Act applies to the Commonwealth of Australia and its territories, impacting employers, employees, and unions involved in workplace negotiations and agreements. It specifically targets bargaining periods and the conduct of negotiating parties to promote genuine efforts in reaching agreements. The Act came into effect on 6 December 2002, with certain provisions commencing on 7 February 2003. The Act allows for the suspension or termination of bargaining periods and imposes conditions on the initiation of new bargaining periods by former negotiating parties, ensuring that genuine efforts to reach agreements are maintained. The Fair Work Commission has the authority to make orders under this Act, which can be applied retrospectively to bargaining periods that commenced before, at, or after the commencement of the amendments. This Act does not specify any exclusions, exemptions, or thresholds, but its application can be further detailed through subordinate instruments.

Key Provisions

The Workplace Relations Amendment (Genuine Bargaining) Act 2002 amends the Workplace Relations Act 1996 to introduce new provisions around bargaining periods and the authority of the Australian Industrial Relations Commission (AIRC). Section 1A amends the definition of "bargaining period" by omitting subsection 170MW(10) and substituting it with "170MW(9A) and (10)" in the Workplace Relations Act 1996. Section 1AA inserts a new subsection 170MW(2) that references the case Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Print T1982, which considered the issue of genuine bargaining. Section 2A introduces a new subsection 170MW(8A) which allows for the suspension or termination of a bargaining period without specifying the exact periods, subject to the Commission's satisfaction. Section 2B adds a new subsection 170MW(9A) that permits the Commission to declare conditions under which a former negotiating party may initiate a new bargaining period. The Act imposes specific obligations on parties involved in bargaining periods. The AIRC must ensure that applications for suspension or termination of bargaining periods are handled appropriately, as outlined in sections 2A and 2B. It must also provide former negotiating parties with an opportunity to be heard and consider whether it is in the public interest to make an order under subsection 170MW(2), as detailed in sections 2A(4) and 2B(3). Furthermore, the AIRC can only make such orders if the conditions specified in subsections 170MW(2), (4), (5), (6), or (7) are met. Breaches of the provisions under this Act may lead to various penalties and consequences. The Act does not explicitly detail specific offences or penalties within the provided text; however, given the nature of workplace relations legislation, breaches could potentially result in civil or criminal penalties. The precise penalties would depend on the specific breach and could include fines or other sanctions as determined by relevant authorities under applicable laws. The maximum penalties are not explicitly stated within the provided excerpt, but they would typically be determined by the courts based on the severity and nature of the breach.

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