A Bill for an Act to amend the Fair Work Act 2009, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Fair Work (Job Security and Fairer Bargaining) Amendment Act 2012.
2 Commencement
This Act commences on the day after this Act receives the Royal Assent.
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Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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—Amendments
Fair Work Act 2009
1 At the end of section 3
Add:
; and (h) providing workplace relations laws that enhance job security; and
(i) promoting full employment in Australia; and
(j) helping working Australians to achieve a better work/life balance.
2 After paragraph 172(1)(b)
Insert:
(ba) matters pertaining to the job security of the employees who will be covered by the agreement;
(bb) matters pertaining to the workloads of the employees who will be covered by the agreement;
3 Paragraph 186(6)(a)
After “disputes”, insert “by conciliation”.
4 After paragraph 186(6)(a)
Insert:
(ab) that provides for FWA to arbitrate disputes covered by paragraph (a) that have not been settled; and
5 At the end of paragraph 266(1)(c)
Add “and”.
6 After paragraph 266(1)(c)
Insert:
(d) the Minister has made all reasonable efforts to assist in settling those matters;
7 After paragraph 275(g)
Insert:
(ga) the job security of the employees who will be covered by the agreement;
(gb) the workloads of the employees who will be covered by the agreement;
8 Subsection 414(5)
After “engages”, insert “, or changes normal operations for the purposes of engaging,”.
9 After subsection 414(5)
Insert:
(5A) The period of notice for the purposes of paragraph (5)(a) must be at least 3 working days.
10 Subsection 423(1)
Omit “if”, substitute “to the extent that”.
11 After subsection 423(6)
Insert:
Requirement—permitted matters capable of settlement
(6A) For an order terminating protected industrial action, FWA must be satisfied that:
(a) terms to deal with all the permitted matters at issue during bargaining for the proposed enterprise agreement could be included in an industrial action related workplace determination; or
(b) all the bargaining representatives for the proposed enterprise agreement have agreed to settle all the permitted matters at issue during bargaining for the proposed enterprise agreement by another means by which a binding settlement of those matters might be achieved.
Example: For paragraph (b), the bargaining representatives might have agreed to conciliation by FWA and to the inclusion in the proposed enterprise agreement of any terms recommended by FWA to settle the permitted matters at issue.
(6B) For an order suspending protected industrial action, FWA must be satisfied, in relation to any permitted matters at issue during bargaining for the proposed enterprise agreement that cannot be dealt with by including terms in an industrial action related workplace determination, that:
(a) there is a means by which a binding settlement of those matters might be achieved (if all of the bargaining representatives for the proposed enterprise agreement agreed to settle those matters by that means); and
(b) if the protected industrial action is employee claim action or employee response action—the bargaining representatives of the employee or employees who are engaging in the industrial action have not agreed to settle all of those matters by that means; and
(c) if the protected industrial action is employer response action—the bargaining representatives of the employer or employers who are engaging in the industrial action have not agreed to settle all of those matters by that means.
12 Subsection 424(1)
After “FWA must”, insert “(subject to subsections (1A) and (1B))”.
13 Subsection 424(1)
Omit “if”, substitute “to the extent that”.
14 After subsection 424(1)
Insert:
(1A) FWA must not make an order terminating industrial action of a kind mentioned in subsection (1) unless FWA is satisfied that:
(a) terms to deal with all the permitted matters at issue during bargaining for the proposed enterprise agreement could be included in an industrial action related workplace determination; or
(b) all the bargaining representatives for the proposed enterprise agreement have agreed to settle all the permitted matters at issue during bargaining for the proposed enterprise agreement by another means by which a binding settlement of those matters might be achieved.
Example: For paragraph (b), the bargaining representatives might have agreed to conciliation by FWA and to the inclusion in the proposed enterprise agreement of any terms recommended by FWA to settle the permitted matters at issue.
(1B) FWA must not make an order suspending industrial action of a kind mentioned in subsection (1) unless FWA is satisfied, in relation to any permitted matters at issue during bargaining for the proposed enterprise agreement that cannot be dealt with by including terms in an industrial action related workplace determination, that:
(a) there is a means by which a binding settlement of those matters might be achieved (if all of the bargaining representatives for the proposed enterprise agreement agreed to settle those matters by that means); and
(b) if the protected industrial action is employee claim action or employee response action—the bargaining representatives of the employee or employees who are engaging in the industrial action have not agreed to settle all of those matters by that means; and
(c) if the protected industrial action is employer response action—the bargaining representatives of the employer or employers who are engaging in the industrial action have not agreed to settle all of those matters by that means.
15 After section 424
Insert:
424A When FWA must not terminate industrial action
Despite subsections 423(1) and 424(1), FWA must not make an order terminating protected industrial action if either or both of the following apply in relation to any employer response action concerned:
(a) a purpose of the action is to make any application under section 423 or 424 more likely to succeed;
(b) the action is not a proportionate response in the circumstances.
16 After paragraph 426(5)(a)
Insert:
(ab) in the case of employer response action—whether the industrial action is being engaged in for the purposes of making any application more likely to succeed;
17 After subsection 431(1)
Insert:
(1A) However, the Minister must not make the declaration unless he or she is satisfied that:
(a) terms to deal with all the permitted matters at issue during bargaining for the proposed enterprise agreement could be included in an industrial action related workplace determination; or
(b) all the bargaining representatives for the proposed enterprise agreement have agreed to settle all the permitted matters at issue during bargaining for the proposed enterprise agreement by another means by which a binding settlement of those matters might be achieved.
Example: For paragraph (b), the bargaining representatives might have agreed to conciliation by FWA and to the inclusion in the proposed enterprise agreement of any terms recommended by FWA to settle the permitted matters at issue.