Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2000 (Bills Digest 18 2000-01)

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Bills Digest No. 18 2000-01
Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2000

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2000

Date Introduced: 26 June 2000

House: House of Representatives

Portfolio: Employment, Workplace Relations and Small Business

Commencement: On or within 6 months of the Bill receiving Royal Assent

Purpose

This Bill introduces a postal (or similar) ballot process for the purpose of accessing protected industrial action for both members of an employee organisation (union) or a group of unrepresented employees in a workplace who are negotiating a federal certified agreement. Thus the provisions will not apply to award negotiations nor to Australian Workplace Agreement negotiations. Nor will it apply to employers, for example to the shareholders of companies which initiate industrial action against their employees.

Two streams of employees are envisaged to be able to access the provisions. Where the application is by a union, only union members will be able to vote. Where application for a ballot is by a group of employees in a workplace, all eligible employees will be entitled to vote. In such a ballot 50 per cent at least must vote and more than 50 per cent must approve the ballot to take industrial action against the employer.

The ballot paper will advise them that they are not bound to take any industrial action even if they have voted for it. Without such a ballot, protected industrial action will no longer be authorised by the Australian Industrial Relations Commission (the Commission). Application for protected action can only be accessed during a defined bargaining period.

The stated justification for these new procedures is that they will ensure that those who take the action have made the decision. There is no provision requiring a ballot to lift or cease protected industrial action.

Background

Proposals to determine access to protected industrial action by union members or by a group of employees in a workplace by way of a ballot were contained in the Workplace Relations Legislation Amendment (More Jobs Better Pay) Bill 1999 in Schedule 12. This Bill passed the House of Representatives on 29 September. It was introduced into the Senate on 14 October 1999.⁽¹⁾ The Senate Employment Workplace Relations Small Business and Education Legislation Committee reported on the Bill on 29 November 1999. The 'More Jobs Better Pay' Bill has not passed the Senate. It would amend the Workplace Relations Act 1996 (WR Act). Schedule 12 proposed:

A new Division 8A (Part VIB) which would require protected action ballots to be held before unions or employees can engage in protected action. The responsibility for seeking an order for such ballots would be on the union or employees involved, as would the liability for the cost of such ballots. Partial costs for the ballot would be reimbursed
A union or employees could apply to the Commission for an order that a 'protected action ballot' be held
Where employees wish to initiate a bargaining period or apply for a protected action ballot order, they may do so through an agent, and their identity would be protected
The Commission would be responsible for deciding whether a ballot should be held. The Commission would not be able to order a ballot unless a bargaining period was in place, and the applicant had been genuinely negotiating to reach an agreement
Where a union makes an application for a ballot, only union members whose employment would be covered by the proposed agreement would be entitled to vote in the ballot. If employees who are seeking a non-union agreement make the application, all employees whose employment would be covered by the proposed agreement would be entitled to vote in a ballot. In either case, employees who are party to an Australian Workplace Agreement or state employment agreement whose nominal expiry date has not passed would not be eligible to vote
Procedural requirements for ballots, including specific information would be required to be provided to employees in ballot papers
Industrial action would be authorised by a ballot if at least 50 per cent of eligible voters participate in the ballot, and if more than 50 per cent of the votes cast are in favour of the proposed industrial action, and
The Commission's powers to order a ballot in relation to threatened impending or probable industrial action [subsections 135(2) and 135(2B)], and on request from union members [subsections 136(1) - (7) and 135(8B) - (10)] would be removed. In addition, the Commission would be prevented from ordering a secret ballot of union members who are in a bargaining period. The Commission could not order a ballot on its own initiative.

Senate Report on the Workplace Relations Legislation Amendment (More Jobs Better Pay) Bill 1999 (secret ballot provisions)

The Senate Employment Workplace Relations Small Business and Education Committee considered this Bill in a report in November 1999⁽²⁾. The Bill was not supported by all parties in the Senate and remains listed on the Senate's Daily Bills List. Among many other changes, the Bill also sought to prohibit 'pattern bargaining' by denying protected industrial action in circumstances where a similar claim was mirrored across many workplaces and to ensure speedy access to orders to stop industrial action (WR Act section 127).

The key secret ballot proposals of the 'More Jobs Better Pay' Bill have been outlined above. Concerns over the secret ballot provisions raised by Labor Senators canvassed the following:⁽³⁾

the requirement that 50 per cent of eligible employees must vote and where a non-union certified agreement was under negotiation all employees covered by the agreement would be required to vote. Traditionally, it has been difficult even in union ballots to get this level of support
the obligations were one sided and no similar restrictions were placed on employers
the requirements to be forwarded in a ballot application would include detail on the precise nature, timing and duration of the proposed industrial action. This weakens bargaining power
the proposals would make the taking of protected industrial action more difficult, more time consuming and more costly for employees to exercise their legal right to strike, and a six week duration between making an application to ascertaining the result of the ballot was likely, and
having proposed a course of action outlined in a ballot, employees would be locked into taking that course despite the possibility that circumstances may have changed significantly in the meantime.

Government members of the Committee considered the views of employers and of the Department of Employment, Workplace Relations and Small Business (DERWSB) submission that a secret ballot would allow the employees directly involved to make the decision on whether or not action should be taken. Government members also considered contrary views which considered the supply of detailed information about pending industrial action, as well as views on similar laws in force in Western Australia. There, the Western Australian Trades and Labour Council indicated that despite secret ballot legislation being available for three years, no party had sought to use them and the provisions are, in the TLC's view, largely inoperable.⁽⁴⁾

The Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2000 re-introduces Schedule 12 of the 'More Jobs Better Pay' Bill in substantially the same format, but with some amendments (see Main Provisions). It is likely however that the Bill will be subject to similar criticisms.

Applications for protected action

There were almost 4 300 applications for a bargaining period under the federal jurisdiction in 1996/97, 6 613 in 1997/98 and 5 779 in 1998/99.⁽⁵⁾ It is presumed that the bulk of these applications were by unions rather than employers or non-represented employees.

Access to protected bargaining is apparently rare for non-union employees and while the current procedures for non-unionists to access protected industrial action appear rather straightforward, they are currently the subject of litigation. Ms Julie-Anne Houlton representing oil and gas workers from the North-West Shelf gas project has filed an application in the Federal Court in June 2000 seeking to establish the rights of non-union workers to take protected industrial action. Representing the bargaining agent, the application seeks to establish that the workers have acted according to sections 170MI(3) and 170MJ in properly initiating a bargaining period:

If we are successful we will create the first non-union bargaining period in the country ... if we fail, then it shows that the legislation is unworkable.⁽⁶⁾

The Government elsewhere has suggested that minimal access to protected industrial action is reason for withdrawal of the provision allowing employers and employees access to 'limited liability' in the case of negotiating an AWA.⁽⁷⁾ The Government does not apply the same criterion of 'rarely used' in relation to non-union bargaining over certified agreements.

The rules of organisations and ballots

Legal status accrues to associations of employers and of employees when these bodies are granted registration under the WR Act. Both forms of associations are then referred to as registered organisations. As at July 2000, the Australian Industrial Registry contains 82 registered organisations of employers and 45 registered organisations of employees or unions.⁽⁸⁾

The conduct, structure and operation of registered organisations is determined by the constitution, objects and rules of the organisation. However rules can be prescribed under the federal Act.

Under the WR Act, the rules of registered organisations (of employers and employees/unions) can be enforced only if they have complied with the Act's provisions.

The general requirements as to what the rules must address are set out in WR Act sections 195 and 196, although there are numerous legislative provisions governing the operation of registered organisations beyond these, in Part IX. Federal legislation thus extensively regulates the internal affairs of trade unions. Writing in the 1970s, Professor Di Yerbury observed that these legislative duties of federally registered unions are 'detailed and stringent⁽⁹⁾', and Dr Don Rawson observed that Australian unions are 'regulated by law to an extent unknown in any comparable country'.⁽¹⁰⁾

These more onerous obligations (by international standards) of federally registered unions have been, in the past, justified on the basis of the 'advantages' won through registration. For example the advantage accruing to a 'traditional' union (not one registered as an enterprise union post 1996) of obtaining federal award coverage for its members. As a quid pro quo for gaining these advantages federal organisations must ensure that their rules and behaviour corresponds with the norms prescribed. For example, a union rule which allowed the holding of an office without recourse to any ballot is very likely to be vitiated under the WR Act.

It might be appreciated that resort to industrial action, either by employers through the use of lock-outs, or unions through the use of strikes, was never condoned or sanctioned under federal industrial legislation until the 1990s, notably under the Industrial Relations Reform Act 1993. The price of federal award coverage has traditionally been seen to mean compliance by the relevant union in respect of the protocols (and law) concerning the taking of industrial action, by observing good conduct.

Industrial disputes were to be notified firstly for conciliation and later arbitration if conciliation failed through the formal system (WR Act section 99). Accordingly the rules of registered organisations (employers and employees) were required to contain the processes by which the organisation notified an industrial dispute to the Commission [WR Act section 195(1)(b)(vi)]. However the expansion of enterprise bargaining over the 1990s has significantly changes the rules of the game. There has been a conditional acceptance of governments that enterprise bargaining (collective bargaining) requires resort to industrial action both by employers and by employees, usually through their union. It thus helps to outline the attitudes of political parties to ballots, particularly ballots concerning decisions to take industrial action.

In industrial relations parlance, the use of a secret ballot most often applies either in respect of union members and industrial action; or in the context of an election for official positions within the organisation. Implementation of union policy through a ballot process is common, as are ballots of employer members of a registered employer organisation for some of the administration.

Political parties and industrial ballots

The Conciliation and Arbitration Act 1904, the Industrial Relations Act 1988 and the WR Act (sections 135, 136) have had provisions allowing the Commission to conduct a ballot of those involved in industrial action for the purpose of ascertaining their views as whether the action should continue. The intention behind the initial provision has been explained by Professor Foenander:

There is a ... provision of some significance in the Act that enables the Court to intervene in the internal affairs of a registered organisation. It may happen the executive of an organisation, although observing the in detail all the rules of the organisation, is acting in a manner, or pursuing a course that fails to command the real sympathy or support of a majority of the members ... the Court may have reason to believe that (a) stoppage of work was not or no longer is, a correct reflection of the opinion or the feeling of the general body of members.⁽¹¹⁾

Ballots have also been of interest to governments in respect of the control of unions. Dr Rawson noted that an early form of government intervention in the conduct of union elections (ie for positions of officials) was introduced as an anti-communist measure under the Chifley Government in 1947. This allowed union administrations to apply for 'Court-controlled ballots', ordered by the Australian Industrial Registrar but usually conducted by the Australian Electoral Office.⁽¹²⁾ As well, the Commonwealth Court of Conciliation and Arbitration was able to order an election ballot if it believed the union ballot had not been properly conducted. Rawson also notes that in 1951 the Menzies Government introduced provisions allowing members to seek a controlled ballot through a petition without having to prove any impropriety by the union in the conduct of its election.⁽¹³⁾

The concern for democracy (at least within a union) hinges on the fact that a registered organisation of employees (union) is a voluntary association of individuals (members). As such, workplace decisions to take industrial action, or perhaps more likely, procedures for convening meetings of members should be prescribed for the in the rules of unions. Federal unions are required by law to be democratic.⁽¹⁴⁾ This allows the membership to determine procedures of the union and have rules made or amended accordingly.

Professor Ed Davis has observed that the issue of secret ballots, industrial action and the undue influence of union leaders was given prominence by the Liberal Party during the term of the Whitlam Government:

The Liberal Party had indicated considerable concern with union power and union democracy before it achieved government in late 1975. In its manifesto Employment and Industrial Relations, the party declared that it would enact legislation to promote secret ballots under Commonwealth Electoral Office supervision for the election of officers to executive positions ... unions were believed to be led by irresponsible and unrepresentative people. Government legislation requiring secret ballots would give the moderate majority its chance to unseat the radicals and replace them with more representative leadership.⁽¹⁵⁾

The Hon John Howard MP revealed a key new aspect of the 1988 industrial relations policy in a parliamentary address concerning secret ballots. The policy reflected similar concerns to those expressed in the 1970s:

Our new industrial relations policy provides a more flexible framework for industrial relations at the enterprise level. Our policy promotes voluntary enterprise level agreements between workers and their employers. These agreements will be available to enterprises of any size and could cover work practices, introduction of new technology and management methods and other ways to improve enterprise productivity and profitability. We will also act to protect the rights of the individual in the workplace; we will outlaw closed shops and abolish the power to grant preference to trade union members. We will enact compulsory secret ballots before strike action to ensure that workers are not intimidated by union bosses into unnecessary strikes (emphasis added).⁽¹⁶⁾

It can be seen that concern with the undue influence of union bosses had carried over from an early concern with elections for union positions to decisions to take industrial action.

The Coalition's Jobsback policy (1992) envisaged that employer-employee relationships operating under a voluntary workplace agreement would vitiate any need for the Commission to use its traditional power to conduct a ballot pertaining to industrial action.⁽¹⁷⁾ However a commitment was made there to review secret ballot legislation under the award stream.

The 1996 Coalition policy Better Pay for Better Work did address the right to strike in the negotiation of Australian Workplace Agreements and Certified Agreements but did not specifically address a role for secret ballots prior to taking protected industrial action.⁽¹⁸⁾

In between these policy proposals, the Industrial Relations Reform Act 1993 (IRR Act) had introduced two forms of protection where union members were involved in industrial action. Protected industrial action for unions (strikes) and employers (lockouts) was explicitly recognised where the parties were negotiating a certified agreement.⁽¹⁹⁾ These provisions have been retained to the present. Thus notification to the Commission by either party of any forthcoming protected industrial action regarding a process of bargaining has been in practice since 1994. In addition, the IRR Act prevented dismissal of an individual employee due to the employee's involvement or non-involvement in industrial action amongst other 'freedom of association' criteria.⁽²⁰⁾ Thus concerns about possible coercion were addressed. The WR Act has enhanced protections against being forced to take industrial action under the freedom of association provisions.

The Government introduced the Workplace Relations and Other Legislation Amendment Bill in May 1996. The Bill retained provisions concerning protected industrial action. After a Senate Committee inquiry into the Bill and following an agreement with the Australian Democrats, an amendment to the Bill was made by the Government concerning enterprise bargaining, industrial action and secret ballots. The current process for accessing protected industrial action occurs under the following steps:

Initiation of a bargaining period (section 170MI)
The giving of three days' notice about the nature of the intended action and the day when it will begin (section 170MO)
Genuinely trying to reach agreement before any action is taken (section 170MP)
The Commission able to order a secret ballot during the process of enterprise bargaining (section 170MQ & section 135(2B) to stop the protected industrial action
Where action is being taken by union members, the action has been duly authorised (section 170MR)

However this scheme of access to protected industrial action was again addressed in the Coalition's 1998 workplace relations policy More Jobs, Better Pay. There the relatively new limited right to strike was recognised:

... Secret ballots of workers can provide a fair, effective and democratic process for determining whether a group of employees at a workplace genuinely supports taking industrial action.

To achieve this, a Coalition Government will:

- Introduce a requirement that protected industrial action cannot commence until the employees affected have had the right to express their wishes to undertake such action by way of a secret ballot;

- Require a majority of voters by secret ballot to endorse specific action (notified in advance) before it is protected by law.⁽²¹⁾

The Ministerial Discussion Paper Pre-industrial action secret ballots crystallised the view that secret ballots should become a pre-requisite for accessing protected industrial action, and that these ballots should not be used for sanctioning or appearing to sanction unlawful industrial action.⁽²²⁾

Additional information on the secret ballot proposal can be gleaned from The Continuing Reform of Workplace Relations: Implementation of More Jobs, Better Pay (May 1999). There it appeared that the Commission was to oversee the ballot, that attendance ballots might be countenanced in special circumstances and ballot applications could be granted for either union members or employees in a workplace.

Protected action will be preceded by a secret ballot process overseen by the AIRC. Ballots will normally be conducted by post, although applications may be made for attendance ballots in appropriate circumstances. An application for a secret ballot will only be able to be made during a bargaining period and will be required to include a range of information, such as the proposed certified agreement to which a secret ballot relates, the group of employees or members who are to be balloted, and the question or questions to be asked in the ballot. The AIRC will be empowered to determine whether a ballot should or should not proceed. Before ordering a ballot the AIRC would need to be satisfied that, among other things, the parties have been genuinely bargaining.

Members of organisations making agreements (or the employees to be covered in the case of non-union agreements) would be eligible to vote in a ballot.

The ballot paper will be required to include information on a range of matters, including the group of employees who are being balloted and the form(s) of action proposed to be taken. In addition, each ballot paper will include a prescribed statement outlining the implications of taking or not taking industrial action. The Commonwealth would subsequently reimburse up to 80 per cent of the cost of the ballot.⁽²³⁾

Ballots and industrial action in Britain and the US

The secret ballot proposal of the Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2000 is different to ballots for protected action available to unions in Great Britain. This is in part because of the very different legal underpinning ballots of the British labour relations system. The British system is usually described as a voluntarist system. The Australian federal industrial system has been described as an arbitration system, and more recently, as a hybrid system exhibiting some of the characteristics of a compulsory arbitration system determining the 'safety net' with enterprise bargaining grafted on top.

The House of Commons Library has reported on the background to ballots and industrial action in a research paper prepared by Julia Lourie. Ms Lourie notes that it was the Trade Union Act 1984 which introduced secret pre-strike ballots. To protect their immunity, trade unions could only start industrial action if the action had been approved by a simple majority in a ballot held not more than four weeks before. The Employment Act 1988 required separate pre-strike ballots at each place of work or bargaining unit.⁽²⁴⁾ The Trade Union Reform and Employment Rights Act 1993 provided that:

all industrial action ballots should be fully postal
that unions should give employers at least seven days' notice of their intention to ballot on industrial action
that unions should notify employers of the ballot result
that ballots involving 50 or more members should be subject to independent scrutiny, and
and that unions should provide employers with at least seven days' notice of industrial action.

Ms Lourie also reported that before the 1997 General Election, the Conservative Government issued a White Paper proposing yet more conditions which a union would have to meet to comply with the law on strike ballots. These included:

extending from seven to fourteen days the period of notice which a trade union must give in order to enjoy statutory immunity
raising the threshold required for a strike ballot to confer immunity from a majority of those voting to a majority of those entitled to vote, and
and requiring trade unions to seek support for industrial action to continue through a new ballot two or three months after the start of the action and at regular intervals thereafter.

She notes that in some respects, the 1984 requirement to hold ballots helped trade unions, in that a vote in favour of strike action strengthened their hand in negotiations. More recently however,

... the complex requirements imposed, in particular by the 1993 Act, have made it increasingly difficult for unions to call lawful strikes and given employers the opportunity to take out injunctions halting strike action because of a procedural technicality.⁽²⁵⁾

One provision of the 1993 amendment was that the notice of intention to hold a ballot should contain information 'describing (so that he can readily ascertain them) the employees of the employer who it is reasonable for the union to believe... will be entitled to vote in the ballot'. The ensuing Employment Relations Act 1999 of the Blair Government rescinded this provision and put the onus on the union conducting the ballot of its members to make 'reasonable' information about pending action available to the relevant employer/s.

The sum of these provisions distinguish the British ballot system from the Government's proposal.

The British system retains a unique role for the union which has representational and bargaining rights for its members. The relevant legislation then imposes an obligation for the union to conduct a ballot of its members. The dispute can be about a full range of industrial issues, contrary to the Australian proposal. The Australian proposal requires an application for a ballot to be conducted under provisions of the Bill and the principal Act. This allows employers to intervene formally in the process to argue that other options to engaging in industrial action might be available for the Commission to consider. As well, there is no provision for non-unionists to take industrial action under the British model. As well, there are no comparable provisions in the British model for initiation of a bargaining period.

As is well known, workers in the United States must go through a lengthy procedure to decide whether to be represented by a union. However, once representation is determined and the union seeks to negotiate a successive collective agreement, there is no procedure requiring a secret ballot under the auspices of the National Labour Relations Board authorising the industrial action at the expiry of the first 'contract'. Once certification has been determined, non-unionists have no rights for a separate non-union agreement. Only union members can vote to ratify an agreement.⁽²⁶⁾

Main Provisions

Items 3 to 16 of Part 1 of Schedule 1 amend the current provisions authorising the Commission to initiate a ballot concerning industrial action. The current subsection 135(1) pertaining to ballots of members of organisations in respect of industrial disputes is retained. A new subsection 135(2) will however prevent the Commission from conducting a ballot of a registered organisation under subsection 135(1) where the organisation has initiated a bargaining period.

Item 17 (New section1 70MJA) will allow employees to appoint a bargaining agent who might then initiate a bargaining period on their behalf. Proposed section 170MJB is supposed to ensure the anonymity of those appointing the agent.

Item 18 amends subsection 170ML(7) to ensure that industrial action is only protected if it it complies with procedures of proposed Division 8A Part VIB.

Item 19 repeals and replaces subsections 170MO(5) and (6) so that the precise nature and form of intended action is specified as its duration and the day(s) on which it is to occur, and notice of proposed protected action cannot be given until the ballot is declared.

Item 20 amends section 170MQ and provides that action taken by employees will not be protected unless it is in response to a lock-out (for which no ballot is required), or the action has been authorised under Division 8A

Item 22 introduces New section170MWE dealing with industrial action without another ballot after the end of the suspension of a bargaining period. A ballot for protected industrial action will not authorise that action if the action has not been conducted in the form prescribed by the ballot order.

Item 23 inserts Division 8A in Part VIB into the Act including its objects (proposed section 170NBA) and definitions and sets out the fundamental operation of the new provision. It prescribes those persons eligible to make an application to the Commission (proposed section 170NBB) and the contents of the application including the precise form of industrial action, the days and duration of any action as well as the names of employees where they have appointed an agent. Application for a ballot must be within a bargaining period for the negotiation of a proposed agreement under Division 2 or 3 of Part VIB.

Proposed section 170 NBBB details the accompanying information which a ballot application must contain, eg a declaration that the agreement sought and the action being taken will not seek preference clauses for employees etc.

Proposed section 170 NBCA requires the Commission to determine an application within 4 working days but it can reject a frivolous application and it can make directions regarding a ballot application.

Proposed section 170NCBF sets out all the criteria which have to be met by the applicants that their application complies with all of the requirements of Division 8A, before the application is granted.

Proposed section 170 NBCH allows the Commission to grant an application and then order the applicant to hold a ballot. A ballot has to be postal unless an alternative, similar process can be approved.

Proposed sections 170NBCK and 170NBCL allow the Commission to request information from employers and others on the electoral roll relevant to a ballot and for the roll to be compiled.

Proposed section 170NBCN allows the ballot agent (likely to be the Australian Electoral Commission) to amend the roll usually on an application from an individual who has been excluded.

Proposed section 170 NBCO would allow a ballot agent to have the ballot order varied (before its expiry).

Proposed section 170NBDD requires that at least 50 per cent of those on the relevant roll of voters voted and more than 50 per cent of the votes cast approved the action. Proposed section 170NBE and other provisions of new Subdivision E deal with a register of ballot agent.

Proposed section 170NBFA allows 80 per cent of reasonable costs of the conduct of the election to be borne by the Commonwealth.

Concluding Comments

Questions remain as to whether these provisions will result in an overly complex procedure for securing protected industrial action as a result of this Bill. The issue of whether proposed secret ballots for industrial action were in harmony with the ILO's freedom of association principles, or were overly complex, was addressed in a submission by the International Centre for Trade Union Rights in respect of secret ballot provisions contained in the Minority Report reviewing the 'More Jobs Better Pay' Bill. The Minority report noted:

It is true that the ILO supervisory bodies have, in the past, taken the view that mandatory pre-strike ballots do not necessarily conflict with the principle of freedom of association. However they have also maintained that the legal procedures for declaring a strike, such as secret ballots:

should be reasonable;

should not place substantial limitations on the means of action open to trade unions;

should not be so complicated as to make it practically impossible to declare a legal strike; and

are acceptable, and do not involve any violation of the principle of freedom of association, only when they are intended to promote democratic principles within trade union organisations.⁽²⁷⁾

The Workplace Relations Act has detailed provisions stipulating access to protected industrial action and the circumstances under which it can be accessed and terminated. The Bill proposes no similar obligation on an employer or a group of employers, for example by requiring corporations to ballot shareholders. Applications for access to an authorised lock-out will continue to be formalised through sections 170 MI and 170 ML(3) of the WR Act. If the concern is to place an obligation on a union to consult with its members or accept their directive concerning protected industrial action then amendments to sections 195 and 196 requiring union rules to have these provisions might be a useful alternative.

Endnotes

In his Second Reading Speech for this Bill, the Minister inadvertently refers to the 'More Jobs Better Pay' Bill passing the House of Representatives on 14 October 1999. This is not correct.
Senate Employment, Workplace Relations, Small Business and Education Legislation Committee, Consideration of the Provisions of the Workplace Relations Legislation Amendment (More Jobs Better Pay) Bill 1999.
Senate Employment, Workplace Relations, Small Business and Education Legislation Committee, Consideration of the Provisions of the Workplace Relations Legislation Amendment (More Jobs Better Pay) Bill 1999, p. 256.
ibid p. 124.
AIRC/AIR, Annual Report 1998/99, p. 47.
Quoted in 'Non-union workers seek strike rights', The Australian Financial Review, 2 June 2000. In th course of writing this Digest, this application for non-union has been authorised: 'Unions see profit in a company', The Australian 15 August 2000, p. 2.
Senate Employment, Workplace Relations, Small Business and Education Legislation Committee, Consideration of the Provisions of the Workplace Relations Legislation Amendment (More Jobs Better Pay) Bill 1999, see page 105 which reflects the Government's submission on repealing AWA protected industrial action.
Australian Industrial Relations Commission: www.airc.gov.au.
Di Yerbury, 'The main characteristics of Trade Union Law in the Australian Compulsory Arbitration System' in J. Isaac and W. Ford (eds) Australian Labour Relations (Sun Books 1974) p. 143
Don Rawson, Unions and Unionists in Australia, (George Allen & Unwin, 1978) p. 19
Orwell de R. Foenander, Industrial Regulation in Australia, (Melbourne University Press, 1947) p. 190.
Don Rawson, Unions and Unionists in Australia, (George Allen & Unwin, 1978), p.59.
ibid p. 60.
See section 187A Workplace Relations Act 1996
Edward M Davis, Democracy in Australian Union; A Comparative Study of Six Unions, (Allen and Unwin) 1987, p. 2-3.
The Hon John Howard MP, Appropriation Bill No.1 1988-89 House of Representatives, Hansard, 25 August 1988, p. 419.
Jobsback!, The Federal Coalitions Industrial Relations Policy, October 1992, par.12.1.
Better Pay for Better Work, The Federal Coalition's Industrial Relations Policy, February 1996, par.11.
The Industrial Relations Reform Act 1993 amended the Industrial Relations Act 1988, and under certain circumstances industrial action was protected under Division IV Part VIB.
Industrial Relations Act: sections 334 and 335.
The Hon Peter Reith MP, Better Pay for Better Work, The Federal Coalition's Industrial Relations Policy, February 1996.
The Hon Peter Reith MP, Pre-industrial action secret ballots, Ministerial Discussion Paper, August 1998. The main point of this paper was that secret ballots should be used only for protected industrial action and should not be used to legitimise unlawful industrial action
The Hon Peter Reith MP, The continuing reform of workplace relations: Implementation of 'More Jobs Better Pay' Ministerial Discussion Paper, May 1999, p. 23.
Julia Lourie Fairness at Work¸ Research Paper 98/99, House of Commons Library, 1998.
ibid
Refer: E. Herman, A. Kuhn and R. Seeber, Collective Bargaining and Labor Relations (Prentice-Hall, 1987). They observe: The basic logic of the situation is intractable, particularly in private employment. Assuming the old contract has expired, to prohibit a strike is to require workers to work against their will. p.290. Section 8 (d)(3) of the US National Labor Relations Act requires notification for contract renewal to the Federal Mediation and Conciliation Service but only where interstate commerce might be affected.
Senate Employment, Workplace Relations, Small Business and Education Legislation Committee, Consideration of the Provisions of the Workplace Relations Legislation Amendment (More Jobs Better Pay) Bill 1999, p. 261 and The Hon Peter Reith MP Second Reading Speech The Workplace Relations Amendment (Australian Workplace Agreements Procedures) Bill 2000, House of Representatives Hansard 28 June 2000 p. 18242.

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