Commonwealth Consolidated Acts

WORKPLACE RELATIONS AND OTHER LEGISLATION AMENDMENT ACT 1996 - SCHEDULE 4

Part 1—Amendments

Workplace Relations Act 1996

1  Section 118

Repeal the section.

2  Subsection 118A(1)

Omit “202(3)”, substitute “202(6)”.

3  Subsection 118A(1)

After “orders”, insert “in relation to a demarcation dispute”.

Note:       The heading to section 118A is replaced by the heading “ Orders about representation rights of organisations of employees ”.

4  Subsection 118A(1A)

Omit “may make an order under subsection (1) in relation to a demarcation dispute only if”, substitute “must not make an order unless”.

5  After subsection 118A(1A)

Insert:

          (1B)  The Commission must not make an order unless the Commission is satisfied that:

                     (a)  the conduct, or threatened conduct, of an organisation to which the order would relate, or of an officer, member or employee of the organisation:

                              (i)  is preventing, obstructing or restricting the performance of work; or

                             (ii)  is harming the business of an employer; or

                     (b)  the consequences referred to in subparagraph (a)(i) or (ii):

                              (i)  have ceased, but are likely to recur; or

                             (ii)  are imminent;

                            as a result of such conduct or threatened conduct. 

6  Subsection 118A(2)

Repeal the subsection, substitute:

             (2)  In considering whether to make an order, the Commission must have regard to the wishes of the employees who are affected by the dispute, and, where the Commission considers it appropriate, is also to have regard to:

                     (a)  the effect of any order on the operations (including operating costs, work practices, efficiency and productivity) of an employer who is a party to the dispute or who is a member of an organisation that is a party to the dispute; and

                     (b)  any agreement or understanding of which the Commission becomes aware that deals with the right of an organisation of employees to represent under this Act the industrial interests of a particular class or group of employees; and

                     (c)  the consequences of not making an order for any employer, employees or organisation involved in the dispute; and

                     (d)  any other order made by the Commission, in relation to another demarcation dispute involving the organisation to which the order under this section would relate, that the Commission considers to be relevant.

Note:          Under section 135, the Commission may order that a vote of the members of the organisation concerned in the dispute be taken by secret ballot for the purpose of finding out their attitudes to the dispute.

7  Subsection 118A(3)

Omit “under subsection (1)”.

8  Subsections 118A(5), (6) and (7)

Repeal the subsections, substitute:

             (5)  An organisation to which an order applies must comply with the order.

             (6)  The Court may, on application by the Minister or a person or organisation affected by an order made under subsection (1), make such orders as it thinks fit to ensure compliance with that order.

9  Subsection 204(6B)

Repeal the subsection, substitute:

          (6B)  A designated Presidential Member may also refuse to consent to an alteration of the eligibility rules of an organisation if he or she:

                     (a)  is satisfied that the alteration would change the effect of any order made by the Commission under section 118A about the right of the organisation to represent under this Act the industrial interests of a particular class or group of employees; and

                     (b)  considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.

          (6C)  Subsections (6A) and (6B) do not limit the grounds on which a Presidential Member may refuse to consent to an alteration of the eligibility rules of an organisation.

10  Paragraph 204(8)(a)

Omit “118A(6) or”.

Part 2—Transitional provisions

11  Transitional—applications under section 118A of the Workplace Relations Act in respect of which the substantive hearing has not begun

(1)        This item applies to an application made under section 118A of the Workplace Relations Act but in respect of which the Commission had not begun the substantive hearing before the commencement of this item.

(2)        After the commencement of this item, the application has effect as if it were an application made under section 118A of the Workplace Relations Act as amended by this Schedule.

12  Transitional—applications under section 118A of the Workplace Relations Act in respect of which the substantive hearing has begun

(1)        This item applies to an application made under section 118A of the Workplace Relations Act and in respect of which the Commission had begun the substantive hearing before the commencement of this item.

(2)        Despite the amendments made to section 118A of the Workplace Relations Act by this Schedule, that section as in force immediately before the commencement of this item continues to apply in relation to the hearing of the application.

(3)        An order made as a result of the hearing of the application has effect as if it had been made under section 118A of the Workplace Relations Act as amended by this Schedule.

13  Transitional—orders under section 118A of the Workplace Relations Act

(1)        This item applies to an order that was in force under section 118A of the Workplace Relations Act immediately before the commencement of this item.

(2)        The order continues in force, after the commencement of this item, as if it had been made under section 118A of the Workplace Relations Act as amended by this Schedule.