WORKPLACE RELATIONS ACT 1996 - SECT 430 Suspension and termination of bargaining periods--general powers of Commission

This legislation has been repealed.

WORKPLACE RELATIONS ACT 1996 - SECT 430

Suspension or termination required if certain circumstances exist

             (1)  Subject to subsection (9), the Commission must, by order, suspend or terminate a bargaining period if, after giving the negotiating parties an opportunity to be heard, it is satisfied that any of the circumstances set out in subsections (2), (3) (7) and (8) exists or existed.

Circumstance--failing to genuinely try to reach agreement etc.

             (2)  A circumstance for the purposes of subsection (1) is that a negotiating party (not being the applicant for the order) that, before or during the bargaining period, has organised or taken, or is organising or taking, industrial action to support or advance claims in respect of the proposed collective agreement:

                     (a)  did not genuinely try to reach an agreement with the other negotiating parties before organising or taking the industrial action; or

                     (b)  is not genuinely trying to reach an agreement with the other negotiating parties; or

                     (c)  has failed to comply with any orders or directions of the Commission made during the bargaining period that relate to, or that relate to industrial action relating to, the making of the proposed collective agreement or to a matter that has arisen in the negotiations for the proposed collective agreement.

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.

Circumstance--industrial action endangering life etc.

             (3)  A circumstance for the purposes of subsection (1) is that:

                     (a)  industrial action to support or advance claims in respect of the proposed collective agreement is being taken, or is threatened, impending or probable; and

                     (b)  that industrial action is adversely affecting, or would adversely affect, the employer or employees of the employer; and

                     (c)  that industrial action is threatening, or would threaten:

                              (i)  to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

                             (ii)  to cause significant damage to the Australian economy or an important part of it.

Note:          See also Division 8 (about workplace determinations once a bargaining period has been terminated).

             (4)  If an application is made to the Commission for an order under subsection (1) on the grounds of or including a circumstance set out in subsection (3), the Commission must, as far as practicable, hear and determine the application within 5 days after the application is made.

             (5)  If subsection (4) applies to an application and the Commission is unable to determine the application within the period referred to in that subsection, the Commission must, within that period, make an interim order suspending the bargaining period until the application is determined.

             (6)  If the Commission makes an order under subsection (1) terminating a bargaining period in a circumstance set out in subsection (3), the Commission must send each of the negotiating parties a notice:

                     (a)  setting out the effect of Division 8; and

                     (b)  informing the negotiating parties that they may agree to submit the matters at issue to an alternative dispute resolution process conducted by the Commission or another provider (see Divisions 4 and 6 of Part 13).

Circumstance--organisations and employees who are not members

             (7)  A circumstance for the purposes of subsection (1) is that industrial action is being organised or taken by:

                     (a)  an organisation that is a negotiating party; or

                     (b)  a member of such an organisation who is employed by the employer; or

                     (c)  an officer or employee of such an organisation acting in that capacity;

against an employer to support or advance claims in respect of employees:

                     (d)  whose employment will be subject to the agreement; and

                     (e)  who are neither members, nor eligible to become members, of the organisation.

Circumstance--demarcation disputes

             (8)  A circumstance for the purposes of subsection (1) is that industrial action that is being organised or taken by an organisation that is a negotiating party:

                     (a)  relates, to a significant extent, to a demarcation dispute; or

                     (b)  contravenes an order of the Commission that relates, to a significant extent, to a demarcation dispute.

Orders on application or Commission's initiative

             (9)  The Commission:

                     (a)  may not make an order under subsection (1), in a circumstance set out in subsection (2), (7) or (8), except on application by a negotiating party; but

                     (b)  may make an order under subsection (1), in a circumstance set out in subsection (3):

                              (i)  on its own initiative; or

                             (ii)  on application by a negotiating party or the Minister.

Application does not have to identify bargaining periods

           (10)  An application may be made to the Commission for an order under subsection (1) 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.

           (11)  If subsection (10) applies to an application, the Commission must satisfy itself as to which bargaining periods the application has effect in relation to.

Restrictions on initiating new bargaining periods

           (12)  An order under subsection (1) suspending a bargaining period may, if the Commission considers it to be appropriate, 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 collective agreement; or

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

           (13)  An order under subsection (1) terminating a bargaining period may, if the Commission considers it to be appropriate, contain a declaration that, during a specified period beginning at the time of the termination, 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 collective agreement; or

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

Extension of notice period required by subsection 434(3)

           (14)  In an order under subsection (1), the Commission may, if it is satisfied, in relation to any industrial action that might be taken (by virtue of section 434) after the end of the period of suspension, that there are exceptional circumstances justifying the period of written notice required by subsection 434(3) being longer than 3 days, specify a longer period, of up to 7 days.