Workplace Relations
Amendment (Secret Ballots For Protected Action) Bill 2002
Background
- The Secret Ballots 2002 Bill contains a number of changes from its 2000
predecessor of the same name. However, the ACTU submits that the changes do
not, in practice, make the proposed requirements materially less cumbersome or
restrictive.
- The process for obtaining and implementing an order for a secret ballot set
out in the Bill adds additional time-consuming complexity to the taking of
protected industrial action, reflected in the approximately 35 pages which would
be added to the Act if the Bill was to be passed. The ACTU submits that the
process would be of such complexity that it would nullify any practical right to
take protected action.
- Following the failure of the 2000 Bill to receive sufficient support to
ensure passage through the Senate, the Government submitted an outline of new
proposals, largely reflected in the 2002 Bill, to the ILO’s Freedom of
Association Branch. In a letter to the Department dated 9 October 2000, the
Chief of the Branch wrote:
“As requested, I am able to confirm that the ‘elements
underpinning possible Australian legislation on pre-industrial action secret
ballots’, which you submitted to us on 29 September 2000, do not, standing
alone, appear to contravene existing ILO principles and standards on freedom of
association. The supervisory bodies have accepted secret ballots as a
pre-requisite to taking strike action, on the condition that the procedures, the
quorum and the majority required are not such that in practice the exercise of
the right to strike becomes very difficult.
“As we discussed during your visit, any legislation that is finally
adopted on compulsory strike ballots will need to be considered in the context
of the industrial relations legislation as a whole, in particular all the
legislative requirements in order to call a lawful strike, to ensure that the
cumulative effect of such legislation, by virtue of its complexity and extent,
is not such as to make it very difficult from a practical point of view to
declare a legal strike, or to declare a strike in a timely manner. Our opinion
concerning the pre-strike ballots must also be viewed in the light of the
comments of the Committee of Experts concerning the legislation regulating
strikes in Australia, in particular the concerns expressed regarding the
restrictions on the subject-manner of strikes, the prohibition of sympathy
action, and the restrictions extending beyond essential
services.”
- If the Government were to claim ILO endorsement of its scheme it would be a
level of hypocrisy which would be unbelievable if it was not consistent with its
general pattern of behaviour. The Government will not ask the ILO to examine
the 2002 Secret Ballots Bill “in the context of the industrial relations
legislation as a whole”, while it continues to ignore its previous
findings and observations on the right to strike. Showing complete contempt for
these findings, the Government has introduced the Genuine Bargaining Bill, which
further restricts the right to strike.
The Rationale For Secret
Ballots
- The ACTU supports the right of union members to vote on whether or not to
take industrial action, and believes such votes are generally taken. It should
be noted that a number of unions routinely use secret ballots prior to taking
industrial action. No evidence has been adduced showing that unionists are
being forced or required to take industrial action against their will, or
without their consent. The fact that in many disputes not all union members
participate, is evidence of the lack of coercion, which would, in any event, be
unlawful.
- The ACTU notes that secret pre-strike ballots are available when requested
by employees under section 136 of the Act.
- It is also possible under section 135 for the Commission to order that a
secret ballot be conducted if it considers that this would be helpful in
resolving a dispute, if industrial action is pending, or to ascertain whether an
agreement has been genuinely made.
- Although there is no specific provision for an application for a secret
ballot to be made by an employer party to the dispute, another affected party
or the Minister, there is no bar on any of these persons making submissions to
the Commission that a ballot should be ordered.
- In the Ministerial Discussion Paper Pre-industrial action secret ballots
published in August 1998, the authors found that very few secret ballots had
been ordered by the Commission, and that where these had occurred they had
generally been to ascertain employees’ attitudes to particular issues,
rather than their views in relation to industrial action. The report
concludes:
“The Commission appears to be using ballots strategically to
progress dispute resolution, particularly where the parties have reached a
stand-off in negotiations.” (p3)
- There is no evidence in the Discussion Paper of the Commission refusing
applications by employers, or anybody else, for ballots to be conducted in
relation to the question of taking industrial action.
- Western Australia has legislation for compulsory secret pre-strike ballots,
although its repeal is currently before the WA Parliament. There had not been
one application for a ballot from 1 January 1998, when the legislation came into
effect. This is in spite of applications being able to be made by an employer or
employer organisation, as well as by a union or union member. The Minister also
has the power to issue a certificate that a ballot would be in the public
interest, whereupon the Commission was required to order it to be held. The
Ministerial Discussion Paper notes, in relation to WA:
“There have already been a number of apparent breaches of the
Act.” (p15)
- The ACTU submits that existing provisions are generally unutilised, not
because they are difficult to access, but because in the face of an actual
dispute, parties and other affected persons have not taken the view that a
ballot would be effective in preventing industrial action or resolving the
dispute.
- It is interesting to note that the Bill proposes to remove the
Commission’s discretion under section 135(2B) to order a secret ballot in
the case of unprotected action; this is part of a general thrust by the
Government to create a legislative framework in which legal action is the only
possible response by employers to unprotected industrial action, rather than
encouraging the use of Commission processes to resolve the dispute which has
given rise to the industrial action.
- In this context, the Government’s proposals for a system of compulsory
secret ballots cannot be seen as anything other than an attempt to further
restrict the ability of Australian unionists to take protected industrial
action, bearing in mind that this right is already more restricted than in most
other developed countries. The incidence of industrial action in falling in
Australia, demonstrating that there is no industrial crisis that requires
action.
- The Government’s refusal to consider secret ballot requirements to
call off a strike is conclusive evidence that this proposal has nothing to do
with democratic functioning, and everything to do with restricting the right to
strike. Further evidence is provided by the lack of any support for proposals
such as compulsory secret postal shareholder votes on issues such as takeovers,
or whether or not a company should lock-out its employees.
The 2002
Changes
- While the 2002 Bill contains some improvements over its predecessors, these
are relatively minor, and do not change the essentially restrictive and
intrusive nature of the scheme.
Ballot
applications
- Proposed subsection 170NBB(1A) provides that an application for a ballot may
be made up to 30 days before the expiry of an existing agreement. Under the
2000 Bill the only requirement was that an application be made during a
bargaining period.
- This change, if anything, imposes an additional restriction, as the 2000
Bill allowed applications to be made at any time after a bargaining period had
commenced. It reflects the new provision in proposed subsection 170NBDD that
industrial action authorised by a ballot must commence within 30 days of the
declaration of the ballot results.
Applications to be dealt
with quickly
- Proposed section 170NBCA provides that the Commission must act as quickly as
is practicable and must, as far as is reasonably practicable, deal with a
ballot application in two days. This has been changed from four days in the
2000 Bill.
- The ACTU submits that as the provision is merely aspirational, the reduction
in time is of no material significance. The Commission’s ability to deal
with applications quickly can be quite outside its control.
- Employers and others wishing to delay the action will be able to argue a
number of issues before the Commission, such as the validity of the bargaining
period and whether or not the union has genuinely tried to reach agreement. In
addition, procedural issues, such as who should conduct the ballot, the roll and
the timetable are all issues for debate which can be used for delay.
- The new proposal allowing the Commission to decline to consider a submission
if satisfied that it is vexatious, frivolous, misconceived or lacking in
substance [s170NBCB(2)] is unlikely to prevent delays, given that the
Commission is bound by the rules of natural justice, and would need to listen to
a submission before being able to make the relevant determination.
- Similarly, the proposed privative clause [s170NBGBA], while limiting appeals
against ballot orders, will not affect the length of the initial
proceedings.
- The Commission is also limited by its own resources and by the need to deal
with competing priorities created by applications under other provisions of the
Act which are seen by parties as requiring urgent attention.
- To an uncertain period for the hearing and determination of an application
for a ballot order must be added a period of around three weeks for the
Electoral Commission or private ballot agent (which may include the union) to
conduct a postal ballot, which is the favoured method in the Bill. This is
followed by three days notice to the employer before the action can take place,
with the Commission able to extend the period to a maximum of seven days if
there are “exceptional circumstances”. [s170NBCI(5)]
- It should be noted that the UK pre-strike ballot provisions do not require
an application to a tribunal for approval of the proposed ballot. In the UK, if
a union believes that a ballot is appropriate, it simply organises one in
accordance with a Department of Trade and Industry Code of
Practice.
The ballot
question
- Proposed subsection 170NBDA requires the question or questions to be put to
the relevant employees to include the nature of the proposed industrial action.
Under the 2000 Bill the ballot question was required to include the precise
nature and form of the proposed action, the day or days on which it is proposed
to take place and its duration.
- “The nature of the intended action” is the term used in
subsection 170MO(5) of the Act in relation to notifying the employer of the
intended taking of protected action. It is a principle of statutory
interpretation that words and phrases used on more than one occasion in a
statutory instrument have the same meaning.
- In considering the meaning of the notification requirement in subsection
170MO(5), a Full Court of the Federal Court has held that a certain degree of
specificity is required.
“Parliament did not indicate what degree of specificity it intended
by the term "nature of the intended action". To interpret this term, on the one
extreme, as requiring no more than an indication of industrial action, as argued
by NUW, would be significantly to devalue s170MO(5); the notice would provide
little information. To interpret it, on the other extreme, as requiring precise
details of every future act or omission would be to impose on the giver of a
notice an obligation almost impossible to fulfil. Industrial disputes are
dynamic affairs. Decisions as to future steps often need to be made at short
notice, sometimes in response to actions of the opposing party or other people,
including governments, and changing circumstances. It would be a major, and
unrealistic, constraint on industrial action to require a party to specify,
three clear working days in advance, exactly what steps it would take. An unduly
demanding interpretation of s170MO(5) would seriously compromise the scheme of
Division 8 of Part VIB of the Act; it would be difficult for a party to an
industrial dispute to obtain the protection contemplated by the Division........
“We think s170MO(5) was designed to ensure that industrial
disputants who are to become affected by protected action, in relation to which
their usual legal rights are significantly diminished, are at least able to take
appropriate defensive action. For example, an employer may operate a
sophisticated item of equipment that will be damaged if precipitately shut down.
If warned in advance of a ban that might affect the continued operation of that
plant, the employer might choose a controlled shut down during the period of the
notice. More commonly, perhaps, an employer might use the notice time to
communicate with suppliers and customers, and thereby reduce the consequences
for them of the notified industrial action. Very often, the recipient of the
notice will respond in a way that has a legal dimension. For example, a union
might react to a notice by an employer of intent to lockout some employees by
giving notice that all employees will strike indefinitely as from the
commencement of the lockout. Similarly, an employer might respond to an
employees' notice of bans by giving notice of a lockout of some or all
employees.
“It will be apparent we think it necessary, and sufficient, for
parties to describe the intended action in ordinary industrial English; for
example, ‘an indefinite strike of all employees’, ‘a lockout
of all employees employed in the AB fabrication plant’, ‘a ban on
overtime’, ‘a ban on the use of the MN equipment’,
‘rolling stoppages throughout the mine’, ‘a ban on the
servicing of delivery vehicles’.” Davids Distribution Pty
Ltd v National Union of Workers [1999] FCA 1108 paras 84, 87-88
- In light of this, the ACTU believes that a new ballot would be required
should the union and its members wish to change the type of action being
taken.
- The proposed requirement that the ballot question specify the nature of the
action should be contrasted with the equivalent provisions of UK law, to which
the Minister referred approvingly in his Second Reading Speech.
- The requirements of the system are set out in a Code of Practice
Industrial Action Ballots and Notice to Employers issued by the Secretary
of State for Trade and Industry pursuant to section 203 of the Trade Union
and Labour Relations (Consolidation) Act 1992, with the authority of
Parliament. Under the UK system of pre-strike ballots, the ballot paper must
include one of these two questions:
Are you prepared to take part in a strike?
Are you prepared to take part in industrial action short of a
strike?
Both questions can be asked and, if both are carried, this allows for a later
decision to be made about the form of action to be taken.
- It should be noted that there is no requirement for the ballot question to
provide any more detail about the type of action. The ballot operates as a
general authority to one or more persons, who may be union officials or
workplace delegates, to make a call for industrial action at some time after the
ballot. The first call for industrial action must be made not less than four
weeks from the date of the ballot, and this can be increased to eight weeks with
the consent of the employer.
- Once a ballot agreeing to industrial action has been carried, the union may
decide to authorise or endorse industrial action, which may be continuous or
discontinuous. Employers must be given seven days notice of the date or dates
on which action is intended to commence.
- While the UK system is unacceptably complex and technical (and is not,
incidentally, supported by UK unions, as alleged by the Minister) and does lead
to a great deal of litigation, it is not as rigid or restrictive as that
proposed in the Bill.
- In particular, unions are not tied to a type of action specified in the
ballot paper, but are able to make decisions about action subsequent to a
ballot, on an ongoing basis, so long as notice is given to the
employer.
Quorum
- Proposed section 170NBDD sets the quorum for the vote as 40 per cent of
voters on the roll, although this can be reduced further by the Commission in
“exceptional circumstances”. [s170NBCI(4)] The quorum under the
2000 Bill was 50 per cent, with no ability for reduction.
- The ACTU submits that it is inequitable to require a quorum, and asks the
Committee to note that no quorum for voters is required under the UK
legislation. (Pre-industrial action secret ballots Ministerial Discussion
Paper, August 1998, p17)
- The ILO Freedom of Association Committee has held that
while:
“the obligation to observe a certain quorum.....may be
acceptable...........The requirement of a decision by over half of all the
workers involved in order to declare a strike is excessive and could excessively
hinder the possibility of carrying out a strike, particularly in large
enterprises”. [Freedom of Association Digest, 4th (revised)
edition, paras 507&510]
- The June 1999 report of the non-Government members of the Public
Administration Committee of the Western Australian Legislative Council into the
Labour Relations Legislation Amendment Act 1997, which, until its
expected repeal, provides for compulsory secret ballots, says in relation to
quorum requirements in a voluntary system of voting:
“....each failure to exercise the capacity to vote has the effect of
an arbitrary determination of that failure to vote as a ‘no’
vote.
“The right to abstain from a voluntary vote is a democratic right
which is widely practiced in Australian society......
“The broad purpose of section 97C of the Act is to provide a
mechanism to determine whether union members wish to engage in a form of
industrial action or not. It is inevitable that in most cases some members will
want to strike, others will not, and others will not want to make a decision
either way. A ballot should be able to reflect that range of opinions, and our
administrative processes should facilitate a fair expression of those
views.” (p47)
- Although the Western Australian legislation to which these comments are
addressed required a higher quorum than the Bill, the principles are the same.
There is simply no justification to require more than a simple majority of valid
votes cast, the system which applies, not only in the UK system of pre-strike
ballots, but in the election of UK politicians, and the President of the United
States. If the quorum requirements in the Bill were to operate in the US, there
would not have been a validly elected President.
- Two examples should be considered, both involving workplaces of 100
employees. In the first, 39 employees in the ballot vote, all in favour of
strike action. In the second, 40 employees vote, 21 of them in favour of strike
action. In the first example, strike action would not be authorised, while in
the second it would, even though it would appear that there was substantially
greater active support for the strike in the first example.
Conduct of the
ballot
- The 2002 Bill provides for a union to be permitted to run the ballot if it
has an “independent adviser”, subject to Commission approval and
authorisation of the adviser. The Commission must not name a person as the
authorised independent adviser for the ballot unless satisfied that the person
is sufficiently independent of the union and is capable of giving the union
advice and recommendations directed towards ensuring that the ballot will be
fair and democratic. [s170NBEA(2)] Under the 2000 Bill, the ballot was required
to be run by the Australian Electoral Commission or a person approved by the
Registrar and entered on a register of ballot agents.
- While this change is a minor improvement, it does not deal with the
inevitable delays which will result from the process required under the proposed
legislation.
- The 2002 Bill allows the Commission to agree to an attendance vote rather
than a postal ballot, if the former is more “efficient and
expeditious”, although the presumption in favour of the latter is
retained. [ss170NBCI(2)-(3)]
- It is difficult to see how the aspiration expressed in subsection 170NBCC(3)
for ballot results being available to the parties within 10 days after the
ballot order is made could possibly be adhered to if a postal ballot is required
by the Commission.
Cost of the
ballot
- The 2000 Bill provided for the Commonwealth to reimburse the union for 80
per cent of costs “reasonably and genuinely incurred” in the holding
of the ballot. The 2002 Bill provides for the 80 per cent to be paid directly
to the ballot agent by the Commonwealth.
- The ACTU submits that this difference is not significant. The long-standing
principle in Australia is that where the Government determines who shall run a
ballot, it pays the costs, as is the case with union elections. It is completely
unfair to impose requirements on private organisations to have ballots run by a
government body, and then require the organisation to pay the costs. In this
case, although the Commission may approve a ballot agent other than the
Australian Electoral Commission, this is clearly the exception. Even if the AEC
is not used, the alternative must be approved by the Commission pursuant to
legislation.
- The Western Australian regulations provide that costs associated with the
ballot are reimbursed by the Registrar to the entity conducting the
ballot.
- The 2002 Bill, on the other hand, proposes that unions would be reimbursed
only 80 per cent of costs, which the ACTU believes is totally
unacceptable.
Conclusion
- The ACTU submits that the 2002 Secret Ballots Bill is intended to, and will
have the effect of restricting the right to take industrial action even further
than is currently the case.
- The ACTU urges the Committee to recommend that the Senate not pass the
Bill.