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House of Assembly - Fifty-First Parliament, Second Session (51-2)
2008-07-24 Daily Xml
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FAIR WORK (PROHIBITION AGAINST BARGAINING SERVICES FEE) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 5 June 2008. Page 3460.)

Ms SIMMONS (Morialta) (11:08): The government opposes this bill at this time as it would be unnecessary and heavy-handed legislation. The bill is also pre-emptive of the new nationally coordinated industrial relations system, which is in the very early stages of development, involving the new federal Labor government and the states and territories. Fundamentally, the Fair Work (Prohibition Against Bargaining Services Fee) Amendment Bill addresses a matter that is unlikely to arise in the South Australian industrial jurisdiction as it currently stands. If it were to do so, it would be appropriately addressed in accordance with existing decisions in the South Australian Industrial Relations Commission.

It is generally recognised that a very high proportion of strongly unionised workplaces are now, as a consequence of the former federal Liberal government's WorkChoices legislation, within the federal industrial jurisdiction. This means that the federal prohibition against approval of bargaining fees and agreements, which has been in place since 2003, operates to restrict the potential use of bargaining fees in South Australian workplaces.

According to recent estimates made by SafeWork SA, at least 60 per cent of South Australian workers are now covered by the federal industrial relations system. This change of coverage, as the house knows, is based on the transfer of corporations to the federal jurisdiction. For such companies and their employees, the possibility of negotiating bargaining fees is simply removed by the prohibition contained in current federal legislation.

The new federal government has indicated that a prohibition on bargaining fees should be retained in the amended federal legislation due later this year. However, the precise details of the new national industrial relations system are still to be finalised, including the role of state-based law.

In terms of the other South Australian workers and employers who, in the meantime, still reside within the state's industrial relations system, as members of the house will recall, South Australian industrial law on bargaining fees was determined by the decision of the South Australian Industrial Relations Commission delivered in April 2004, when considering the enterprise agreement between Ian Gregory Morrison Pty Ltd and the Liquor, Hospitality and Miscellaneous Workers Union.

The commission made it very clear that the Morrison-LHMU decision would not be treated as a generally applicable precedent and that each submission regarding bargaining fees would be treated on its merits. This included appropriate measures to protect the interests of non-members. Indeed, the bar for successful approval of an agreement containing bargaining fees was set very high. The commission stated its position on this matter very clearly in the Morrison-LHMU decision and has applied those principles rigorously and responsibly.

Since that time, the commission has approved very few enterprise agreements with bargaining provisions (with only two successful applications, including the Morrison-LHMU agreement, as reported by the commission). There has been no flood of applications and such is very unlikely. This is especially the case when the rigour applied by the commission is considered in conjunction with what is expected to be an ongoing federal prohibition which makes bargaining fees unlawful in the context of those companies most likely to consider them.

Common sense also suggests that these matters would best be considered when more details on the composition of the new national industrial relations system is available. The government notes the very heavy-handed means proposed for dealing with bargaining fees by section 7 of the current bill, namely, establishing a series of new offences for seeking bargaining fees. It is unnecessary, inappropriate and very poor legislative practice to create offences with fines of up to $20,000 for matters that might, should the parliament determine, be effectively controlled by amendments that would simply disallow bargaining fees within enterprise agreements.

I am sure the people of South Australia will prefer that this parliament demonstrate some measure of restraint and common sense by only adding to our industrial legislation such offences and fines as are truly necessary.

Frankly, this bill is completely unnecessary at the current time as it addresses a matter that is unlikely to be even proposed by the industrial parties in the present environment, and an appropriate and measured system is in effect in any event.

Debate adjourned on motion of Mrs Geraghty.

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