Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Hansard source

by leave—I move opposition amendments (8) to (10):

(8)    Schedule 22, page 257 (after line 15), at the end of section 137A, add:

Application of right of entry penalties to employers

        (8)    An employer who refuses entry to an employee organisation on the grounds of seeking an order or interim order under this section, and acts expeditiously and in good faith in seeking that order, is not subject to right of entry penalties under Part 3-4 of this Act.

(9)    Schedule 22, page 257 (after line 32), after paragraph 137B(1)(e), insert:

           (ea)    the views of the employer; and

(10)  Schedule 22, page 257 (after line 33), after subsection137B(1), insert:

     (1A)    For the purposes of paragraph (1)(d), any agreement or understanding includes prior judicial and administrative decisions under previous legislation or involving related or predecessor employee organisations.

The purpose of these amendments it to provide for the application of right of entry penalties to be suspended where an employer has acted expeditiously and in good faith in seeking a representation order. Allow me to seek to explain. Where an employer has a site and there is a dispute about union representation, the employer can seek the assistance of Fair Work Australia to resolve the dispute. While this is occurring, our amendment would protect the employer from being penalised for stopping entry to union officials as that employer would not know which union is entitled to represent employees until after the union representation order has been made by Fair Work Australia. A key requirement is that the employer would have had to act quickly and in good faith to seek an order and cannot use it as a way of shutting unions out in nefarious circumstances.

Our amendments would require Fair Work Australia to have regard to the views of the employer when making an order. The current provision focuses on the nuances of union rules and may result in a lengthy proceeding about historical coverage and such matters. An employer should be entitled to make its views known to Fair Work Australia and Fair Work Australia should be required to take those views into account just as it is already required to take into account the views of employees.

Our amendments would also require Fair Work Australia to have regard to previous demarcation decisions and outcomes. There is a large history of such cases and there is a danger that Fair Work Australia may have to go over old ground once again, which is unnecessary and inefficient. Our amendments merely allow Fair Work Australia to take account of those previous decisions and outcomes when making any new orders. This will allow union representation orders to be obtained much more quickly and effectively while minimising any operational disruption, job delays, job losses or productivity. In short, the reason we are moving these amendments is once again to assist small business in this vexed area of union right of entry and representations. There are clearly circumstances that can be foreseeable where the employer can act in good faith and simply not know what is required and as a result if they act expeditiously and go to Fair Work Australia, the issue can be resolved. In those circumstances a small businesses should not have the threat of penalties being imposed in that very small, very discrete area of circumstance that I have just detailed. I commend opposition amendments (8) to (10).