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Lawful Industrial Action (Minor Errors) Bill

I am grateful for all the interventions, but I want to present my arguments because there are genuine concerns about that Bill that the coalition partners share, and it is important to put them to the House. We have serious difficulties with the proposal to reverse the burden of proof. To date, in any proceedings, once the employer has established that there has been a breach of the safeguards, the burden shifts to the union wishing to avail itself of the statutory defence to establish whether section 232B applies. That is consistent with the rules on the burden of proof: the burden generally lies on the party making the proposition. However, the Bill contravenes that general rule of evidence. In addition, it ignores another general rule that parties are not required to establish a negative. Under the Bill, the employer has to establish that the breach does not qualify for the disregard under section 232B. On a practical level, it is unrealistic and unfair to imply a level of knowledge on the part of the employer, which enables the employer to show not only that the law has been broken, but that the lack of compliance is substantial and meets certain thresholds.