Tony Abbott has stumbled into yet another WorkChoices problem with his commitment yesterday to save $25.4 million by forcing unions to pay the cost of ballots.

The proposal goes far beyond the draconian requirement of WorkChoices, which required all ballots for industrial action to be conducted by secret ballot — but with unions only paying 20% of the “reasonable costs” of the ballot. Under the Abbott proposal, unions would have to bear the full cost of conducting protected secret ballots.

Secret ballots for industrial action were long a goal of Coalition IR policy. By forcing unions to conduct secret ballots, WorkChoices ostensibly aimed at ensuring there was no intimidation of union members who may not have wanted to take strike action. However, even the Howard government declined to impose on unions the expense of organising, running and counting a secret ballot involving possibly hundreds or thousands of trade union members. Section 109ZH of the Workplace Relations Act 2005 required that unions only meet 20% of the “reasonable cost” of secret ballots, with the Australian Electoral Commission picking up the rest, or the Commonwealth picking up the rest if an authorised authority other than the AEC conducted the ballot. In 2008-09, the AEC conducted nearly 230 industrial action ballots.

The Rudd government kept the requirement for secret ballots for protected industrial action, but removed the 20% cost requirement. The issue of liability for costs of often-expensive secret ballots is covered in the Fair Work Act, s.464(2), which says

The Commonwealth is liable for the costs incurred by the Australian Electoral Commission in relation to the protected action ballot, whether or not the ballot is completed.

The Daily Telegraph this morning seized on the contradiction between the imposition of full costs on unions and Abbott’s repeated insistence, complete with signed statement, that the Fair Work Act would not be changed in the first term of a Coalition Government.

In response to the story, Eric Abetz, Joe Hockey and finally Tony Abbott all claimed that the imposition of full costs on unions could be done without amending this section of the Fair Work Act. Instead, they claim, the Commonwealth Electoral Act 1918 can be amended to address the issue.

Section 7B of the Electoral Act says:

Unless otherwise provided by or under this Act or another Act, reasonable fees may be charged for goods or services supplied under section 7A.

Section 7A allows the AEC to enter into contracts to supply services such as running elections to outside parties. Conceivably, s.7B could be amended to override the Fair Work Act without amending the latter, but difference is purely legalistic — in effect s.464(2) of the Fair Work Act would have been repealed, even if the repeal was done in another Act.

As if it would help his case, Abbott declared this morning that his advice had come from Shadow Attorney-General George Brandis “one of Australia’s finest lawyers”. Undoubtedly, Brandis holds the view that he is in the top rank of Australian jurisprudence; whether that view is widely shared is another question.

In any event, the Coalition proposal announced yesterday is, in effect, five times worse than Workchoices, which at least kept union liability down to 20%. Strictly speaking, Abbott won’t be reintroducing any elements of WorkChoices — he’ll be going much, much further.