Ross Hart (Bass, Australian Labor Party) Share this | Hansard source

I thank the member for Burt for his contribution on the Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2017. One of the many fallacies that are perpetrated on this House by the other side is the fact that on this side of the House we are all ex union representatives. And, of course, at the moment we have two current lawyers speaking about this very important legislation, how it is bad law and why it should not be passed. I'm very pleased to speak on this bill so that I can make the point that it is purely about politics; it's not about policy. But that is not of itself surprising, given that this government has form in preferring the interests of the big end of town over those of ordinary Australians, just as it prefers tax cuts to properly funding health and education and supporting lower-paid workers.

Labor will not be supporting this bill. The bill is nothing but a political attack on unions, which the government sees as its political enemy, despite the fact that we've seen the Treasurer call for wages growth to help drive growth in the economy. Only a distorted and misguided political agenda will fail to see that a functional, effective union movement is important—yes, important—to the protection of the interests of lower-paid workers and the economy as a whole. This bill is another plank in the government's anti-union and anti-worker agenda, building on the attack against the union movement represented by the Heydon royal commission.

The government claims that this bill will put corporations and unions on an even footing. First, this notion is based upon a false premise that corporations and unions are the same and should be treated accordingly. Second, it is completely inaccurate—a misrepresentation. This bill imposes obligations on registered organisations and officers of registered organisations that are significantly in excess of those imposed on corporations and company directors. In reality, the government's intention throughout this bill is to attack the union movement and to take workers away from the bargaining table. This bill goes beyond the Heydon recommendations and beyond the government's election announcements. The government has no mandate for these changes or for its attack on unions and union members.

This legislation is based upon politics and ideology. It is focused on destroying unions at a time when we have a wages crisis—record low levels of wages as a share of GDP—and rising inequality, stubbornly high unemployment and over 1.1 million underemployed Australians. The government pursues this attack because it can, not because it is right and not because it's proper. The government ignores any sense of proportionality and attention to process and good governance, even by reference to corporations that purport to form the justification for this legislation. Specifically, this bill amends the Fair Work (Registered Organisations) Act 2009—the RO Act—to introduce, firstly, a fit and proper person test for holding office of a registered organisation, an RO, and mechanisms for disqualification from office; new grounds for deregistration of an RO; a mechanism for placing an RO into administration; a new test and procedural requirement for amalgamation of ROs; and minor and technical amendments.

Each of these provisions is fundamentally flawed, which demonstrates this government's shallow and base political agenda against the union movement. In its desperation to introduce this bill, the government has failed to consult, and the result of that failure is an ill-considered piece of legislation—legislation that Labor opposes and legislation that absolutely deserves to be rejected. Schedule 1, for example, allows for an application for the disqualification of an officer to be brought by the commissioner, the minister or a person with sufficient interest.

There are no conditions or safeguards against frivolous or vexatious claims. I have heard the member for Burt's contributions with respect to the issue of standing. Those contributions are most important. A competent government would not leave the issue of standing at large except, of course, if the object of this legislation was to permit each and every frivolous, vexatious and untested claim against a union to be stand to expose the respondent to unnecessary cost and inconvenience, and expose the public purse to unnecessary cost. In other words, this government is prepared to swamp the Federal Court with unnecessary, vexatious and frivolous claims upon any complaint about the deregistration of a registered organisation.

There is no justification for the minister or for those who claim a sufficient interest to have standing. It goes beyond the recommendations of the Heydon royal commission. It goes beyond what is reasonably necessary to protect the interests of the public and, again, exposes the government's political agenda. This unfair agenda is also emphasised by the fact that unlike a director subject to a disqualification application, a union official subject to the equivalent application bears the onus of satisfying the court that it would be unjust to make an order of disqualification. I'll say that again: if an application is made to the court for an order for disqualification of a registered organisation's officer, the onus is reversed. The officer needs to establish that it is unjust for that order to be made. No such impediment faces a director who has the benefit of the ordinary onus resting upon the applicant rather than the respondent. In other words, an application made by ASIC or by any other interested party—and a party entitled to make an application to the court for an order of disqualification—simply needs to satisfy the court that it's appropriate for the order to be made. It's not the case that the director needs to satisfy the court that it shouldn't be made.

Similarly, the regime for the cancellation of the registration of an organisation contained in schedule 2 of the bill is far more expansive than the regime for the winding up of companies in the Corporations Act. There is no equivalent provision in the Corporations Act that specifically and directly allows for companies to be wound up due to a history of noncompliance with the law from members, be they directors or shareholders in the case of companies. A company can repeatedly put workers' lives at risk or refuse to pay employees proper wages or entitlements and not be wound up, whereas a union could have its registration cancelled if a group of members takes unprotected industrial action.

These examples are particularly relevant to the question at issue in this legislation, particularly where the government claims equivalence—that is, a false equivalence—between corporations and unions. It is possible that in response to a company's unlawful conduct in connection with a union member's wages or conditions—in this case, clearly unlawful conduct of the most serious type where it relates to unsafe working conditions, exposing workers to the possibility of death or serious injury—a union would be subject to sanctions far exceeding those applicable to the offending corporation. Again, in circumstances where there's an unsafe workplace, a union may be properly required to bring that to the attention of the public. It may be properly required to bring that to the wider attention of the media. If this is unprotected action, the union may be subject to a striking off or a disqualification application, whereas the company that exposes its workers to death or serious injury will bear no such sanction.

This really underlies the unfair political agenda that underpins this legislation. Where is the concern for workers exposed to unsafe working conditions that might amount to breaches of a director's obligation to ensure a safe workplace? Where is the concern about the conduct of corporations and directors amounting to wage theft or the phoenixing of companies? There is an inherent unfairness in this bill trying to put corporations and unions on an even footing, where in practice they are two entirely different entities as matters of principle.

Schedule 3 of the bill significantly expands the existing regime for administration of 'dysfunctional organisations', as it describes them. It introduces mechanisms for placing unions into administration because of certain actions taken by two or more officials. Imagine placing the Commonwealth Bank of Australia into administration on the basis that Commonwealth Bank directors and executives failed to take steps to prevent breaches of anti-money-laundering legislation. The true position is that this legislation is an attack on unions and union members. Journalists who are members of the MEAA could lose their union protection, without any default on their behalf, due to the actions of two or more officials of that union. Similarly nurses, low-paid cleaners or firefighters could lose the protection they are entitled to, because their democratically elected union officials have acted without their knowledge.

What happens to the company shareholder where two or more directors have acted without their knowledge? There should be no suggestion that the CBA, ANZ or, for that matter, any public company should be wound up in response to merely unlawful conduct, even when that conduct is repeated. The answer is to enforce existing legislation and to ensure the penalties are proportionate to the offence or offences. The suspension of an organisation's rights is the suspension of the rights of its members. The free and democratic functioning of unions and employer organisations without regulatory, political or industry interference is recognised in international law. This bill fundamentally contravenes the ILO core convention 87: Freedom of Association and Protection of the Right to Organise Convention, 1948.

Schedule 4 of the bill is of particular concern. It is blatantly aimed at the proposed amalgamation between the CFMEU, the MUA and the TCFUA. The current provisions of the Fair Work (Registered Organisations) Act 2009 provide a simple procedural process for amalgamations to give effect to the wishes of respective organisations' members as expressed in a ballot conducted by the Australian Electoral Commission. It is entirely appropriate as a matter of law and, I must say, as a matter of principle. This government dishonestly claims that the competition test applied to companies seeking to merge is like a public interest test, similar to the public interest test that this bill imposes on organisations seeking to amalgamate. However, the competition test imposed upon company mergers takes into account only whether the effect of the merger would have the effect of substantially lessening competition in any market. The public interest test that this bill imposes on organisations takes into account the organisations' record of complying with the law, as well as the impact on employers and employees in the industry or industries concerned. A corporation can have an extensive record of not complying with the law, including wages theft or a poor safety and OH&S record, and will not be prevented from merging. This is a double standard which, again, confirms the government's flawed political agenda.

Let me be clear: Labor will not stand for corruption or for dishonest behaviour. We do not oppose the taking of measures to ensure that unions and officials act properly and in the best interests of their members. It is to the provisions of this bill as a mechanism for achieving that end that we look, and it is flawed. It has been made clear that we would support legislation that is properly drafted and appropriately applies to both companies and registered organisations equally. However, this bill is not well drafted. There has been no genuine consultation. The legislation is purely an attempt to attack and undermine the union movement. As I said earlier, this is at a time when we have record low wages growth and we have some within our economy, such as the Governor of the Reserve Bank, exhorting the union movement to press for increased wages. We have this government attacking the union movement, because it's on a political crusade.

Labor opposes this bill and the attempts of this government to undermine the right of all working Australians to representation in the workplace. There is no evil in the union movement; in fact, there is much good in the union movement. Nothing that this government has put up in the arguments put before this place suggests this legislation is appropriate or proportionate. It does not deserve the support of this House, and I would urge that this piece of legislation be opposed, if it please.

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