Don Farrell (SA, Australian Labor Party, Shadow Special Minister of State) Share this | Hansard source

Labor opposes the Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 in the strongest possible terms. It's bad law and it's bad policy. Despite its name, this legislation has nothing to do with integrity but everything to do with ideology, opportunism and this government's pathological hatred of unions and the workers they seek to represent and protect. It's an attack on the union movement, on union officials and on union volunteers. It's an attack on Australian workers and an attack on freedom of association and democracy itself.

And what will this bill ensure? It will ensure less safe workplaces. It will ensure more wage and superannuation theft. It will ensure a less effective union movement—more preoccupied with getting its paperwork right than doing the job which has delivered better wages and conditions for workers in Australia for over a century. I would like to refer to the following quote:

The Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 creates a number of sweeping powers for interference in trade union organisations, which are not only in violation of the principles of freedom of association, but are also highly likely to produce arbitrary and disproportionately punitive outcomes damaging to Australia's industrial relations system. Harmful to workers, undermining to trade union democracy, and of no tangible benefit to the promotion of harmonious industrial relations, these measures are … incompatible with Australia's commitments under the ILO's Freedom of Association and Protection of the Right to Organise Convention, 1948 … and the Right to Organise and Collective Bargaining Convention, 1949.

These are not my words but those of the International Centre for Trade Union Rights, in their powerful submission to the Senate Education and Employment Legislation Committee, which conducted an inquiry into this legislation. I and my Labor colleagues, led by Senator Pratt, participated fully in that hearing and heard witness after witness give compelling evidence as to why this legislation was wrong, how it would damage the Australian union movement and, most importantly, how it would hurt Australian workers.

The ensuring integrity bill 2019 is the latest manifestation of the Liberal Party of Australia's long-held ideological obsession with and hatred of the union movement in this country, and it's happening at a time of unprecedented wage theft, insecure work and increasing casualisation and fragmentation of work—a time when we need a strong union movement more than ever.

We don't need to look back too far to see the Liberals' form on this. We only have to look back to John Howard's Work Choices—which I'm sure you remember very well, Mr President. Work Choices was an attack on employees' individual rights in the workplace and, as we all know, a policy that was comprehensively rejected by the Australian people in 2007 in the election where you came to this place, Mr President. After the 2007 election all we heard from the Liberals was 'Work Choices is dead'. They had listened and they had heard the message from working Australians who wanted their rights at work to be protected.

But what happens when the Liberals return to government? We get this bill, the ensuring integrity bill—because, after all, going after workers through Work Choices was ultimately unsuccessful. So let's go after the union movement itself—diminish its capacity to campaign and organise, tie up its officials in red tape and vexatious litigation and hope it won't have the resources or the people left to fight the kinds of challenges that I've outlined above.

This, of course, is their second run at it. The first ensuring integrity bill, from 2017, was rejected by the Senate, seen for what it was: a series of draconian and extreme measures intended to weaken the trade union movement. It was rejected but not thrown out by the Liberals; instead it was left on the shelf in case it could be useful again. When the government found themselves unexpectedly returned to government, without a policy agenda, with an emboldened conservative backbench calling for action on their pet subjects and with a union official in the media at the time for all the wrong reasons, they picked up the old bill and blew the dust off it. The new industrial relations minister, Christian Porter, gave it a bit of spit and polish to make it look like a new, improved version. And there we have it: the ensuring integrity bill 2019, the bill we're debating today.

'If this bill is just about ensuring integrity, why is the Labor Party so opposed to it? Don't companies have the same kinds of laws applied to them?' These are the kinds of things we hear from employer groups and construction peak bodies, many of whom are not themselves registered organisations and are therefore not subject to this regulation. One of the main objections to this bill is that it's simply unnecessary. There's already an effective and longstanding regime for the disqualification of union officers and the deregistration of unions. The act was amended as recently as 2017 to provide that a union official could be disqualified on the basis of any civil penalty breaches of the Fair Work (Registered Organisations) Act. That appears in section 307A of that legislation. There are currently a range of offences which automatically disqualify a person from standing for or holding office, including fraud, dishonesty and the intentional use of violence or damage to property. A person who holds an office and is convicted of a proscribed offence must apply to a court for leave to hold office in any organisation. In other words, the mechanism is already there to deal with misbehaviour by union officials.

The current deregistration provisions allow the minister, or a person interested, to apply to deregister a union on a large number of grounds, including breaching the terms of award or actions that have a substantial adverse effect on the health and safety or the welfare of the community, or part of the community. I think it's important to note that there's no equivalent section or legislation for companies, and we've seen that this week with the developments at the Westpac bank. You would think this was a fairly serious legislative armoury for a government to have for dealing with alleged union breaches, but apparently it's not. Schedule 1 of the 2019 bill contains new and expanded grounds for disqualification. But, worse, the new grounds only require one or at most two instances of unlawful conduct for an application to be able to be made. It doesn't have to be repeated. It doesn't have to be serious or wilful misconduct.

In the bill in its current form, the minister or any person with sufficient interest, which could include employers or employer organisations, can apply to the courts for orders disqualifying a person from holding office in a union. This would include a technical breach, such as not giving the right notice when inspecting a dangerous worksite or investigating the rampant underpayment of workers. On the other hand, directors of companies that recklessly expose workers to risk of serious illness, injury or death, or who engage in systematic wage theft, are not exposed to disqualification.

Contrary to the government's claims, the requirements imposed by the bill go further than the requirements on corporations. In other words, there's no comparison between the additional obligations that this legislation imposes on unions and those obligations that are imposed on companies. In the bill, the grounds for disqualification from holding office in a registered organisation are broader than the grounds for disqualification of company directors. Again, in other words, there's no comparison between the penalties that apply to unions and those that apply to companies, under this legislation. The penalty for the offence of a disqualified person continuing to hold office or influence at a registered organisation is double that of the equivalent provision in the Corporations Act—double! So it is twice the penalty again. There is no comparison and no equivalence between what applies to companies and what, if this legislation gets through, will apply to unions. This bill also allows courts to disqualify union officers for conduct unrelated to their union role. There is no equivalent for the disqualification of a company director, so again there is no comparison between what applies to company directors and what this legislation is proposing to do to union officials.

Schedule 2 of the bill provides new and expanded grounds for deregistration. Again, the new grounds only require one or at most two instances of unlawful conduct for an application to be able to be made. It doesn't have to be repeated, serious or wilful misconduct. It can involve a single instance of unprotected industrial action. Yet there is no equivalent for companies to be deregistered if they breach industrial laws or work health and safety laws in this country. Again, there is no equivalence between the obligations that this legislation is going to apply to unions and what applies to corporations. In the bill as it stands, the minister or any person with sufficient interest can apply to the courts to deregister a union or for other extreme and intrusive orders. Again, no equivalent provisions exist for corporations or their directors. There are already a wide range of circumstances in which the court can order a union to be deregistered, but this bill significantly expands these.

Schedule 3 of the bill deals with the administration of so-called dysfunctional organisations. In the current bill, the minister or any person with sufficient interest is given standing to put a union into administration. Once again, there is no equivalent for companies. The existing act provides for the court to make remedial orders to reconstitute a union or a branch that has ceased to function effectively. Worse, despite claims that the bill is not retrospective and everyone starts with a so-called clean slate, the conduct of union officers and the union's records of compliance are grounds for applying for administration. In other words, there's no limit on retrospectivity. Past breaches are counted. The minister can apply to have a union completely restructured or have its rights limited—again, there's no equivalent for companies.

Finally, we have schedule 4 of the bill, originally drafted in 2017 to try to stop the merger of the CFMEU, the MUA and the TCFUA by introducing a so-called public interest test. The bill, in its current form, places a public interest test on mergers of organisations, taking away from members the right to choose. Under this measure, mergers could be blocked by the Fair Work Commission if this test is not met. The government, lobby groups and even big businesses themselves can seek to block a union merger, even if the union merger is freely supported by the union members.

There is no justification for preventing amalgamations. If the members of two unions vote to amalgamate then it's up to them. This goes to the heart of the democratic principle of freedom of association. This proposal is not a question about whether unions are representative but an attack on the unions themselves. It denies members free choice about who leads their organisation and how it's going to be run.

The minister and the employer groups try to claim that this is some sort of equivalence with the public interest test associated with company mergers. That is totally false, because there are no obligations whatsoever for two companies to notify their corporate regulator. Companies merge with and take over each other every day without any scrutiny by the regulator, ASIC. There's not even a mandatory notification scheme that requires mergers to be notified to ASIC. Companies can elect to notify, if they think there may be a question mark about whether the merger will substantially lessen competition. But, if ASIC decides that that could be the case, a public benefit test is applied to see whether there are overall benefits of the merger. Whether the company or its officers have a record of complying with the law or not is not considered as part of this test. In contrast, in the current version of the bill, the public interest test would be mandatory for all union amalgamations, and if they failed this test then they'd be unable to amalgamate. This so-called public interest test includes technical breaches of civil laws—for example: stopping work for a nurse-patient ratio; no 24-hour notice in sweatshops; dangerous worksites; and the list goes on.

As to the amendments circulated by the crossbenchers: to their credit, the crossbenchers have recognised that this is fundamentally a bad piece of legislation and a bad piece of public policy. I acknowledge that they've done their best to try to ameliorate some of the many dangerous and extreme elements of the bill.

Notwithstanding this effort on the part of the crossbenchers, Labor will oppose this bill in whatever form it takes. This bill has no redeeming features whatsoever and should be rejected in its entirety. No matter what assurances the government may have given to the crossbenchers to ensure their support, this legislation affects the day-to-day operation of every single union in this country. Unions, their members and the workers they represent will not thank the Senate for this legislation when they cannot access potentially unsafe workplaces or workers needing advocacy and protection or when the union is fearful that a breach under right of entry could lead to their disqualification or, worse, to the union being deregistered. The only people who may thank the crossbenchers for supporting this legislation are people like the Liberal Party donor and union hater Jerry Hanson, who wants to be able to run unsafe workplaces with impunity, engage in wage theft with impunity and simply pay fines for these offences—just another cost of doing business. Not only is this bill undemocratic and draconian; it's also unnecessary. I urge my fellow senators to oppose this legislation in its entirety.