Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Hansard source

I think I have most of the issues that Senator Walsh has raised there. Let me start by noting for the record that, in relation to migrant workers, it was this government that established the Migrant Workers' Taskforce, chaired by Allan Fels, in 2016 as part of our then election commitment to protect vulnerable workers. In March of this year, we accepted, in principle, all of the 22 recommendations of the taskforce, including the criminalisation of serious wage exploitation and the establishment of a national labour hire scheme. So that is an important step that has been taken by the government. But I will come back to that and other matters.

Senator Walsh asked about action by early childhood educators and what would be deemed obstructive behaviour. The answer that I will give to you is very similar to the answer that I gave to Senator Sheldon and to other senators. The ground in section 28G of the bill only captures industrial action that has 'prevented, hindered or interfered with the activities of a federal system employer or the provision of any public service' by a government authority; or 'had, or is having or is likely to have, a substantial adverse effect on the safety, health or welfare of the community or a part of the community'.

It's not a new ground, Senator Walsh. I would remind the chamber it's not a new ground. It is an existing ground in the legislation. It was included by your government in the Fair Work (Registered Organisations) Act 2009, and I'd point you to sections 28(1)(b) and (c). What I would assure the chamber, as I have in other responses to senators today, is that, although you may wish to assert otherwise, the fact is that, with the safeguards, which are additional safeguards, that are being introduced in this bill and with the amendments that we've moved here today, there will actually be a higher threshold for the court to make an order than is currently the case under the existing registered organisations act. And I think it is a very important note to make, Senator Walsh, and one which you and others have not acknowledged in your questions today.

If I could come to the question of underpayment of vulnerable workers and protecting vulnerable workers, and I have said this in the chamber before this week, this government has zero tolerance for the exploitation of workers by employers. That includes underpayment of wages or any other exploitation. In fact, what we have done—particularly in relation to the support for the Fair Work Ombudsman, as well as increasing penalties against employers who do break the law by up to tenfold—are very important steps.

In the last financial year, 2018-19, the Fair Work Ombudsman, with better resourcing, recovered 64 per cent more money for workers compared with the previous Labor government's last full year in office, 2012-13. We also secured more than double the amount of court-ordered penalties against employers. We see that those higher penalties that I referred to just a moment ago are also having an impact. We've seen the first decision taking into account our new protecting vulnerable workers legislation, handed down by the court in late August, and explicitly, clearly, awarding penalties of over $125,000 against the operators of two sushi outlets in Queensland.

Importantly, the Fair Work Ombudsman's strong stance is also delivering results. The latest data that we have confirms that we have seen double the amount of litigations filed. So they are on task. They are working very hard and getting results in terms of holding employers who would do the wrong thing to account. We have also seen a 60 per cent increase in this calendar year to date, compared with the last, in the amount of money actually recovered for workers by the Fair Work Ombudsman, and that has equated to 20 per cent more employees benefiting from Fair Work Ombudsman recovery action. So, notwithstanding the fact that those opposite say that nothing has been done, the facts—absolutely incontrovertible in this case—indicate otherwise.

We are also, as I have said in relation to the Migrant Workers Taskforce, drafting legislation to introduce criminal penalties for the first time for the worst forms of worker exploitation. I've referred before in the chamber, in question time and in other discussions and in the debate today, to the Attorney-General and Minister for Industrial Relations' discussion papers focused on identifying further improvements to the protection of employees' wages and entitlements, including stronger civil penalties, greater deterrence for sham contracting and closely examining the suitability of employers' liability where entities in their supply network also flout employment laws. We're going to release a further discussion paper, seeking feedback on the compliance and the enforcement framework, and that will include canvassing faster, more efficient remedies for workers to be able to recover unpaid wages, and empowering the Fair Work Ombudsman to pursue the banning and disqualification order applications against directors of underpaying companies. I have in previous discussions today directly quoted the Attorney-General on those matters, where he has agreed with the concerns that have been raised about these issues and indicated that they are matters also of concern to him and he wishes to see the law responsive to those matters.

Senator Walsh also said that there were specific workers—the categories of which she outlined—targeted by this bill and targeted by the government. There is nothing in this bill which targets specific workers, and I want to be very clear about that. There was also, I think, a statement—I was going to say an implication, but I think it was probably more express than that—in relation to the powers and rights of unions. I want to again clarify to the chamber that the bill doesn't remove any powers that the unions have under the Fair Work Act or the Registered Organisations Act, nor does it stop them from exercising their rights under the law. It does nothing to diminish the right to form a union or join a union. It doesn't limit the legal rights of unions to organise, to bargain, to take protected industrial action, to represent their members, to investigate safety or underpayment issues, or to exercise rights of entry. We continue to regard the performance of those functions by unions as a vital element of our industrial relations framework—and that will remain the case.

That leads me again to the question of obstructive industrial action, because that was the context in which Senator Walsh cast that point—and I want to go back to that. There have been a number of examples raised today, and Senator Walsh has added to those this afternoon. We've had raised the 1970s green bans; campaigns against asbestos companies; action by armoured car workers and transport workers; and now, in this case, action by early childhood educators. But those opposite have not been able to point to any relevant court orders or any designated findings which would actually engage, enliven, the provisions of this bill. It is not even clear to me that all of those examples constitute the sort of industrial action that the bill envisages. What that means, ultimately, is that the thresholds in the bill relating to disqualification on the obstructive industrial action ground would not actually apply. Even in the case that one of these hypothetical examples, or examples, could amount to unlawful industrial action, the bill then contains additional safeguards to ensure that important civic duty or public health campaigns would not be subject to a disqualification order.

I go back to the basic requirements of what the action would have to look like to be subject to a disqualification order and for it to be a ground for deregistration under the bill. That requires that it must have prevented, hindered or interfered with the activities of an employer or any relevant public service, or had a substantial adverse effect on the safety, health or welfare of the community. That is a significant threshold. Unlawful industrial action without these features will not give rise to a ground for deregistration under the bill. Under the bill and the amendments that we are talking about this afternoon there will be a higher threshold before the court can make an order than is currently the case under the existing Registered Organisations Act.

And, again, I remind those opposite that the threshold that is in the existing Registered Organisations Act is your threshold—your threshold, which has been in place for 10 years. This bill will provide a higher threshold, and those additional safeguards in that higher threshold include that the Registered Organisations Commissioner must satisfy the court that it would not be unjust to cancel the registration, taking into account the nature of the matters, the action taken in relation to those matters, the best interests of the members and any other matter, including the public health objectives of such actions. The court is prohibited from making the order unless it's satisfied that, having regard to the gravity of the matters constituting the ground, disqualification would not be unjust—and only the Registered Organisations Commissioner will have standing to bring that application.

Senator Walsh also raised matters in relation to paperwork, and I am happy to go back to that because a number of senators have done so. Let me again be very clear: it is simply not true that a union could be deregistered for merely submitting paperwork late. Accidentally lodging paperwork late will not mean a union is deregistered. There is no conduct that will automatically result in deregistration under the bill. It is all at the discretion of the court, which cannot deregister a union if it would be unjust to do so. In fact—and I know that facts are not what those opposite are dealing with—lodging paperwork late will not even in and of itself give rise to a possible ground for cancellation. I challenge those opposite to point to any provision in the deregistration schedule of the bill that provides for a specific ground for deregistration of an organisation for three minor paperwork breaches. I challenge them. They can't do it. They haven't done it all day and they are not able to do it now.

Briefly on mergers, we see in the government amendments a limitation of the circumstances in which a proposed amalgamation of registered organisations will be subject to a public interest test, as Senator Walsh asked about. Only some amalgamations will be subject to this test. Frankly, there will be mergers of organisations with a long history of breaking Australia's industrial relations law and the potential to spread law-breaking cultures to other organisations that should be subject to a public interest test. The amendments provide that a full bench of the Fair Work Commission will only apply the public interest test in circumstances where at least one of the organisations wishing to amalgamate has 20 or more compliance record events that have occurred in the last decade. That is only organisations that have a significant number of compliance record events during this time period. Only they will be subject to the additional oversight of the Fair Work Commission by way of the public interest test provided for in the bill.

As it stands, I'm advised there are only three organisations that clearly exceeded the requisite number of compliance record events in the preceding decade—one we spoke about earlier today, the CFMMEU, and the other two are the TWU and the Musicians Union of Australia. That means that approximately 96 per cent of registered organisations would not be subject to the public interest test as it stands, and even those four organisations that would currently be subject to it will eventually not be if they cease breaking the law, if they cease unlawful actions. Those points, I think, are important to place on the record.

The senator also asked me about the application of the public interest test in relation to corporate matters. We know that section 50 of the Competition and Consumer Act provides that in certain circumstances a merger can't go ahead if it would substantially lessen competition in any market unless the ACCC authorises it. The ACCC can only authorise a merger if it would not substantially lessen competition or the merger would benefit the public and this benefit would outweigh any detriment to the public. So there are public interest tests on both sides of this coin. I am happy to provide further information to the chamber.