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

I thank Senator Sheldon for his contribution, which, as I understand it, broadly relates to the obstructive industrial action ground. The ground that is set out in section 28G of the bill is not a new one. It's an existing ground in the legislation, and it was included by those opposite in their Fair Work (Registered Organisations) Act 2009. But, to be clear, the bill doesn't affect in any way the ability for registered organisations to organise and for employees to take protected—that is, lawful—industrial action. It also doesn't change the longstanding industrial relation rules under the Fair Work Act.

If the question is around employees instituting a work ban because of safety concerns and whether that is grounds for cancellation, I'm advised that it's not likely that the bill would apply to this scenario because the action by the employee in participating in a work ban would not be industrial action if it's based on a reasonable concern about an imminent risk to their health or safety and the employee does not unreasonably fail to comply with the direction of their employer to perform other available work that is safe and appropriate for the employee to perform, which goes to subsection 19(2)(c) of the Fair Work Act.

If, on the other hand, the work ban, as such, is industrial action, the bill wouldn't apply if that ban is lawful—that is, protected industrial action. So, unions that organise and workers that take lawful industrial action are not impacted by this bill because, to be clear, the bill doesn't change the long-established industrial action rules under the Fair Work Act. In addition, the ground in section 28G of the bill only captures obstructive industrial action, and that is industrial action that prevents, hinders or interferes with the activities of a federal system employer, the provision of any public service by the Commonwealth, state or territory or authority thereof, or has had or is having or is likely to have a substantial adverse effect on the safety, health or welfare of the community or part of the community. So, the ground in section 28G of the bill is not new; it is an existing ground in the legislation. It was included by those opposite in their Fair Work (Registered Organisations) Act 2009. I refer to subsections 28(1)(b) and (c). There may be an assertion otherwise, but the fact is that, with the additional safeguards being introduced in this bill—the amendments that we've moved—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.

Further to that, if I may, just on the specific example around armoured guards, we have said in relation to any number of health and public welfare concerns that the bill won't impact a person's right to stop work if it's based on a reasonable concern about an imminent risk to their health or safety. And, as I said in my previous remarks, the bill doesn't apply to lawful protected industrial action. So, unions that organise and employees that take protected work stoppages are not impacted by the bill in that context. To be very clear: even in the case of unlawful industrial action, the action has to be obstructive for it to be a ground for deregistration under the bill. That is a significant threshold, and unlawful action without those necessary features will not give rise to a ground for deregistration under the bill. In the case of the matter that Senator Sheldon has raised, as I understand it, particularly relating to the Armaguard examples, I'm advised that there are no publicly available records to suggest that any order was made in relation to this instance of industrial action, so the ground for cancellation could never apply in that context.