Jenny McAllister (NSW, Australian Labor Party, Shadow Cabinet Secretary) Share this | Hansard source

The bill before us, the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Bill 2020, represents a commonsense, reasonable and technical amendment to the registered organisations act, specifically the provisions in the act that deal with withdrawal from amalgamation. Currently the act allows a constituent part of an amalgamated union to withdraw from the remainder of the union. It is a democratic process involving a secret ballot of the members of that part of the union seeking to withdraw from the amalgamation. The problem is that these provisions only apply between two and five years after an amalgamation. That's a narrow window and it doesn't contemplate the possibility that a demerger could happen after that time.

The drafters of the original legislation most probably did not foresee circumstances in which an amalgamated union might wish to withdraw from the merger after five years, but, as with any partnership, there are often very good reasons that it might be better for the partners to go their separate ways and operate independently. This bill corrects that by creating an exception to this time limitation via a new appropriateness test in clause 94A of the bill. This provision allows the Fair Work Commission to grant an application for a withdrawal ballot if certain conditions are met. These conditions guide the discretion of the Fair Work Commission. A proposed new section, 94A(2), sets out these conditions, which include whether the amalgamated organisation has a record of 'not complying with workplace safety laws and any contribution of the constituent part to that record' and the likely capacity of the constituent part, after it withdraws from the merger, to promote and protect the economic and social interests of its members.

If a secret ballot of members of the constituent part seeking to withdraw from the amalgamation is successful, the legislation then sets out some clear rules for how the separation takes place. It will require the applicant to file its plans for withdrawal, which include the rules of the amalgamated union and the proposed new union, the names of the respective organisations postwithdrawal and the allocation of assets and liabilities between the amalgamated organisation and the newly registered organisation. The rules set out must avoid any overlap in coverage between the demerged entities.

The bill also makes provisions for ballots other than postal ballots conducted by the AEC. This is to recognise that some unions are currently exempted from the requirement to use the AEC for union elections. It also recognises that a number of unions have an existing custom and practice of having attendance ballots as their preferred means of collective decision-making.

I note the bill provides for a review of its operation within two years of its enactment. This is a safeguard to ensure that the bill is operating in the manner intended.

I said at the outset that this is a sensible amendment bill that reflects the fact that some mergers have gone beyond the three-year limitation that currently exists in the Fair Work (Registered Organisations) Act 2009. Like the nature of work itself, trade unions change to reflect the workforce they represent. As industries grow, shrink or simply change, so does the representation of the workers in those industries. Work and workplaces are ever-evolving, and we should recognise that. A union must be relevant and able to represent its workers. We also need to recognise the principle of freedom of association, which includes a right to join or leave a group, and that right doesn't only operate within a three-year time period. As such, Labor supports the bill.