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

The opposition makes it very clear that it's totally opposed to this legislation. The fact that we're in the committee stage and are dealing with amendments, particularly amendments by the government, is a pretty good indication that there's something crook about this bill. The government will be moving amendments. While they will improve the bill—it won't be as bad as it was going to be—the fact of the matter is—

Louise Pratt (WA, Australian Labor Party, Shadow Assistant Minister for Manufacturing) Share this | Link to this | Hansard source

Doesn't make it right!

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

I take that interjection from Senator Pratt. The fact of the matter is that a bad bill can't be made better with these amendments. This legislation is designed to deal with integrity. It is trying to improve integrity in one section of the community. But what do we know about the integrity of this government, the government that's proposing this legislation? The fact of the matter is that a government with no integrity can't seriously introduce a piece of legislation to improve integrity in the body politic of Australia. Obviously, we have a government that is well past its use-by date—it's getting up to seven years. The reality is that each day that goes by in this parliament we see another example of a government that has no interest in integrity. If it did, then when the first issues regarding Minister Taylor arose—where either he, his office or somebody else sent to a New South Wales newspaper a letter clearly detailing false and misleading allegations—Minister Taylor would have immediately resigned. That is what would have happened if the minister had had some integrity. But, even if he wasn't prepared to do that, if we had a Prime Minister who had some integrity, then that Prime Minister would have called upon the minister to immediately tender his resignation or, at worst, step aside while those issues were being dealt with. But what do we see? Further indications that this government is not a government of integrity. Therefore, if it has no integrity, how can it introduce a bill into this parliament that seeks to impose so-called integrity measures on other parts of the community?

There is a police investigation into Minister Taylor about his behaviour regarding this document. Forget about the source of the complaint; the reality is that we now have a senior minister of the Crown being investigated by the New South Wales Police Force. When that became clear, that would have been the first opportunity, of course, for Minister Taylor to stand aside or resign. I would have thought resignation was appropriate in these circumstances, but he could have stood aside. That would be the integrity thing for this government to do. But what's happened? The minister has stayed in his place—no suggestion, whatsoever, that he's going to move. So, what is the integrity thing to do for a government? The Prime Minister should have gone and had a quiet little conversation with Mr Taylor and said, 'Look, you're now under a police investigation. Serious issues have been raised.' Bear in mind that these are on top of all the other allegations that have been raised about this particular minister over the last six months. This is not a first offence, let's be clear. There are a whole series of allegations about this particular minister and about conflict of interest. So he's not coming to this debate as a cleanskin. The integrity thing to do would be for the Prime Minister to get up and say, 'Okay, you've got this investigation happening. Either resign or stand aside while we get the results of the investigation.' That would have been the correct thing to do.

What does this Prime Minister do in these circumstances? Does he call upon the minister to resign? No. He rings his good mate, his next-door neighbour—I forget who took whose rubbish bins out, whether it was the Prime Minister taking the police commissioner's rubbish bins out or the police commissioner taking the Prime Minister's rubbish bins out, but either way it was completely inappropriate for a prime minister to ring a chief of police about investigations into one of his ministers. Firstly, the Prime Minister should have been the one making the call about Minister Taylor. He should have been the one saying, 'Look, this is inappropriate.' He's done nothing in those circumstances. What a complete breach of propriety for the Prime Minister to seek to put pressure on by ringing the police commissioner in New South Wales. That's a completely inappropriate thing for the government to do.

We talk about integrity. The government are saying they want to improve integrity in the body politic of Australia—they're particularly focused on unions—but how do they have any credibility when all of these things are happening within their government on issues specifically in respect of integrity, yet they do nothing about it? How can the Australian community take the government seriously? When they refuse to take integrity measures in respect of their own government, how can anybody believe that they'll be serious about integrity measures within trade unions and within the Australian working community?

Of course, the fact of the matter is that they're not serious about this. They are simply not serious about this legislation. What they are after is not improving integrity; what they are after is a reintroduction of Work Choices. Former Prime Minister Tony Abbott made it very clear what the Liberal Party position was on Work Choices. He said it was 'dead, buried and cremated' and he went to an election with that very promise—he promised the Australian workforce that the Liberal Party had learnt its lesson from the 2007 election. In fairness to Prime Minister Abbott, he did oppose Work Choices in the Howard government. I think he was the only minister who opposed it. So, I think that, when he had the opportunity to kill, bury and cremate Work Choices, that is what he genuinely wanted to do, and he took it to the Australian people. But Work Choices is now roaring back. It's like a zombie. It should have been cremated, but, zombie-like, it has come back. It has been brought back, on this day, in order to reintroduce all of those things that sought to weaken unions but, more importantly, deny ordinary working Australians the opportunity of improving their wages and conditions.

What do we know about Australian industry? I know that you, Temporary Chair Griff, have a background in retail. You've seen all of the figures that have been coming out about retail sales. Retail sales in this country have flatlined. That's always a pretty good barometer of what's happening in the community. Why are retail sales flatlining in this country, Temporary Chair? You know the answer: people have no extra spending money to go into the shops and buy things. Wages, under this government, have stagnated in this country. And there are no signs anywhere that that's about to change.

How do I know that? Well, when the Reserve Bank starts dropping interest rates, what do you know? You know that the economy is in big trouble. What is the Reserve Bank saying at the moment? It hasn't stopped cutting interest rates. It's got another two in its arsenal. It says it's not going to go below 0.25, but it's got another two. That's a sign that this Australian economy is in heaps of trouble. It's in deep trouble.

So, at a time like this, a good and sensible government would be doing a couple of things. It would start trying to ramp up the economy—start trying to get the economy moving again. But also it would be supporting workers to get wage rises. That's what they'd be doing. They be out there doing every single thing they could to ensure that workers were able to go out and bargain with their employers or apply to awards to get increases, so that ordinary working people in this country could, for the first time under this government, start getting decent wage rises. But no! What is this government seeking to do? By virtue of this piece of legislation, what this government is seeking to do is to ensure that the very organisations to whom we give the job of getting wage rises in this country are going to be bogged down in paperwork. And, if that paperwork turns out to be a bit tardy or a bit mistaken, those unions are going to lose their registration. That's a preposterous thing to do in circumstances where the economy is travelling so badly. The government should be doing exactly the opposite of what this legislation is proposing to do. The government should be getting out there and saying to unions: 'Go as hard as you can, because we want to start stimulating this economy. We want to get more people employed.'

That's the other thing I didn't talk about: what's happening with unemployment. I know that you, Temporary Chair Griff, know this is true because of what is happening in your own state of South Australia. Unemployment is rising. So, wages are stagnating, retail sales figures are flatlining and, of course, unemployment is going up. All of the things that this government ought to be doing right now to get the economy moving will be set back and made more difficult if this legislation passes, because, if unions are tied up doing paperwork or tied up in the courts by virtue of all of the new powers that employers will have to stop them doing their job, then the reality is that wages won't just stagnate like they're doing at the moment; they'll simply go backwards, unemployment will continue to rise and the economy will spiral down and down.

I say to the crossbench, and I can't see too many of them—yes, of course, you, Mr Temporary Chair; I've spotted you—rethink what it is you're doing here. If the government has to introduce all of these amendments to their own legislation, that's a pretty good clue that there's something really wrong with the legislation in the first place. While they might ameliorate some of the absolutely worst aspects of the legislation, they don't solve the problem. This bill certainly doesn't restore integrity to unions or to workers who rely on those unions; it simply ties these people up in a whole lot of paperwork, litigation and conflict when they should be doing the very thing that this economy absolutely needs right at the moment—that is, stimulating wage growth, getting the economy moving again and ensuring that unemployment starts going down rather than going up. I see you nodding quite a bit there, Temporary Chair. I hope that's an indication that you're agreeing with everything I'm saying, because we need to ensure, when this bill is voted on sometime after 4.30 this afternoon, that exactly what Tony Abbott said should happen to Work Choices happens here too: this bill should be 'dead, buried and cremated'.

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

by leave—I move government amendments (1) to (48) on sheet RC114 together:

(1) Schedule 1, item 8, page 5 (line 23), omit ", or another country,".

(2) Schedule 1, item 11, page 6 (lines 10 and 11), omit ", the Minister or another person with a sufficient interest".

(3) Schedule 1, item 11, page 6 (lines 15 to 20), omit subsection 222(1), substitute:

(1) The Commissioner may apply to the Federal Court for an order under this section if the Commissioner considers that any of the grounds for disqualification set out in section 223 apply in relation to a person.

Note: A person who reasonably believes that a ground applies may refer the matter to the Commissioner (see section 223A), but the Commissioner does not need a referral to make an application under this section.

(4) Schedule 1, item 11, page 6 (line 23), omit "the Court".

(5) Schedule 1, item 11, page 6 (line 24), before "is satisfied", insert "the Court".

(6) Schedule 1, item 11, page 6 (line 26), omit "does not consider that it would be unjust", substitute "the Commissioner satisfies the Court that it would not be unjust".

(7) Schedule 1, item 11, page 6 (after line 31), after subsection 222(2), insert:

(2A) The Court must not make the order unless it is satisfied that, having regard to the gravity of the matters constituting the ground, disqualification would not be unjust.

(8) Schedule 1, item 11, page 7 (line 4), omit subsection 222(4).

(9) Schedule 1, item 11, page 7 (lines 6 to 10), omit subsection 223(1), substitute:

Designated finding or contempt in relation to designated law

(1) A ground for disqualification applies in relation to a person if:

(a) a designated finding within the meaning of paragraph 9C(1) (a) (criminal) is made against the person (other than a designated finding that relates to an offence covered by subsection (4)); or

(b) both:

  (i) one or more designated findings within the meaning of paragraph 9C(1) (b) (civil) have been made against the person within the last 10 years (other than a designated finding that relates to a contravention covered by subsection (4)); and

  (ii) the maximum penalty, or combined total of the maximum penalties, for the contravention or contraventions to which the designated finding or findings relate is, or is equivalent to, at least 180 penalty units (see section 4AA of the Crimes Act 1914 for the value of a penalty unit); or

(c) the person is found to be in contempt of court in relation to an order or injunction made under a designated law.

(10) Schedule 1, item 11, page 7 (lines 20 to 30), omit subsection 223(3), substitute:

Multiple failures to prevent contraventions etc. by organisation

(3) A ground for disqualification applies in relation to a person if:

(a) more than one of the following is made against any organisation in relation to conduct engaged in while the person is an officer of the organisation:

  (i) a designated finding within the meaning of paragraph 9C(1) (a) (criminal);

  (ii) a designated finding within the meaning of paragraph 9C(1) (b) (civil);

  (iii) a finding that the organisation is in contempt of court in relation to an order or injunction made under a designated law; and

(b) at least one of them is covered by subparagraph (a) (i) or (iii); and

(c) the person failed to take reasonable steps to prevent the conduct.

(11) Schedule 1, item 11, page 7 (after line 30), after subsection 223(3), insert:

(3A) A ground for disqualification applies in relation to a person if:

(a) 2 or more designated findings within the meaning of paragraph 9C(1) (b) (civil) have been made against any organisation within the last 10 years in relation to conduct engaged in while the person is an officer of the organisation; and

(b) the combined total of the maximum penalties for the contraventions to which the designated findings relate is, or is equivalent to, at least 900 penalty units (see section 4AA of the Crimes Act 1914 for the value of a penalty unit); and

(c) the person failed to take reasonable steps to prevent the conduct.

(12) Schedule 1, item 11, page 8 (line 1), omit the heading to subsection 223(4), substitute:

Breach of directors ' and officers ' duties

(13) Schedule 1, item 11, page 8 (before line 3), before paragraph 223(4) (a), insert:

(aa) a designated finding is made against the person and it relates to an offence against, or a contravention of, a provision of Division 2 of Part 2 of Chapter 9 (general duties in relation to the financial management of organisations); or

(14) Schedule 1, item 11, page 9 (after line 5), at the end of Division 3, add:

223A Referral to Commissioner

(1) If a person (the referrer) reasonably believes that a ground set out in section 223 applies in relation to a person, the referrer may refer the matter to the Commissioner.

(2) The referral must:

(a) be in writing; and

(b) identify and provide contact details for the referrer; and

(c) set out the basis for the reasonable belief mentioned in subsection (1).

(3) The Commissioner may, but is not required to, take action in relation to the referral.

Note: If the Commissioner considers that a ground set out in section 223 applies in relation to a person, the Commissioner may apply for an order under section 222 (disqualification orders).

(15) Schedule 1, item 14, page 11 (lines 11 and 12), omit ", Minister, or a person with a sufficient interest".

(16) Schedule 1, item 17, page 12 (line 8), omit "223(1) (b)", substitute "223(1) (c)".

(17) Schedule 1, item 17, page 12 (line 14), omit "223(3) (a) (ii)", substitute "223(3) (a) (iii)".

(18) Schedule 1, item 17, page 12 (after line 17), after paragraph 17(2) (b), insert:

(ba) for the ground mentioned in subsection 223(3A):

  (i) a designated finding made in relation to conduct engaged in after commencement; and

  (ii) a failure, after commencement, to take steps as mentioned in the subsection;

(19) Schedule 2, item 4, page 15 (line 7), omit "An applicant", substitute "The Commissioner".

(20) Schedule 2, item 4, page 15 (line 8), omit "an applicant", substitute "the Commissioner".

(21) Schedule 2, item 4, page 15 (lines 11 to 13), omit "only if the organisation satisfies the Court that cancellation would be unjust", substitute "if the Commissioner fails to satisfy the Court that cancellation would not be unjust".

(22) Schedule 2, item 4, page 15 (line 23) to page 16 (line 14), omit sections 28 to 28B, substitute:

28 Application for cancellation of registration

The Commissioner may apply to the Federal Court for an order cancelling the registration of an organisation, if the Commissioner considers that any one or more of the grounds in Division 3 exist in relation to the organisation.

Note: A person who reasonably believes that a ground exists may refer the matter to the Commissioner (see section 28HA), but the Commissioner does not need a referral to make an application under this section.

28A Application for alternative orders

The Commissioner may apply to the Federal Court for any one or more of the orders under Division 5 in relation to an organisation, if the Commissioner considers that any one or more of the grounds in Division 3 exist in relation to the organisation.

Note: A person who reasonably believes that a ground exists may refer the matter to the Commissioner (see section 28HA), but the Commissioner does not need a referral to make an application under this section.

28B Multiple applications

(1) Nothing in this Part prevents the Commissioner applying under section 28 for cancellation of registration and under section 28A for alternative orders in relation to the same organisation.

(2) If the Commissioner does so, the Court must deal with the applications together.

(23) Schedule 2, item 4, page 16 (lines 24 to 30), omit paragraph 28C(1) (b), substitute:

(b) affairs of the organisation or a part of the organisation have been or are being conducted in a manner that is contrary to the interests of the members of the organisation or part as a whole; or

(24) Schedule 2, item 4, page 17 (line 30), after "units", insert "(see section 4AA of the Crimes Act 1914 for the value of a penalty unit)".

(25) Schedule 2, item 4, page 19 (after line 28), at the end of Division 3, add:

28HA Referral to Commissioner

(1) If a person reasonably believes that a ground in this Division exists in relation to an organisation, the person may refer the matter to the Commissioner.

(2) The referral must:

(a) be in writing; and

(b) identify and provide contact details for the person making the referral; and

(c) set out the basis for the reasonable belief mentioned in subsection (1).

(3) The Commissioner may, but is not required to, take action in relation to the referral.

Note: If the Commissioner considers that a ground in this Division exists in relation to an organisation, the Commissioner may apply for orders under either or both Divisions 4 and 5 (cancellation of registration and alternative orders) in relation to the organisation.

(26) Schedule 2, item 4, page 20 (line 5), omit "must", substitute "may".

(27) Schedule 2, item 4, page 20 (lines 9 and 10), omit "organisation does not satisfy the Court that it would be unjust to cancel its", substitute "Commissioner satisfies the Court that it would not be unjust to cancel the organisation's".

(28) Schedule 2, item 4, page 20 (lines 18 and 19), omit "organisation satisfies the Court that it would be unjust to cancel its", substitute "Commissioner fails to satisfy the Court that it would not be unjust to cancel the organisation's".

(29) Schedule 2, item 4, page 20 (after line 22), after subsection 28J(1), insert:

(1A) The Court must not cancel an organisation's registration unless it is satisfied that, having regard to the gravity of the matters constituting the ground, cancellation would not be unjust.

(30) Schedule 2, item 4, page 21 (lines 11 and 12), omit "organisation satisfies the Court that it would be unjust", substitute "Commissioner fails to satisfy the Court that it would not be unjust".

(31) Schedule 2, item 4, page 21 (after line 12), after subsection 28L(1), insert:

(1A) The Court must not make an order under this Division unless it is satisfied that, having regard to the gravity of the matters constituting the ground, the order would not be unjust.

(32) Schedule 2, item 4, page 22 (line 9), omit subsection 28M(3).

(33) Schedule 2, item 9, page 24 (lines 24 to 26), omit paragraphs 343(2) (a) to (c).

(34) Schedule 4, item 2, page 34 (lines 19 to 22), omit the paragraph beginning "Before an amalgamation can take effect", substitute:

Before an amalgamation can take effect, the FWC must decide whether the amalgamation should be subject to a public interest test. The amalgamation does not take effect if the FWC decides that the public interest test is to apply to the amalgamation and that the amalgamation fails that test.

(35) Schedule 4, item 6, page 35 (lines 13 to 15), omit subsection 67(4), substitute:

(4) Subsection (2) does not authorise the FWC to dispense with deciding under subsection 72A(1):

(a) whether the test in paragraph 72A(1) (b) (the public interest test) is to apply to a proposed amalgamation; or

(b) if the public interest test is to apply to the proposed amalgamation—whether the amalgamation is in the public interest.

(36) Schedule 4, item 7, page 35 (lines 19 to 27), omit section 72A, substitute:

72A Decision whether the public interest test is to apply to the proposed amalgamation and, if so, whether the amalgamation passes that test

(1) Before fixing an amalgamation day under section 73 for a proposed amalgamation, the FWC must:

(a) decide whether the test in paragraph (b) (the public interest test) is to apply to the amalgamation; and

(b) if the public interest test is to apply to the amalgamation—decide whether the amalgamation is in the public interest.

Note 1: The FWC must have regard to the matters in section 72D in deciding whether the amalgamation passes the public interest test.

Note 2: An amalgamation does not take effect if the FWC decides that the public interest test is to apply to the amalgamation and that the amalgamation fails that test (see section 72F).

(2) The FWC must, and may only, decide under paragraph (1) (a) that the public interest test is to apply to the amalgamation if there is information before the FWC that at least 20 compliance record events have occurred for at least one of the existing organisations concerned in the amalgamation within the 10 year period ending on the day the application, or the most recent application, under section 44 is lodged in relation to the amalgamation.

Note: The FWC has ways of informing itself about whether events have occurred (see section 590 of the Fair Work Act).

(3) The FWC may make decisions under subsection (1) at any time after an application under section 44 is lodged with the FWC in relation to the amalgamation.

72AA Writing and publication requirements for these FWC decisions

(1) The FWC's decisions under subsection 72A(1) must be in writing.

(2) The FWC must give written reasons for any decision it makes under that subsection.

(3) Such a decision, and the reasons for it, must be expressed in plain English and be easy to understand in structure and content.

(4) The FWC must publish such a decision, and the reasons for it, on its website or by any other means that the FWC considers appropriate. The FWC must do so as soon as practicable after making the decision.

(5) Subsections (1) and (4) do not limit the FWC's power to put decisions in writing or publish decisions.

(37) Schedule 4, item 7, page 35 (line 29), omit "(1) The FWC must", substitute "If the public interest test in paragraph 72A(1) (b) is to apply to a proposed amalgamation, the FWC must".

(38) Schedule 4, item 7, page 36 (lines 1 to 3), omit paragraph 72B(1) (a), substitute:

(a) fix a time and place for hearing submissions in relation to:

  (i) the matters mentioned in subsection 72D(1) (record of compliance with the law); and

  (ii) whether the amalgamation is otherwise in the public interest; and

(39) Schedule 4, item 7, page 36 (lines 9 to 18), omit subsection 72B(2).

(40) Schedule 4, item 7, page 37 (lines 3 to 10), omit subsection 72C(2), substitute:

(2) The FWC must have regard to any submissions made.

(41) Schedule 4, item 7, page 37 (line 13), after "deciding", insert "under paragraph 72A(1) (b)".

(42) Schedule 4, item 7, page 37 (line 16), omit "and age", substitute ", age and gravity".

(43) Schedule 4, item 7, page 37 (line 19), omit "section 72A", substitute "paragraph 72A(1) (b)".

(44) Schedule 4, item 7, page 37 (line 23), after "deciding", insert "under paragraph 72A(1) (b)".

(45) Schedule 4, item 7, page 38 (line 30), omit "section 72A", substitute "paragraph 72A(1) (b)".

(46) Schedule 4, item 7, page 39 (line 2), omit "section 72A", substitute "paragraph 72A(1) (b)".

(47) Schedule 4, item 9, page 39 (lines 11 and 12), omit "the FWC has decided under section 72A that the amalgamation is in the public interest", substitute "after concluding its decisions under section 72A the FWC is not prevented by subsection 72F(1) from fixing an amalgamation day for the amalgamation,".

(48) Page 42 (after line 22), at the end of the Bill, add:

Schedule 6—Functions of the Commissioner

Fair Work (Registered Organisations) Act 2009

1 Section 329AB

Before "The Commissioner", insert "(1)".

2 At the end of section 329AB

Add:

(2) In carrying out the Commissioner's function of promoting efficient management of organisations and high standards of accountability of organisations and their office holders to their members, the Commissioner must give priority to matters that raise serious or systemic concerns.

The government is moving a number of amendments to the bill, to respond to responsible and constructive suggestions from senators and from stakeholders, aimed at ensuring the bill targets only sufficiently serious misconduct engaged in by registered organisations and their officials. Specifically, the amendments will:

That contrasts dramatically with the approach of those opposite, which is to pretend that there is nothing to see here, that there is nothing wrong with the system, that it requires no adjustment or amendment. Apparently we should not require registered organisations to operate within the law and be responsive to the law in a rule-of-law nation. This government does not agree with that view, so I have moved those amendments, and I table a supplementary explanatory memorandum relating to the government amendments to be moved to the bill.

Tony Sheldon (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Isn't it interesting that yesterday we heard this whole Trumpism of fake news. Somehow there was a mandate to turn around and make these sorts of changes to the representation of working people in this country—to rip out their rights to democratically decide about unions amalgamating; to take away their democratic right to say who their leadership is; to turn around and put substantial resources, in case after case that will result from this point system that is being proposed, into defending what obviously, even to some courts, will be defendable cases. But those substantial resources will be taken away from the fight against wage theft.

Six billion dollars were stolen in the construction industry. We have a government who has not acted on the task force about the exploitation of migrant workers. We see today that, in the last three years, temporary workers in this country have risen from 1.8 million to 2.2 million—where people have been grossly exploited. In all the studies carried out, average incomes are well below the minimum wage. And yet the government turns around and says that the people who can hold all that to account have to be tied up in defending what are defendable cases, 'Don't worry; the court will make a decision about what is in the public interest!'

This is directed at the minister. When I give these examples, I want to hear from the minister whether these are legitimate, defendable cases and why are unions going to be paying for legitimate, defendable cases? The following examples are on industrial action, taking in regard the issue of public safety. As is often the case, working Australians in democratically elected unions use industrial action to draw the public's attention to issues of safety in workplaces that affect not only members but also the public at large. These sorts of actions are deemed illegal and unprotected by the Fair Work Act. They are!

Now, under the government's amendments to the ensuring integrity bill, unions and their officials would be punished twice: first, with fines that already exist and, second, with a punitive demerit system resulting in the disqualification of officials and deregistration of whole unions. These punitive fines would soak up members' money and divert resources from the core business of unions, which is representing members and lifting the boat for all Australians on income. If a union accrues more than 900 demerit points in a 10-year period, it will allow applications to be made for a union official's disqualification or the union's deregistration. These amendments are at odds with the core business of unions fighting for and delivering the rights and conditions of everyday working Australians.

Firstly, I draw the minister's attention to the armoured car industry, in which workers are regularly faced with the threat of violence, robbery and, in some instances, injury or death. The Senate Education and Employment Committee inquiry into the ensuring integrity bill heard firsthand from Charles McKay, a 25-year veteran and worker for Armaguard. He testified about a string of attacks and assaults on armoured car workers between 1994 and 1995 and in the early 2000s. In the instance that a worker had been assaulted or murdered, and as was the case at Armaguard if workers were devastated and scared for their lives, they decided to take unprotected industrial action to raise the issue of public safety with the company, outside of the bargaining process. Under this bill it would be deemed illegal and a breach of the Fair Work Act. The Armaguard industrial actions led to the Peterson inquiry in New South Wales in February 1997. The recommendations that flowed from this inquiry led to a number of safety measures being implemented for saving lives in the armoured car industry to this day.

The second example is that of public safety in hospitals in my home state of New South Wales. Our hospitals have some of the highest rates of assault, with 465 incidents in the last year alone. There are thousands of health workers in New South Wales and hundreds of thousands across Australia, who deserve to go to work without the fear of injury or assault. The work that they do is paramount to the health and wellbeing of all citizens, including in my home state of New South Wales. We know that assaults in our hospitals can be prevented, or the risk substantially reduced, by properly resourcing hospitals with the staff and support necessary to provide security. Health workers know that this is a problem. Your Health Services Union has been raising it with the state government, but those pleas have fallen on deaf ears.

If workers are fed up with government inaction and are scared to go to work, in case of injury and assault, including knifings, bashings, attacks with syringes and the ongoing threat of violence, if they take industrial action, that would presently be deemed as a breach of the act and would result in the collection of demerit points by the union. This is an example where the very action of this Senate, in passing a motion on 31 July this year, would be made redundant. It was where the Senate supported those very same actions. This leads to a situation where unions can be deregistered for taking what is a public interest test. They not only can be deregistered but ultimately can turn around and be held to a situation where they have to spend substantial sums of money diverted from appropriate causes in representing Australian workers' security.

Another example is the bus industry, where there has been a great deal of evidence, over many, many years, of threats of violence and assault in bus drivers' day-to-day work. A horrible situation and example was with Manmeet Alisher, a Brisbane bus driver who was killed by a homemade bomb thrown into his bus. Workers took various kinds of industrial action following that. In the same situation, bus drivers in New South Wales, particularly in my home city of Sydney, and also in Newcastle and Wollongong, have put bans on various bus routes. All of those are breaches of the Industrial Relations Act. In the cases of the bus industry and the armoured car industry I was very proud to support those workers and also very determined to make sure that I supported those workers when they decided to take that action. I encouraged others to take that action. In those circumstances I would at that time have been accountable for that illegal industrial action.

In actual fact, a number of undertakings were given in the Supreme Court regarding the armoured car disputes. In the case of the armoured car area, there was a particularly horrendous hold-up at Padstow RSL. The company at the time, Chubb, was providing services to Padstow RSL. There were four known gangs operating in the Sydney area, and one of those gangs was believed to be particularly domiciled in that area, as there had been a series of other attacks. Chubb tried to change its delivery standards on the basis of trying to win bank contracts and then trying to win club contracts to move large sums of cash from poker machines. Rather than using an armoured vehicle with a three-person crew and two escorts, with two people in each escort, for Padstow RSL in particular, because it was a high-risk position, the company decided to subcontract that work to a soft-skin operator—that was a person in a 10-year-old sedan who had been in the country, unfortunately for him, for only six months. The crim walked up to the side of the vehicle and blew his head off.

My union and I had given undertakings to the Supreme Court that we would not take further industrial action because the banks were turning around and suing us. As a result of talking to delegates following the assault, the following day delegates said that we had to have a meeting of all workers—firstly, as a result of that fatality and, secondly, how could we wait for WorkCover to make some decision over some months and various court hearings over a period of years to decide whether that is a risk to the safety of all in the armoured car, soft-skin or cash-in-transit industry. Those workers went on strike regardless of the Supreme Court undertaking and they went on strike regardless of it being a breach of what is now the Fair Work Act. Under the system that's being proposed, not only would they be fined but they would receive demerit points and would have their organisation deregistered, and I would hazard a guess that their own official would have their right of registration withdrawn as well.

I put the question directly to the minister: could these kinds of unprotected industrial actions, when successfully prosecuted, lead to the deregistration and/or the possible disqualification of a union official?

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to 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.

Tony Sheldon (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Minister, even if I took the genuineness of your answer at face value, frankly your advice is fundamentally inaccurate because, in the case of the armoured car industry, workers there refuse to follow directions by their employer. In the case of the bus industry, workers there refuse to follow directions from bus employers. In actual fact, they extended actions because of concerns that some workers might feel compelled to go and do work in dangerous areas because of fear of ramifications—for example, casual employees not getting shifts—or, in the case of the armoured car industry, outside work still being delivered to other businesses or continually ratcheting up the unsafe practices. I previously went through the horrific Padstow RSL shooting.

With regard to those matters and the case of the security action, first of all I put to you two things: one is that those matters can be taken to court. The unions can be turned around and found guilty, and they can also lose points as a result of getting to a trigger point. Then, they have to answer those questions in court. Now, all those actions were taken because they disagreed with direction from the employer and disagreed to do alternative work. I will just put you in the scenario. One of your workmates has just been shot dead. There are gangs operating in various parts of the city. You're trying to work out which part of the city the gang's likely to operate in. This is an industry which has inherent risk. The families of those workers are obviously concerned, as are the workers, about what the next assault or attack might be and how imminent that might be—whether it's a matter of days, weeks or months—so the workers stop work and refuse to go to other areas and do other work which could be deemed as being relatively safe and relatively low risk. They are in breach of the act. So I'm putting this to you: if they are found in breach of the act on those matters, will that add to demerit points that can result in deregistration?

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

There are two points that I think are important to reiterate. The bill won't apply, because the action by the employee of participating in the work ban would not be an industrial action, because it's based on a reasonable concern about an imminent risk to their health or safety. The scenario and the very real case that Senator Sheldon has put forward, and I appreciate that he is using specific examples, would certainly qualify in the context of an imminent risk to health or safety. I would also remind the chamber that these amendments will actually provide a higher threshold for the court to make an order than is currently the case under the existing Fair Work (Registered Organisations) Act, because this section, section 28G, and the ground only captures obstructive industrial action, and that means industrial action that, as I said before, has prevented, hindered or interfered with the activities of a federal system employer or the provision of a public service and has had, 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. The facts that Senator Sheldon is advancing in support of his argument don't meet, on the advice I have, that level in the context of the case you're putting forward and in the context of section 28G as it stands.

I am also advised that, on the deregistration point, as you have put it, it is absolutely a requirement for any ground for deregistration to be established that the organisation, its officers or its members have engaged in unlawful conduct. The grounds for deregistration cover a range of behaviours, including the commission of serious criminal offences, being in contempt of court and conducting the affairs of the organisation in a way that leads to the organisation, its officers or its members having a record of not complying with the law. The facts in the scenario and the circumstances that you have put to the chamber, Senator Sheldon, don't meet that test.

Tony Sheldon (NSW, Australian Labor Party) Share this | Link to this | Hansard source

In 2010 a 59-year-old security guard from the Sutherland shire was shot and killed during a routine cash pick-up in Sydney's CBD. That led to an unprotected strike the following day by those workers and also workers in non-risk areas across the state of New South Wales in various parts where there had not been hold-ups on previous occasions. In actual fact, to my recollection, there had not been hold-ups for a period of over 40 or 50 years. Those workers took industrial action in solidarity with their fellow workers after someone had been shot dead. Their concern was about the company not seriously dealing with this—actually, a better way to describe this is clients demanding low-cost security arrangements. Workers took industrial action in other parts of the state. They were not in imminent risk. The union and those workers were found to have taken illegal industrial action, and points were then awarded. Under those circumstances, would that lead to deregistration?

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

The court has to be satisfied that the ground for cancellation has been made out. The Registered Organisations Commissioner bears the onus of proving that the relevant conduct occurred, whether that includes court findings and/or contraventions of the relevant laws. The court then has to determine whether cancellation would be unjust. That is broadly consistent with the test the court is currently required to apply to a cancellation application under the registered organisations act in section 28(3). In deciding whether it would be unjust to cancel an organisation's registration, the court has to consider a number of factors: the best interests of the organisation's members; the nature of the conduct that constitutes a cancellation ground; whether other action has been taken to address the conduct; and, broadly, any other relevant matters, as you would expect. The court has a broad discretion and can give regard to any other matters it considers relevant, which equips the court to fully consider any reasons why it would be unjust to cancel or disqualify. It's a very broad discretion. Under the government's amendments, the court can't make an order unless it is satisfied, having regard to the gravity of the conduct that constitutes the ground, that the making of an order would not be unjust. I would also add that, in the court's process of determining what's in the best interests of members, it is open to an organisation to present evidence of members' views on this point, and members would also, of course, be able to seek leave to appear.

Tony Sheldon (NSW, Australian Labor Party) Share this | Link to this | Hansard source

So, yes, a case can be made for deregistration of the union and then an argument can be put forward—at great expense to the organisation—that the illegal action taken was understandable in the circumstances, according to the pub test. It's a breach of the law. That doesn't mean it's unethical or immoral, but it's a breach of how the law actually operates. As a result of that breach, they can then face a case. And in the case of the armoured car industry and those particular periods of assaults—at one point we had over 23 assaults and hold-ups over a period of a few months, particularly around ATMs—there were a series of industrial actions that were taken. That would have constituted a consistent position over that period and over 10 years to be answered, because there had been many strikes involving people who were not directly at imminent risk as well as people who were at imminent risk.

I'll go back to my other examples. In the bus industry and trucking we've had a series of occasions where rocks have been dropped off overhead bridges. On those occasions workers decided to ban major highways. They had been threatened with dismissal as a result of turning around and taking that action. The rock throwers could be on a weekend, in the evening or in the morning. Hundreds of trucks would use those highways. After talking to union delegates and subsequently having meetings in transport yards, which were not authorised—it's a breach because it's not protected action—the workers decided that they would not use that road any longer. Some workers were threatened that, if they didn't use that road, they would be terminated. Under those circumstances, their colleagues took industrial action to support them. They didn't want to take those roads. That was unprotected industrial action.

In fact I recall a situation where a delegate, who had been with the company for close to 30 years and had won a number of awards from the company for his diligence—he was a very staunch unionist; you can actually do both—stood up for workers and said when he thought things were wrong. When he pressed that issue, he was terminated. The workers went on strike. That was illegal unprotected industrial action. Why wouldn't they go on strike? They were upset that somebody who was standing up for them was terminated and made an example of. They knew that a court case would take months upon months, if not years, in certain circumstances. They weren't going to see him be economically damaged. They wanted the company to see the light. As a result of that strike, within 24 hours that employee was put back on. That was illegal industrial action.

Minister, under those circumstances would demerit points be allocated to a union to be deregistered if they were found guilty of what was clearly a breach of the Fair Work Act—and with a case before the Fair Work Commission, if the employer decided not to reinstate that delegate and they decided to take a court case forward? Would those circumstances in a case that was clearly a breach of the Fair Work Act result in demerit points being added to the union and the official responsible for that area? I might also add that as an official I very happily supported what those workers did.

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

Senator Sheldon, the examples that you have continued to give have a certain consistency about them, and that is the workers, the employees, that you're talking about who are taking the action. If you look at the grounds for cancellation, which I have spoken about before, it is most unlikely that the bill would apply to these scenarios because the action of the employee in participating in the work ban or in the actions you've outlined would not be industrial action; it is based on a reasonable concern about an imminent risk to their health or safety, and the employee didn't unreasonably fail to comply with the direction of their employer.

It's important that we recognise that there's more than one element to this. The second element is about the nature of obstructive industrial action. You have pointed to a number of examples where the imminent health or safety of the workers is relevant and paramount—that is, in relation to the actions that endanger the drivers you've spoken about. It would be obstructive industrial action if it:

… has prevented, hindered or interfered with:

(i) the activities of a federal system employer; or

(ii) the provision of any public service—

as I said, or:

… has had, 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 …

So there is an even higher threshold in this bill for the court to make an order than is currently the case under the existing registered organisations act. Not only does the action have to be obstructive, within the context of the bill, but there has to be an application to the court by the Registered Organisations Commissioner in relation to that. The court then has to make a decision to agree. There are a number of steps attached to that, which I also went through in my previous comments. So there are a number of factors, and all those elements combine to say that it would not lead to the cancellation or the deregistration that you've raised.

Tony Sheldon (NSW, Australian Labor Party) Share this | Link to this | Hansard source

So we're not ruling out that these matters can go to a circumstance of deregistration and also culpability, under the demerit system, against individual officials. What wasn't answered in that is the question of the sacked union delegate who had acted on behalf of those workers. A worker—who, as I said, had an exemplary record with the company—had been, as a payback for refusing to use that road, terminated. Those workers took illegal industrial action to support that worker being reinstated. That is a breach of the Fair Work Act; demerit points would be allocated for that action. That would then add to a case to be heard in the courts, amongst other cases—because, you might be surprised to hear, union delegates do get sacked reasonably regularly in different industries. And it's not because they are—as your party describes them—'thugs' but because they are hardworking people defending their workers and their fellow Australians and the general public. So, Minister, I'm still seeking an answer to the question of the union delegate being sacked and a Fair Work case being heard after an industrial action has been taken in support of that union delegate. When those demerit points are allocated, is there a case to be heard? Is there cost incurred? And can that lead to the potential of deregistration?

As you're contemplating your answer to that, I'll say this. The ROC is a judicial organisation who turned around, in the case of the Transport Workers Union, and gave them a fine for paperwork breaches, as a result of taking the matter up to court, because, the way the language of the law is set out, they, as a result of paperwork breaches—where the court ruled there was no advantage to anybody from the paperwork breaches, but it was a breach of the act—got a fine in the first instance of over $200,000. I might add: the Queensland Hotels Association, which hadn't had an election for 12 years, got a fine of $100,000. But—heaven forbid!—the system's obviously balanced! The courts are balanced! It seems very balanced to me—doesn't it to you? A paperwork breach gets a fine of over $200,000, which means you can't go out and use those resources to fight in the field, in an industry that has nine times the national average of deaths and has seen the exploitation of gig workers in the new economy, armoured car drivers being shot and bus drivers being assaulted! And we're going to have the ROC make a judicial decision. Without prejudice—'without prejudice'; that's a laugh!—they have to look at what the law says they have to do and what their obligations are. They can't say, 'I like the way he parts his hair,' or, 'I like the way she wears her dress,' or—I don't know—whatever horrible things they might say when they make these decisions. They have to make the decision based on the facts.

I'll just go back to the question. If a union delegate, as in the example I gave before, gets sacked because he puts a ban on and supports a ban, as a spokesperson for those workers, where rocks are being thrown off overhead bridges and the workers are taking illegal industrial action—which it is—will there be demerit points? And can those demerit points lead to a case and the expense of deregistration or potential deregistration if enough points are lost?

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

The bill, as it was introduced, defined 'designated finding' by reference to whether the person was found to have committed a relevant criminal offence or found to have contravened a civil penalty provision in a designated law. What the amendment at item 1 on sheet 8975 revised 2 would provide is that only contraventions of core industrial laws which result in a conviction or a court-imposed pecuniary penalty are designated findings for the purposes of the bill; a finding alone will not be sufficient. This is an amendment which further ensures that the bill only targets serious contraventions of core industrial laws, and to accommodate the amendment of this definition, of course, there are consequential amendments made throughout schedules 1, 2 and 4 of the bill. But, ultimately, Senator Sheldon, the point is that the behaviour and actions that you describe don't reach the levels set out in the bill in terms of deregistration or disqualification.

You also raised paperwork breaches. I do think it's important to remind the chamber that it is not true—it is in fact an absolute untruth—that, under the bill, registered organisations could be deregistered and their officers disqualified for trivial paperwork breaches, which include submitting a form to the regulator a few days late. But what we've seen are significant breaches characterised as paperwork breaches by registered organisations and their officers, who have sought to downplay that conduct. And you're right; there was a penalty applied to the Transport Workers Union chair. The Federal Court applied a penalty to the Transport Workers Union for breaking the law that requires organisations to keep a proper register of their members. In this case, there were repeated and serious breaches, over 12 years, of record-keeping laws. The primary judge said in that matter:

It needs to be understood by registered organisations that this is a serious piece of legislation and the apparently mundane obligations it imposes are to be obeyed.

The judge also noted that these laws can go to the very 'democratic integrity' of an organisation.

We know that, where an organisation doesn't publish financial reports or disclose loans, grants or donations, that might also be characterised as a paperwork breach—but it can actually lead to corruption. It can lead to workers getting a very bad deal from the people who represent them. It might be the case that an organisation doesn't keep ballot papers or disclose conflicts of interest; it might want to dismiss those as paperwork as well. But those breaches are serious. They can cover up fraud. They can cover up a corrupt election. So there are a range of examples in this context. I suspect those opposite wouldn't think that, if an employer failed to provide a payslip, that should in all circumstances be characterised as a trivial paperwork breach for which there should be no consequences. That is why it is important that every contravention is looked at on its relevant merits and in context. The court is properly equipped to do that and to determine what the appropriate consequences are in particular circumstances.

Tony Sheldon (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Minister, I appreciate you're only getting briefed from the side about the Transport Workers Union, but I just might add that the court said that no-one was materially affected, and no election was affected, by how the registration was kept and that a series of elections had taken place without any interference. It was a technical breach of substantial size.

I'll just go to another, final question. In July this year, 22,000 Health Services Union members went on strike after a series of assaults and abuse at work. In January, a worker was stabbed by a patient. Two nurses and a patient were also stabbed, with scissors, by a patient. Now, a number of those workers who went on strike were not in directly high-risk areas. In fact, you would consider a number of those workers who went on strike as being in substantially low-risk areas. They were not in imminent danger. They went on strike in solidarity, in collectivism, in unity, with fellow Australians who were being stabbed. This was not a risk question for them. It was a question of doing the right thing, and getting the government to stand up and do the right thing. It was an illegal strike by many of those workers; there was no risk to them. In the circumstances, if that union and the workers were found to have breached the Fair Work Act—which, I might add, they did, proudly—and points were awarded against that union, would that add to a case of deregistration, with all the expense that incurs and with the deflection of the substantial resources that the union is presently putting into dealing with aged care and dealing with the rip-offs in the NDIS?

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

Senator Sheldon, the scenario that you raise is a hypothetical one, but let's be very clear: in the last seven years—

Tony Sheldon (NSW, Australian Labor Party) Share this | Link to this | Hansard source

It's actually happening.

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

Yes, I know it's happened, but this is a scenario in relation to an outcome under this bill. In the last seven years there have been no orders or findings made against the Australian nursing federation, I am advised, concerning unprotected industrial action. So that demonstrates that the organisations of the nursing profession, like the vast majority of unions, are able to advocate for and campaign on issues lawfully. If nurses and their unions want to advocate and campaign for particular issues, they clearly know and understand that there are lawful avenues to achieve this. There are a number of those.

But this ground for cancellation of registration is an existing ground in the legislation as included by the Australian Labor Party in the Fair Work (Registered Organisations) Act 2009. So, to the extent that you have a problem with this ground, you have an issue with your own legislation that has, in fact, sat on the books for over a decade. On that, it's important to note that there hasn't been a single application made under this ground, which reflects the appropriately significant threshold required, despite the fact that both the minister and a person interested, such as an employer, have had the power the make an application in all of that time. So, even in the unlikely event that the ground could apply, with the government amendments the court cannot make a cancellation of registration or an alternative order unless it's satisfied that, having regard to the gravity of the conduct constituting the ground, the making of the order would not be unjust. The court is required to consider whether the making of the order would not be unjust.

The court will also specifically have to consider the gravity of the matters constituting the ground to determine that cancellation would not be unjust—that is, section 28J—and the same considerations will be relevant to the court's determination on whether to make alternative orders under new proposed section 28L. You may like to assert otherwise, but the fact is that, with the additional safeguards being introduced in this bill and the amendments that I have 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 as legislated by the Australian Labor Party a decade ago, with the support of the trade union movement.

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

I thank Senator Sheldon for his very incisive questions. He is a new addition to the parliament here but brings with him a significant amount of experience in the industry and a significant amount of knowledge about the practical problems that are going to arise from the passing of this legislation—and, I might say, he's very passionate advocate for working people—in explaining why so much is wrong with this legislation. It's been a long time since I have been a union official, but I am a great supporter of them; you can understand why when you hear the passion with which Senator Sheldon speaks about the practical issues that are going to arise from the passing of this legislation.

The minister seemed to have some information about the nurses federation and what might apply to that organisation. In New South Wales there are two organisations. There's the nursing federation, but there is also a state registered union in New South Wales, which I assume still exists. The response of the minister may have been to that federal organisation and not to the nurses organisation that is registered in New South Wales. So that might be something that Senator Sheldon might want to follow up on, if he gets an opportunity, to clarify the circumstances there. There was that old decision of Moore v Doyle where a union was divided into two separate organisations. If I recollect correctly, Moore v Doyle might have been a Transport Workers Union case.

Tony Sheldon (NSW, Australian Labor Party) Share this | Link to this | Hansard source

It was, Senator.

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

Well, there you go. What a memory—a memory like a steel trap; like the Bourbons: learn nothing but forget nothing.

Senator Payne interjecting—

My mum used to say that self-praise was no recommendation. But there was an element of self-deprecation in what I've just said. So you need to take that into account, Minister, in an assessment of the point I was trying to make. My recollection is that there is a difference between the state and federal unions, and I am just not sure these days exactly how those organisations might interact and, more particularly, how this legislation might apply to an organisation under state registration—which I'm assuming still exists for most of those public sector organisations in just about every state. So there might be different answers to that question.

In the few remaining minutes I have left to talk on this particular issue, I wanted to raise with the minister some issues regarding corporate equivalence. This was one of the great emotive issues that the government raised in its defence of this rather indefensible legislation and in seeking to draw comparisons between what obligations unions, union officials and volunteers in unions might have in respect of the legislation and similar obligations and responsibilities that might exist in the corporate sector, the people the unions are negotiating with. I think it is fair to say that, in respect of at least some of the crossbenchers, this issue seemed a determining factor in their decision to ultimately get behind the legislation—because they saw that there was some need for equivalence between what obligations you apply to a union official and what obligations you apply to a company director. But I would put to the minister that the suggestion that unions should be held to the same regulatory standard as corporations in these circumstances has an implication that the unions themselves are innately bad and need to be brought up to the same standard against which public companies are held.

But I would like to talk about the nature of unions. While the main obligation or the main purpose of companies is to carry out commercial activity with an aim to generate revenue and, of course, if they're successful hopefully make a profit, the nature of trade unions is quite a different concept in our community. It stems from quite a different philosophical basis in our society. They have a different purpose—and, might I say, a higher purpose. Rather than simply being vehicles for making money, their purpose, their obligation, is to protect the conditions, the wages and the entitlements of Australian workers. Shareholders in a company of course want to see that company make a profit so they can receive dividends and get a return on their investment. That's fair enough. That's our system. It's a capitalist system that we work in. Trade unions, on the other hand, are democratic organisations. Their work is concerned with improving—

Senator Payne interjecting—

No; they're democratic organisations. Every union that I know of, Minister, has to face, every so often, a ballot of their members to determine whether they think they are doing a sufficiently good job to be returned to their office. That is a requirement under the legislation. But more interestingly, thanks to, I think, legislation introduced by Clyde Cameron, those ballots, as least as they relate to federal organisations, are conducted by the Australian Electoral Commission to ensure the integrity of those ballots—Senator Ayres is nodding at me. It's still the situation that if the members of an organisation are up for their regular term of office—which I think is four years for most organisations—then, of course, they conduct a ballot.

Unions have a higher purpose in our community. They're not simply about getting a return on investments. They're not simply about making a profit for their shareholders. They're out there day in, day out trying to lift the wages and improve the conditions of the people they represent—and very often the conditions of people who are not members. One of the great aspects of the Australian trade union movement is that, by and large, unions don't just raise the terms and conditions of the people that pay fees to unions; nine times out of 10, they're also raising the conditions for those who are not union members. Historically in this country—and let's face it: we have very high wages and conditions in comparison to a lot of our immediate neighbours—the unions that have managed to achieve improvements in wages and conditions have done that not only for union members but also for nonmembers. I think that in itself is another distinguishing feature where this idea of corporate equivalence between unions and companies simply doesn't apply. As I said, unions are democratic organisations, and their sole purpose is to improve the wages and conditions of their members. They're not out there making a profit and making a return on their investments. They're out there day in, day out—very hardworking union officials, like Senator Sheldon was a few months ago—to improve the standard of living of their members.

I believe the government has made some very misleading statements about the way in which the bill brings the regulation of trade unions into line with the regulation of corporations. We hear a lot about fake news these days, and my concern is that the government's attempt to draw an equivalence between unions and corporations may have misled some of the crossbenchers into thinking that that's what this legislation actually does. It certainly does not do that.

We've seen only this week the circumstances in Westpac—one of our big four banks in this country. There were 23 million breaches of AUSTRAC obligations. I didn't get a chance to read the whole story this morning, but I understand that the figure may be significantly higher than 23 million breaches of the AUSTRAC obligations. What's happened to the person who oversaw those breaches? Have they been sacked or forced to stand down from their company? Has their company been forced out of business? Has it lost its licence? No. In fact, what happened to that particular CEO of that particular company is that he was allowed to resign, apparently with the consent of the board, and then get a $2.69 million payout—shocking!

There is this idea of some equivalence between how corporations are treated by this government and how unions who work day in, day out to try to improve the living standards of their members are treated—and, of course, we know that under this government living standards are falling. Why are they falling? Because wages are not increasing. Retail sales, as I mentioned when I spoke earlier today, are flatlining or falling in this country right as we speak.

I note that the minister seemed to draw some comparison with a boss who fails to give their employees a payslip and how that's a bad thing. Well, I agree it's a bad thing. Everybody is entitled to a payslip. But, of course, if that employer does fail to provide the payslip, they don't get the sack. They're not dismissed. The organisation that fails to provide the payslip is not then deregistered and forced out of business to stop doing what they are doing. So the idea that there's any sort of comparison between an employer who fails to provide an employee with a payslip and a union who takes certain actions or fails to provide certain details to the Registered Organisations Commission, the so-called ROC, is simply preposterous. We have these unions working in the interests of their members.

This is a question I've got for the minister on this subject of corporate equivalence: is it not correct that this bill allows for union officers to be disqualified for contravening industrial or work health and safety laws but that the Corporations Act does not allow company directors to be disqualified for contraventions of those same laws?

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

There are a couple of minutes available, and Senator Farrell's canvassed a number of areas. In the context of comparison to corporate regulation and the difference between corporations and the role of unions, I did say last night in my summing-up speech that, of course, in the context of bringing forward this legislation, and in all of our work in industrial relations, we acknowledge the important role of registered organisations, both unions and employer associations, because they're representing their members' interests in the industrial relations affairs of this country, and that is a valuable contribution that should quite rightly continue. But it is the government's view that registered organisations should not be immune from the law in carrying out their functions.

Senator Farrell asked a number of questions and raised a number of issues in relation to the treatment of registered organisations versus the treatment of corporations. I can absolutely assure the chamber that the bill does not assume that registered organisations are the same as corporations. The bill does mirror some parts of corporate regulation to address concerns that have been raised by some stakeholders, but it's been appropriately adapted to the particular nature, structure and purpose of registered organisations.

Senator Farrell in his remarks also canvassed his perception of the views of other members of the Senate and the crossbench, how they might be regarding these matters and how they might be construed. I think that, from the government's perspective, we have a very healthy respect for the approach that other members of the chamber and members of the crossbench have taken to this legislation. You may not think so, Senator Farrell, but I think they are more than capable of making their own assessments on the merits of the legislation that comes before this chamber. They will consider arguments put to them by the opposition, they'll consider arguments put to them by stakeholders, they'll consider arguments put to them by government and they will, as highly capable and extremely engaged members of the Senate, make their decisions accordingly. I think to suggest otherwise would be somewhat disappointing.

In the short amount of time available, I will be very clear: the bill doesn't assume that registered organisations are the same as corporations. Where corporate regulation has some application, we have been able to mirror some parts of it to address concerns that have been raised by some stakeholders, but those processes have been appropriately adapted in the drafting to the particular nature, structure and purpose of registered organisations. There are a number of other things I would like to add in response to Senator Farrell, and I think we'll probably come back to this point.

Progress reported.