Registered Organisations amendment legislation

We all know that the reason we are debating this bill tonight is that, as we have seen in recent weeks, this government would like to talk about anything but its toxic budget. It is a budget that takes money out of the pockets of the very people who trusted this Prime Minister before the election. As is the hallmark of this government, this bill represents yet another broken promise from a Prime Minister and a government that are watching their trust and support slip away like sand between their fingers. It is hardly surprising that when a Liberal-National government is in trouble, they run towards what they know best, which is attacking workers and attacking representative organisations. This bill is about registered organisations, which are employer and employee organisations registered under the Fair Work regime.

Ms BUTLER (Griffith) (19:28):  I rise to oppose the government's Fair Work (Registered Organisations) Amendment Bill 2014 and the circulated amendments. This bill ignores all advice from stakeholders and represents yet more broken promises from this government.

This bill will establish the Registered Organisations Commission, the ROC, and amends the Fair Work (Registered Organisations) Act. The ROC will be headed by a Registered Organisations Commissioner, with greater investigative powers than those available to the General Manager of the Fair Work Commission. The bill also modifies disclosure requirements, includes higher penalties for civil contraventions and introduces criminal offences in respect of officers' duties, which are modelled on, but also in some cases exceed, those found in the Corporations Act 2001.

We all know that the reason we are debating this bill tonight is that, as we have seen in recent weeks, this government would like to talk about anything but its toxic budget. It is a budget that takes money out of the pockets of the very people who trusted this Prime Minister before the election. As is the hallmark of this government, this bill represents yet another broken promise from a Prime Minister and a government that are watching their trust and support slip away like sand between their fingers. It is hardly surprising that when a Liberal-National government is in trouble, they run towards what they know best, which is attacking workers and attacking representative organisations. This bill is about registered organisations, which are employer and employee organisations registered under the Fair Work regime.

They play an important role in Australia's workplace relations system. They are registered organisations that this bill seeks to further regulate.

I listened to the previous speaker, the member for Wright, with interest, and I wish to offer to him in good faith a conversation about the effect of the Fair Work laws, because, as he might have noticed, there were quite a few things that he mentioned in his speech with which I disagree. One of them is this idea about greenfields agreements. The previous speaker said that somehow it was a problem that greenfields agreements were to be negotiated with unions. But I ask: who else would a greenfields agreement be negotiated with? The definition of the greenfields agreement is that there are no employees with whom to negotiate. If the employer is not negotiating with the future employee's representative organisation, then with whom would they negotiate? Would we really want to go back to WorkChoices? That is the alternative. The alternative is to go back to the WorkChoices regime for greenfields agreements.

Let us think about that WorkChoices regime for a second. An employer could make a greenfields agreement called an employer greenfields agreement. Who were the parties to that employer greenfields agreement? They were the employer and itself. In other words, the employer called a meeting with itself. It went into a room and said: 'Hello, employer. I'd like to give them no wage increase in the next three years. How do you feel about that?' 'Well, employer, that seems pretty fair to me. Let's shake on it.' That is ridiculous. That is why greenfields agreements need to be negotiated with representative organisations that are acting in the interests of the future employees, because, frankly, there is nothing more than a glaring conflict of interest when an employer negotiates with itself, as occurred under the WorkChoices regime of the federal government under Mr Howard. That is the sort of thing the previous speaker was talking about: going back to that WorkChoices regime, where there were no protections for future employees of greenfields projects.

But coming back to this bill, let us talk about registered organisations. The previous person who spoke to this bill was at pains to say that the coalition is not against unions. Well, I beg to differ. The trade unions royal commission that we see at the moment is an exercise in de-legitimising the union movement. That is what it is an attempt to do. It is to make the union movement seem like it is not legitimate. And why? We have seen things like the HSU scandal, a scandal in which the HSU was the victim of white-collar crime from unscrupulous, unethical persons who committed crimes against that union and its membership. But that does not mean that we should accept that unions in and of themselves are illegitimate, and unfortunately that is what this bill is aimed at giving the impression of. When we talk about registered organisations we are talking about employer organisations like the Australian Industry Group, like the Australian Chamber of Commerce and Industry, and about trade unions, like the CFMEU and other unions we have heard spoken about. These are organisations that are registered under the Fair Work legislation with an obligation to represent their members, both in the workplace and before industrial tribunals and courts. And they play a broader role. Unions and employer associations are part of a civil society, they are part of the fabric of Australian democracy, and they provide support to people individually but they also contribute to the sort of society that we want to live in.

If you want to know about the importance of unions in this country and in democracies, you might want to consider the case of CFMEU v North Goonyella Coal Mine Pty Ltd [2013 FCA 1444]. It is a case very close to my heart, because my former colleagues at Maurice Blackburn—Emma Thornton and Kelly Thomas—did such a great job working in that case, where an employer was being pursued for its contraventions of the Fair Work Act for adverse action against members of unions. It was a really important decision, and it was one in which His Honour Justice Logan spoke at length about the importance of unions in our democracy. He said that the case:

… provides a very useful occasion to recall why in our country, for so many years, trade unions have been regarded as lawful and why it is that those who take what is called these days adverse action against persons because of trade union activity are amenable to penalty.

To understand that, one has to go back almost 200 years to a case which was passed into history as the Tolpuddle Martyrs' Case, but which is known in the law reports as R v Lovelass and Others (1834) 172 ER 1380. That case was decided in England against the background of a group of farm workers … who wished to form a union to prevent reduction of their wages. … The farm workers concerned met in the home of a Thomas Standfield. They there took an oath to combine together and to seek to prevent the reduction of their wages. They formed what was known as the Friendly Society of Agricultural Labourers. They were prosecuted under an Act, the Unlawful Oaths Act 1797 (UK). That Act had been passed by the British parliament in response to a threat of mutinies following the French Revolution. It made it illegal to make an oath and an offence to not reveal the oath in particular contexts. The workers concerned were convicted and sentenced to transportation to Australia. Such was the outpouring of popular outrage in respect of that prosecution and its sequel that the British government decided to return the workers concerned from Australia. Some later migrated to Canada. One remained here.

It is that case which is generally regarded as providing the inception of a movement which gradually throughout the 19th century led to the recognition by the British parliament and then by colonial parliaments here of trade unions as lawful organisations. The history of the progression from the Tolpuddle Martyrs' Case, through the 19th Century, to the recognition under the Trade Union Act 1871 (UK) and the Trade Disputes Act 1906 (UK), which have Australian equivalents, is set out, notably, in a work by Sidney Webb (later Baron Passfield) and his wife, Martha Beatrice Webb, The History of Trade Unionism (Revised Edition, 1920).

In Australia, drawing on that heritage, ever since we have had a federal industrial relations statute, trade unions have been recognised expressly by our parliament upon registration as lawful organisations, having a recognised representational role in our industrial relations system. The history of the provisions proscribing adverse action in the Fair Work Act is as long as federal industrial regulation in Australia.

The case that His Honour was dealing with involved an employer taking adverse action against people for their union involvement. His Honour said:

The long and the short of it is that this case displays a blatant, deliberate, concerted and fulfilled endeavour on the part of an employer to subvert a deeply rooted feature—

and this is the important part for our purposes today—

not just of our industrial relations system, but of our democracy itself.

He was there talking about trade unions and their importance to our democracy, and he said:

I cannot overemphasise the seriousness of the conduct concerned. It is no new subject that trade unions are regarded as lawful and that those who seek to take adverse actions against person on the basis of trade union activity are subject to penalty.

Equally as important for the purposes of our consideration of this bill tonight, His Honour went on to say:

Of course, with the benefit of recognition as lawful organisations comes great responsibility for trade unions and those who hold office in trade unions. Over time, a number of commissions of inquiry, State and Federal, have exposed practices where the privilege of recognition of trade unions has been abused, or where those who hold office within unions have abused a privileged position.

With the greatest of respect to His Honour, I most humbly agree with him. It is very important that the seriousness of the role of the representation of working people be conducted absolutely without any corruption and without any unlawful behaviour. It is a role of great trust and great responsibility. Labor knows that and that is why we have no tolerance for corruption by union officials or officers of employer bodies, who equally share that sacred obligation as a representative and as a person that their membership look to to represent their best interests.

The Labor Party has always supported tough penalties for those that break the law. We have always supported appropriate regulation for registered organisations, unions and employer associations, including a properly empowered regulator and consequences for those who break the rules. That is because we know better than anyone how important that position of trust is not just to the individual members and to the members as a whole but to our democracy and our society. It is fundamental to our democracy and society that we have a union movement that is held in high esteem. That is why we have always been committed to ensuring financial accountability by unions and employer organisations.

So much so that the now Leader of the Opposition—Bill Shorten, as a minister—strengthened the laws around transparency and disclosure by registered organisations to their members. Yet here we have those opposite standing here to talk about unions in a negative way, just like their counterparts in my home state of Queensland. That is where we saw anti-union legislation. Wasn't that a success! It was such a success that the Queensland LNP had to rush into the parliament to repeal their own transparency laws, because they knew that they were not going to survive an upcoming High Court challenge. Those rushed through anti-union laws did not survive and were so poorly written and so poorly put together. The facts though, from Labor's perspective, speak for themselves.

As a result of Bill Shorten's work, the regulation of trade unions in Australia has never been stronger, accountability has never been greater, the powers of the Fair Work Commission to investigate and prosecute for breaches have never been broader and penalties for breaches have never been tougher. Labor tripled the penalties when we were in government. Yet we now hear those opposite coming in here to try to manufacture a basis to justify their changes. They refer to things like the HSU, which—as I have said—was a victim of white collar crime but unscrupulous officials.

Let us have a look at the Registered Organisations Act as it now stands. Does the act prohibit members' money from being used to favour particular candidates in internal elections or campaigns? Yes, as it has been a longstanding principle of industrial law in this country that members' money cannot be spent on electing particular candidates in union election campaigns.

Mr Ciobo:  Someone should have told Craig Thomson.

Ms BUTLER:  I will take the interjection. Craig Thomson has just been raised. As we know, he broke the law and he should suffer the full consequences of a breach of the law. But the fact is that the union was the victim of that crime. Just as if a director of a company defrauds that company, that does not make that company illegitimate; so if an official of a union defrauds a union, that is not a basis to claim that unions are illegitimate. Does the act allow for criminal proceedings to be initiated where funds are stolen or are obtained by fraud? Yes, it does. Does the act already ensure that the Fair Work Commission can share information with the police as appropriate? Yes, it does. The Registered Organisations Act already provides for statutory civil penalties where a party knowingly or recklessly contravenes an order or direction made by the Federal Court or the Fair Work Commission under the Registered Organisations Act or the Fair Work Act.

Officers of registered organisations already have fiduciary duties akin to those for directors under the corporations law and there are corresponding statutory obligations. The Registered Organisations Act already requires officers to disclose their personal interests, already requires officers to disclose when payments are made to related parties and already requires officers to exercise care and diligence, act with good faith and not improperly use their position for advantage. Given all of this, we cannot help but question the motives of this government in introducing this bill.

Why is the government rushing to impose this new regime, which includes some penalties that exceed the Corporations Act? It is just yet another attack on unions, because they do not want to talk about their budget. They are looking for something—anything—to talk about other than their toxic budget, which is the budget that has been rejected so comprehensively by the Australian people and the budget that breaches those pre-election commitments of no cuts to health, no cuts to education, no changes to the pension and no new taxes. What have we seen? We have seen the GP tax, the tax when you go and get an x-ray, the tax when you get a blood test, the deregulation of higher education, the cuts to education, the changes to the pension indexation that will leave pensioners worse off and the petrol tax. It is a litany of broken promises and twisted priorities. (Time expired)

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