House debates

Monday, 29 July 2019

Bills

Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019; Second Reading

4:37 pm

Photo of Mr Tony BurkeMr Tony Burke (Watson, Australian Labor Party, Shadow Minister for the Arts) Share this | | Hansard source

I move:

That all words after "That" be omitted with a view to substituting the following words:

"the House:

(1) declines to give the bill a second reading; and

(2) notes that:

(a) this Government has not proposed legislation to deal with important workplace relations matters, such as wage theft, flat lining wages growth, or deaths in the workplace;

(b) this bill and the Act it seeks to amend represent an inconsistent approach by the Government to responding to Royal Commissions; and

(c) the Government's entire approach to workplace relations laws is to attack workers' organisations with the specific intention of weakening the capacity of those organisations to combat wage theft, achieve wage growth, and ensure that workplaces are safe".

This Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 is poor legislation. It is unnecessary legislation and, for the way it can be weaponised, it's dangerous legislation.

At a time where the economy is at the moment and where workplaces are at the moment, there is a reason for industrial relations legislation to be brought to the parliament. But at a time when wages are flatlining and when the key economic challenge is how to get wages up, the government's response is to attack the organisations that argue for wage increases. At the time when wage theft is being reported weekly and people are scandalised by what they are seeing happening to ordinary workers' wages, the government's response is to attack the organisations that would defend those workers against wage theft. At a time where occupational health and safety has reached the extraordinary situation where we talk about deaths in the workplace—we talk about workplaces that kill more than 200 workers in Australia every year—the government's response is to attack the organisations that have always argued for better work safety laws.

How do we get wages moving in an industrial relations system like we have? The government will argue, 'What you need is for company profits to go up,' because if company profits are improving they'll say that's the way to get wages moving. Except for this problem: we've got stagnant wages and wages growing eight times—eight times!—slower than the rate of profit growth. Wages are growing eight times more slowly than profits. We've got the slowest economic growth since the global financial crisis. Australia is now in the longest per capita recession since the 1982 recession. The national economy has fallen from the eighth-fastest growing in the OECD to the 20th. We have stagnant wages, rising underemployment and youth unemployment, slowing employment growth, five years of weak productivity growth, weak household spending, failing consumer confidence, weak business conditions, living standards growing slower under the Liberals than under Labor—and this government says, 'Here's the answer; attack the organisations that argue for improving workers' conditions.' It has been worse over the last few days. They've been saying, 'Here's the way to get wages to improve; just freeze super.' Guess what? This government did freeze super since coming to office—and what have we seen since? Stagnant wages growth.

Whenever wage increases come in through a minimum wage case it's not because there's a submission from the government furiously arguing to keep penalty rates or that we need to significantly improve the minimum wage; whenever those hearings result in a wage increase it's because of the advocacy of the union movement, led by the ACTU. That doesn't automatically mean it then gets passed through to every award; it gets passed through to the awards because each individual union makes the application for it to be passed through. At every stage if unions and workers' organisations are strong then the Australian workplace becomes a better place for wages growth. That's how the industrial relations system works in our country.

Let's not forget that we have a record number of people now relying on awards, but the response from the government, is never, 'How do we make the system work better to deal with the fundamental challenges that we have in the Australian economy at the moment?' There was a time when it was at least contestable—it was not my view but some people were seriously arguing for it—that wages growth was going too far and you needed to pull it back. They would then argue, 'That means we need to attack the unions.' Now, when the economic facts are so transparent and the Reserve Bank has been so clear that we need to get wages moving, the only thing that could be driving a bill like this is a pathological hatred of unions, because it is not interests of the economy, it's not in the interests of the workplace, and it's a law that is begging to be weaponised—and I'll get to that shortly.

But the legislation that's in front of us is at least consistent with how this government has behaved. Effectively they've had three themes whenever they talk about workplace laws in Australia. They had the Registered Organisations Commission—thoroughly politicised and discredited; the organisation that decided its biggest issue to go after just happened to be something from a time years back when the previous Leader of the Opposition had been outside the parliament. Just by accident that happened to be the one they focused on. Then they were involved in the extraordinary circumstance where the police turned up after the media. David De Garis, an adviser to Minister Cash, resigned that night after admitting he had tipped off the media. Later it was revealed that Mark Lee, an adviser to the Registered Organisations Commission, had been about to start a job in Minister Cash's office. He also resigned but denied he was the source of the leak. Then her former chief of staff, Ben Davies, tells the Federal Court that, no, he had in fact been the source of the leak. That's their first organisation.

The second is the ABCC, headed by Nigel Hadgkiss at the time—and why did he have to resign? For breaching the Fair Work Act. These sorts of people are the ones they want for integrity. Throughout all of this, for the simple game of desperately trying to get members and former leaders of the Labor Party in the dock in a royal commission, they established the trade union royal commission, headed by the talent at a Liberal Party fundraiser, who, when challenged as to whether or not he was biased, decided there would be a hearing as to whether he was biased—a hearing presided over by himself, where he heard the arguments from both sides and then decided he was not biased and went ahead with the royal commission. That has been the way this government has sought to deal with workplace laws.

Today is just the next instalment in a ridiculous, antiworker line. Let's not pretend: if you come up with anti-union legislation, it's going to turn out to be anti-worker legislation, because workers will not get improvements in their conditions, they will not get pay raises and they will not get policing for occupational health and safety and against wage theft unless unions are strong. This legislation is about trying every step of the way to attack workers' organisations and to attack union representatives in the workforce.

Unions, of course, are fundamentally different organisations to corporations. A corporation's first job is to carry out a fiduciary duty. Their first job is to seek profit, and they have to do that within a competition framework. The first duty of a union is to be representative. Their first duty is to be democratic organisations. So we don't accept the whole argument that the government has wanted to put on corporate equivalence. But, if that is the test, they've still failed it.

The bill in front of us goes through four different areas. It goes through: disqualification of union officials; deregistration of organisations themselves; administration of organisations; and amalgamations. I want to have a look at each of those four in turn. The first is the disqualification point and, to hear the government's talking points, it's the only one they want to talk about. It's the one that they've decided to pin all their rhetoric to. All their rhetoric is on the disqualification point, and they hope that they can just shepherd everything else through without anyone noticing. That's how they've argued. How many times have we heard them talk about the amalgamation section? It's the most fundamentally undemocratic piece of worker legislation you could imagine in an Australian parliament. It basically says the Australian Electoral Commission will conduct a ballot and we're then allowed to ignore the result. I'll get to the detail of that. It's extraordinary what is in this bill.

But let me start with the disqualification point. This is the one they want to talk about all the time. This is the one where they say they're wanting to make sure that they can disqualify the worst union officials. On the way they've structured this, first of all, who can make the complaint? The complaint can be made by any person of sufficient interest. There is no clause like this in the Corporations Law—no clause at all. You can understand why. Could you imagine company directors finding that anyone could say, 'I don't think you're up to the job,' and then could commence legal action and they would be committed to going ahead and trying to draw on a defence within the act? The government would never bring that sort of legislation in. The opposition wouldn't bring that sort of legislation in. But the government will do it when it's about trade unions, even though there is absolutely no corporate equivalence in the concept that anyone otherwise undefined, any person of sufficient interest, is able to launch these legal actions.

What constitutes a breach, then? The bill deals with criminal and civil proceedings and unrelated conduct. First of all, it is already the case under the Fair Work Act that, for union officials, there are circumstances where they can be barred. They can be barred if they've engaged in fraud and been found guilty. They can already be barred if they're convicted of a violent crime. That could already happen. But what happens here is there's automatic disqualification opened up for anyone who is convicted of something that carries a maximum five-year sentence, even if they're not sentenced to that. There can be many occasions. Let's go through a simple example. If someone drives without a licence twice—they shouldn't do that! That's why there's a penalty if you do that. The judge might decide that in the circumstances they were in—they might have been getting someone to hospital or something like that—they get no custodial sentence at all. But they are forever barred from being a union official under this. Sorry, where's the corporate equivalent? There isn't one! Nor should there be, because it's a ridiculous law.

A technical breach, for example, is where you give notice when you're inspecting a dangerous work site but you don't give the right sort of notice, so there's an administrative error in how the notice is given; or investigating the rampant underpayment of workers and you technically do it in the wrong way, even though you do give notice of it. An application can be made by the very business that you were investigating to say you need to be knocked out as an official. Think about that. Think about the way businesses would be able to weaponise this legislation. In the course of a dispute they won't have to stick to the merit and they won't have to remain on the argument; they could in fact simply say, 'Well, I'm now going to go after you.' The parallel would be if a union could bring an action under the corporations law to disqualify the company directors as part of ambit within an argument. It's an absurd thing.

You don't have to think for long to see how this will be weaponised by the worst people. If you want to start with the worst people, start with Gerry Hanssen. Start with the donor to the Liberal Party who apparently, from all the reports, is still a member of the Liberal Party. No-one has sought to kick him out of their party, but he's a prominent construction boss in the west. He's been fined more than $60,000 by the Federal Court for blocking union officials from a building site where a worker had just died. A worker died, people went to conduct a health and safety inspection and he denied them access. He's been fined $60,000 for that. He's a well-known Liberal Party member and donor. He's donated an estimated $175,000 to the federal and WA Libs and Nats over the last five years or so. He is a repeat offender. In 2008 he was fined $174,000 for exploiting foreign workers. A decade later, an audit alleged 93 employees were underpaid more than $271,000. That's called wage theft.

Guess what his punishment would be under the law that's in front of the parliament at the moment? Wage theft, taking advantage of foreign workers, denying a health and safety inspection—what's the penalty for him? He's not allowed to run to be a union official. That'll hurt him! That's the law that's in front of the parliament right now. It's that ridiculous. The punishment for someone who remains a member of the Liberal Party, who remains cosy with those opposite, who has behaved in this appalling way and who's said to have a pathological hatred for unions is that he won't be allowed to be a union official. On the scale of things, I reckon that's unlikely to hurt him. I reckon he's unlikely to get too upset about that. That's the only penalty that comes to him as a result of the legislation that's in front of us.

The principles on deregistration in this bill are equally absurd. When people talk about unauthorised industrial action, you think, 'Oh, unauthorised industrial action sounds pretty serious,' and people often want to go to the most extreme examples. But what in fact does the bill in front of us include? What does the bill in front of us encompass? For those of you who catch public transport—maybe those opposite don't—unauthorised industrial action includes times when private bus drivers, sometimes public and sometimes private, or train drivers go through a period where they don't collect tickets. Another example of industrial action would be if, in fast food, a group of workers, as part of a campaign, said they were now refusing to follow the directive and would not ask, 'Would you like fries with that?'

Or if a group of nurses decide they are going to take unauthorised industrial action by handing out leaflets explaining that they don't think the patient ratios are good enough—and it is not authorised and it is caught under the bill in front of us—what do those circumstances mean? The entire union they are members of can be deregistered. That's a bit extreme. Yes, it is. I don't know what it is doing in legislation. In the legislation that is in front of us right now, those will be grounds for deregistration of the entire organisation.

Are there defences? Yes, there are defences—of course there are—and a judge would have to work that out. But the action can be commenced, and the union then gets tied up in the courts. And the only protection you might think there is then is: 'As if the commission would bring an action like that!' That's true. The only problem is that it doesn't have to be the commission that brings the action. Once again, any person with sufficient interest gets to take the action. It might be the boss. It might be the employer. It might be the customer. It might be anyone deemed to have a sufficient interest. It is a deliberate and calculated attempt to prevent workers from organising.

I know that those opposite want to characterise the average union member as a bloke, probably roughly my height—but significantly stronger than me!—involved in a blue-collar industry, who gets into lots of fights. That's how they want to characterise the modern union movement. But the typical union member these days is a woman in aged care. That is what the union movement has become these days. Yes, there is still membership in those other areas—of course there is—but don't pretend that the legislation in front of us affects only those people. Because it doesn't. For the sake of wanting to have an argument over a handful of union officials, this government, this legislation, is looking at fundamentally changing the balance and changing the calculation of what can happen in a negotiation. This takes you completely beyond the merits of an industrial dispute.

Some people will hear my examples and say: 'But they still shouldn't do that. They are paid. They've got their jobs. They shouldn't be conducting any sort of protest in the workplace.' Can I just remind people that the reason we ended up with the Sunday trading in New South Wales was that an employer, Gerry Harvey—a famous one; he used to run Norman Ross and he now runs Harvey Norman—decided to break the law and open even when Sunday trading was banned. He paid the fine anyway—because paying the fine was part of the business model—and he boasted on radio that he was making more money by opening the store than he was losing through the fine. I remember. It was at the Norman Ross store at Kogarah, not far from me. These are examples that will exist, not only within the union movement, of the concept of something being technically banned civilly; there is an administrative error or it something that is part of workers standing up for themselves and trying to get pay rises—or, in the case of the nurse examples, just standing up for their profession and wanting to guarantee better care.

If those opposite say they don't want those examples to apply to this bill then take them out. But if you take those examples out, there is not much of this legislation left—because everything has been drafted. This bill is not capable of amendment to get rid of these examples. With the way everything here has been drafted, they either don't understand how unions work or how this would be weaponised—if I want to think the best of the minister responsible for this; I don't really, but just work with me—or, if I'm thinking a bit more practically, they want to weaken the capacity of unions to stand up for workers. They want a law that can be weaponised. They want a law that increases the capacity of employers, in the middle of a dispute, to say: 'You want to demand that pay rise? You want to raise that condition? You want to demand those ratios? I'll show you!'

If you don't think there will be employers who'll do that, look at Gerry Harvey. It'll happen unless those opposite decide to stand up for the national interest—I'm not holding my breath, but still hopeful—or, in the Senate, the crossbench end up blocking this. There is no corporate equivalence for this sort of behaviour, if that's their test. If the test is 'what's best for the workplace' this thing fails at every level. Imagine if it were the reverse. Imagine if, when Gerry Harvey ran those protests all those years ago to get Sunday trading up in Sydney, the union had been able to say, 'We're going to take away your right to run the company.' That is the corporate equivalence of what's in front of us.

When you get to the section on whether or not a union can go into administration, it's the same story again. Once again, what's the standing provision? A person of sufficient interest. There is no corporate equivalent to that. There is absolutely no corporate equivalent for this sort of clause in schedule 3. Even the regulator can't do what this bill is saying that any person of sufficient interest will be able to do. Even the regulator doesn't have the sort of power that the government are now wanting to give to any random as long as the power is being used against a union—as long as it is being used an employee organisation. It is an absurd way of trying to govern.

But I think the most undemocratic of all is amalgamations. This is where you have two different organisations that decide that they want to amalgamate. In wanting to amalgamate the two organisations have to conduct a ballot. Those ballots are overseen by the Australian Electoral Commission. The bill in front of us says that, even if the first organisation votes majority yes and the second organisation votes majority yes, you can then take that to court to try to prevent it from going ahead. I have to say that there have been occasions, even this year, when I haven't liked the outcome from reports of the Australian Electoral Commission. You would all be aware of it. It's part of why I am on this side of the House. But the concept that this House would pass a bill that says that even if the Electoral Commission conducts a ballot you can then ignore it is phenomenal. It goes completely against the fundamental principle of freedom of association.

Those opposite have been really quick to jump and really tough to argue when it's been about freedom of speech and when they have been talking about 18C of the Racial Discrimination Act. When it has been an argument about whether someone who has racist views can be really loud, they have been big on the freedom argument. I just wish they didn't go missing when it came to freedom of the press or freedom of association. They have gone completely missing. How can you get a bigger departure from freedom of association than to say that the Electorate Commission will conduct the ballot and you get to ignore it anyway? The Electoral Commission conducts the ballot and you get to ignore it anyway, based on an otherwise undefined national interest test.

As I said in relation to the Electoral Commission, a few months ago, I would have loved to have gone to the court arguing it was against the national interest. I don't think it really was in the national interest how that AEC decision turned out.

Government Members:

Government members interjecting

Photo of Mr Tony BurkeMr Tony Burke (Watson, Australian Labor Party, Shadow Minister for the Arts) Share this | | Hansard source

I know you've got another view. I accept that.

Photo of Tony PasinTony Pasin (Barker, Liberal Party) Share this | | Hansard source

Also shared by a majority of Australians

Photo of Mr Tony BurkeMr Tony Burke (Watson, Australian Labor Party, Shadow Minister for the Arts) Share this | | Hansard source

And I accept that. I will take that interjection. Here is a view. A majority of the members of both organisations share the view that they want to be one organisation. Why on earth would there be a right to then take that to the court and say, 'It's their organisation. It only exists because they've joined together and formed these two organisations. But we're not going to let them have the freedom of a democratic vote as to whether it should be one organisation'? How do you argue that?

Photo of Darren ChesterDarren Chester (Gippsland, National Party, Deputy Leader of the House) Share this | | Hansard source

Same as shareholders.

Photo of Mr Tony BurkeMr Tony Burke (Watson, Australian Labor Party, Shadow Minister for the Arts) Share this | | Hansard source

You missed the beginning of the speech. The reason that the issue of shareholders is completely different is that a company is there to provide protection for investors in the event that they can't provide for their bills. That's what limited liability is about. Because that's the privilege of it, there's a fiduciary duty in competition law that comes in. There's no national interest test as to whether or not there's a democratic process of shareholders here. That's not how it works, because, at the start, the first role of companies is not to be representative bodies. I don't go out to buy shares in some company so that they'll advocate publicly for my interests, but that is why someone joins a union.

It's about freedom of association. The concept that there could be a vote conducted by the Australian Electoral Commission and then ignored by this government has no precedent, flies in the face of the entire concept of freedom of association and should not be backed by this House or the other house. There are other governments in the world that have laws like this; they're just not the sorts of countries that we want to be compared to. In the countries we'd usually like to be compared to, these sort of laws don't exist.

So, whether it is the capacity to try to weaponise the law against individual union officials, whether it's to weaponise the law against the entire registration of a union, whether it's to put them into administration or whether it's to prevent a democratic vote, the legislation in front of us is transparent. The government wants to make it more difficult for unions because unions will argue for pay rises, against wage theft and for better health and safety at the workplace, and they're the principles that this government has committed to get in the way of. Be in no doubt: we're not running from the argument on this. Be in no doubt: we're fighting every step of the way on this. For those opposite: be in no doubt that, when your attack is simply on workers' entitlements and the organisations that argue for them, we will stand up to you.

Photo of Tony SmithTony Smith (Speaker) Share this | | Hansard source

Just for neatness, I ask whether the second reading amendment is seconded.

Photo of Madeleine KingMadeleine King (Brand, Australian Labor Party, Shadow Minister for Trade) Share this | | Hansard source

I second the amendment and reserve my right to speak.

Debate adjourned.