Wednesday, 9 December 2020
Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Bill 2020; Second Reading
I will start by acknowledging, because it was raised, that the opposition was provided a draft of the bill over the course of the weekend. There were objections to the bill that we raised. For transparency, it's important to make the point that we were provided with a copy of the bill to consider over the course of the weekend. There were some specific parts of it to which we took objection, and the bill that has been introduced today by the minister does not contain the sections that we objected to. So I want to acknowledge the cooperation of the minister and his office. This is certainly, from our perspective—and I respect the different views of the crossbench—a much more constructive way of working than has often occurred.
The bill before us represents a commonsense technical amendment to the Fair Work (Registered Organisations) Act 2009—specifically the provisions in the act that deal with withdrawal from amalgamation. Currently the act allows a constituent part of an amalgamated union to withdraw from the remainder of the union. It's a democratic process involving a ballot of the members of that part of the union that would be seeking to withdraw from the amalgamation. The problem with the provisions as they currently exist is that they only provide a window of between two and five years after an amalgamation in which a vote of that kind can take place. It's a narrow window that doesn't contemplate the possibility that the desire for a demerger and the reasons for a demerger may arise after that five-year window.
So the bill creates an exemption to the time limitation via a new appropriateness test in section 94A of the bill. That provision allows the Fair Work Commission to grant an application for a withdrawal ballot if certain conditions are met. These conditions in the bill that has been presented to us are narrower than what had been presented to us over the weekend, and it's with that in mind that Labor is in a position to support the bill presented by the minister. The new section, subsection 94A(2), explains that the conditions are:
It will require the applicant to file its plans for withdrawal, which include the rules of the amalgamated union and proposed new union, the names of the respective organisations post withdrawal, and the allocation of the assets and liabilities between the amalgamated organisation and the newly registered organisation. The rules set out must avoid any overlap in coverage between the demerged entities.
It's important to note that there are many unions which have had amalgamations but have not retained the sorts of divisions that would satisfy the definition here of 'constituent part'. Where an amalgamation has taken place and there are no longer separate constituent parts within the union, then the capacity that's provided here would not arise. But where divisions have continued to run as quite independent bodies, as is the case in a small number of amalgamated unions, then this will be possible, but only possible if the test of unlawfulness, as I described before, is met. With these points in mind, Labor is in a position to support the legislation.
I want to make some points about the process for this Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Bill 2020 and then some points about the substance of the bill to the extent that we can get across the substance of the bill in the less than half an hour that we've had to have a look at it.
On the process: I move:
That all words after "That" be omitted with a view to substituting the following words:
"the House defers further consideration of the bill until the first sitting of 2021, and:
(1) notes the bill is being introduced and debated on the same day;
(2) further notes there is no urgent reason for the bill to be introduced and debated on the same day; and
(3) recognises the bill may have implications for all unions and Australian workers and should not be rushed through parliament without proper scrutiny".
We're in the extraordinary situation where we're being asked to debate and vote on a bill that we haven't had time to read. I say to the government that you don't end up with good laws when you rush them through parliament and you force members in this place to vote on something they haven't had a chance to read. The minister and the government have had ample opportunity to explain whether there's an urgency behind this which means that people should be forced into a position to vote on it without having read it, and we've heard nothing. We've heard nothing from the minister or from the opposition, which supports the bill, about why we have to deal with this today.
The ordinary course would be for a bill to be introduced and then debated later, at a different sitting, so that people had the chance to read it and then consider it and vote on it. That's not happening here and so that's why I'm moving this second reading amendment. It would still, basically, have it come back in two sitting days—not tomorrow but the next sitting day after that—so there's no undue delay that I'm proposing here. I'm just proposing to have the opportunity to read the bill, which I don't think should be objectionable, to then consider how we're ultimately going to vote on it.
There will be people, I hope, who might have different views about the final bill—whether it's supportable or not—who would nonetheless all agree that everyone should have a chance to read it before we're forced to vote on it. Again, I'd invite the minister to explain why copies of the bill have not been provided to every member with more than 20 minutes notice. We've had less than half an hour's notice to be required to vote on this, and there's been no reason coming forward for that.
On the substance of the bill and the time that we've had: if the bill is forced to a vote today in the context where we haven't had the chance to read the bill, where the minister has declined the same courtesy to all members of the House that he's given to some by showing us a copy of the bill prior to it being tabled, with enough time to read it, then we're not in a position to support it. We can't vote for legislation that we haven't had a chance to read. One way the minister could increase support, potentially—if he wanted to—would be to give people additional time. But it is terrible process to ask members of this place to vote on something they haven't read! That should not become established process in this place. I repeat: if the minister is going to force a vote today then we're going to be forced to oppose it because we haven't had a chance to read it. I don't think that's an unreasonable position for people to take.
On the substance of it: before I came to this place I spent many years practising in this field—the laws that relate to workers and unions. It's a complicated area, especially when it comes to laws about how unions are structured. This is where there's potentially a lot at stake, because we're talking about assets that unions would own, the rights of members and how they're regulated, and that has implications across the board. One thing that I think I can say with a degree of certainty is that you don't want to make a mistake in laws that you pass about this because it can then result in litigation—unnecessary or unforeseen litigation. That's why we have the usual inquiry processes in this place. As well as the capacity to read a bill and to get people's views, we have the Senate inquiry process where, usually, the Senate is able to look over bills.
It may end up that the bill ultimately gets passed, but that it gets passed in a better form because people have had a chance to look through it and to see whether there are any unintended consequences. And in a circumstance where we're dealing with a field where there is a lot at stake and there is the potential for litigation if laws are wrong, we should not be rushing legislation through. We should be allowing the usual process of this parliament to be followed.
I repeat the point that's made in the motion: this may affect a number of unions. This may affect a number of unions that haven't been the subject of newspaper articles and drops from the minister but who have nothing to do with any of that, but across the board there may be unions that previously merged several years ago, into one union, who now will wonder whether this bill affects them. I just want the opportunity to hear from people across the board about whether they think this is going to affect them.
It may well be there's nothing objectionable in this. It may well be that there are no problems with this and it does have widespread support. I just don't know. We've heard some voices, already, raise concerns about the bill. Again, I presume they haven't seen it but they've raised concerns about it. That's why the usual process should be allowed to be followed. Given the potential widespread implications, I commend my second reading amendment to the House and note that it will do nothing more than give us one clear sitting day to read the bill and go and get people's views about this bill.
The original question was that this bill be now read a second time. To this the honourable member for Melbourne has moved an amendment that all words after 'That' be omitted with a view to substituting other words. If it suits the House, I will state the question in the form that the words proposed to be omitted stand part of the question. The immediate question is that the words proposed to be omitted stand part of the question.
The original question was that this bill be now read a second time. To this the honourable member for Melbourne has moved as an amendment that all words after 'That' be omitted with a view to substituting other words. The immediate question is that the words proposed to be omitted stand part of the question.
The question is that the bill be now read a second time.
A division having been called and the bells having been rung—
As there are now fewer than five members on the side for the noes in this division, I declare the question resolved in the affirmative in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.
Question agreed to, Mr Bandt and Mr Katter voting no.
Bill read a second time.