Monday, 17 August 2015
Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2]; Second Reading
I thank all honourable senators for their contributions to the Fair Work (Registered Organisations) Amendment Bill debate.
Registered organisations play an important role in the affairs of workplace relations in this nation. Registered organisations are given special privileges under the Fair Work Act. With those privileges should come countervailing responsibilities. Every year, hundreds of thousands of people pay hard-earned wages—literally hundreds of dollars per annum—as dues to unions and, similarly, small businesses pay employer organisations in Australia. Those organisations are known as 'registered organisations'.
Regrettably, the rorts, the rackets and the rip-offs have been in the media on an almost daily basis. Think Michael Williamson, former federal President of the ALP; think Thomson, the former Labor member for Dobell; think Transport Workers Union; think CFMEU; and, indeed, think Mr Shorten's own union, the Australian Workers Union. In short, the community strongly favours these reforms.
To do nothing is not a responsible option. It is simply no longer tenable to argue that the present system is adequate to deal with or to discourage the kind of behaviour that we have witnessed. Regrettably, it is systemic. The government believes that the majority of registered organisations in fact do the right thing, and indeed in many cases maintain higher standards than would be required under this legislation. Nevertheless, there are systemic issues.
The Health Services Union case illustrates that, unfortunately, financial impropriety can and does occur under the current government's regime for registered organisations. The charges and allegations against former ALP member of parliament Craig Thomson, and former national president of the ALP Michael Williamson in their capacity as officers of the Health Services Union are detestable, shocking and unacceptable. Mr Thomson is still facing allegations that his 2007 federal election campaign was bankrolled by siphoning union money without authorisation. Mr Williamson has pleaded guilty to misusing almost $1 million of Health Services Union members' funds. He has also been accused of destroying documents and hindering investigations. Members of the Health Services Union are rightly asking how this gross breach of trust could happen.
Let's not forget: Mr Shorten and Senator Wong were the chief defenders of the Mr Williamsons and the Mr Thomsons of this world. Regrettably, Labor and the Greens political parties are the recipients of literally millions of dollars from these organisations, and that is why they are so silent on matters of corruption in these organisations. The Health Services Union investigation exposed the many significant shortfalls in the current framework. The investigation into Mr Thomson of the Health Services Union by the Fair Work Commission cost taxpayers almost $4 million. The report took three years to produce and, now, eight years after the initial breaches, court action is, unbelievably, still ongoing. Clearly there is something wrong with this framework. That is why there is a need for this bill.
The bill will establish an independent watchdog, the Registered Organisations Commission, to monitor and regulate registered organisations with enhanced investigation and information-gathering powers to ensure that the law is upheld. It will strengthen requirement for officers' disclosure of only material personal interests and related voting and decision-making rights, and it will change the grounds for disqualification and ineligibility for office. It will strengthen the existing financial accounting disclosure and transparency obligations. It will increase civil penalties and introduce criminal offences for serious breaches of officers' duties, as well as introducing new offences in relation to the conduct of investigations.
Importantly—and this is very important for honourable senators to note—this bill will fix the rushed, and quite frankly silly, amendments made by the former government under Mr Shorten that require even some shop stewards around Australia to disclose their husband's, their wife's or children's income and assets. These were requirements imposed by Mr Shorten, the current leader of the Australian Labor Party, and we want to fix up this mess—but more on that later.
I want to take time to address some of the concerns that have been raised by senators. In relation to penalties: the penalties will be imposed only by the courts. We know that the courts have had an issue with the current framework, when even Federal Court judge Anthony North made these almost unprecedented comments last year, 'The penalties are rather beneficially low—beneficial to wrongdoers'. And the Labor Party and Greens want to vote for these penalties that are 'beneficial to wrongdoers' to be maintained. In other words, the penalty does not fit the gravity of the offence. So why would any senator seek to vote to keep that situation in place when Federal Court judge Anthony North has come to that inescapable conclusion? It is very compelling, very persuasive and a matter of regret that the Australian Labor Party and the Greens have not succumbed to the logic and wisdom of Justice North on this occasion.
I simply pose the question: why should a corrupt union official who has ripped off hundreds of thousands of dollars from a union only be liable for a fine of $10,800 when for the same corrupt conduct a company director would be liable for five years imprisonment or a fine of $360,000 for ripping off shareholders? What is the material difference, what is the moral difference, between a company director ripping off shareholders, and a union official, or for that matter an employer official, ripping off members? Simple: there is no moral difference; there is no material difference; there should be no material difference between the penalties.
Some registered organisations have indicated concern that the new penalties will mean that they will have difficulty in recruiting people to take on responsibilities. If that is the case, it is a very sad reflection and, quite frankly, I do not believe it. It is very simple: no wrongdoing, no penalty. And the penalty of course would be imposed by the court. The only people who have anything to fear are those with wrongdoing on their minds.
A rigorous structure and process will be in place for investigation and prosecution of alleged wrongdoing. Officers who are operating within the law have no reason to fear taking on official responsibilities. The overwhelming number of officers who are already doing the right thing should be comforted to know that unlawful behaviour will be dealt with, thus ensuring ongoing member confidence in registered organisations as a whole.
More importantly, I would invite honourable senators to recognise that this bill actually cleans up the mess created by Mr Shorten and the former government, which does actually act as a disincentive to good people taking on responsibilities. Our legislation will amend the disclosure requirement for officers of registered organisations, to more closely align them with the Corporations Act.
I simply say to those who have railed against these provisions and the others I go through: 'Keep in mind, vote down this bill and all those provisions will remain.' And, what is more, we will be seeking from the Fair Work Commission their attitude in relation to pursuing all these Labor-Green imposed requirements that the Labor Party put into the legislation and which they championed. We will also remove under our bill the more invasive disclosure requirements for officers to report family members' income and assets, thereby more closely aligning it with the Corporations Act. These provisions were so ham-fistedly put into the legislation by Mr Shorten, Labor and the Greens and they are having inappropriate and dire consequences for those who want to be involved in the trade union movement or employer organisations. Vote down this bill and those provisions remain.
The bill will align the material personal interest disclosure requirements for officers, so the disclosures only need to be made to the governing body and not to the entire membership. Mr Shorten's legislation requires it to go out to the entire membership, a complete breach of privacy and something I would have thought would, at least, have excited the interest of the Australian Greens, but they are nowhere to be heard on this breach of privacy. It is okay because Mr Shorten did it! You can actually get rid of this provision by supporting the legislation.
We will limit disclosures of related party payments to payments made above a certain prescribed threshold and with certain other exceptions based on those exceptions in the Corporations Act for member approval of related party transactions. And we would provide the commissioner with a discretion to waive training requirements of officers of registered organisations. For example, if a member is a certified and practising accountant they would not have to go through the course being provided by the Fair Work Commission, another example of Mr Shorten's manic, ham-fisted approach.
The unions want this provision removed. As the ACTU said in its submission to the Senate inquiry it is concerned that this 'may dilute the content of the care and diligence duty'. But it is in fact the extra penalties that the unions do not want, and that is why they have taken this regrettable attitude to the legislation, and that is why the Labor Party is in lockstep with them and doing the same.
The dissenting report from Labor and Greens senators in the recent Senate Education and Employment Legislation Committee inquiry demonstrate their attitude to this legislation. That is, they oppose the bill in its entirety, simply as a matter of principle. They even argue against our amendments that the trade union movement supports.
Let me be very clear. Unless these amendments pass this parliament, officials of registered organisations will run the very real risk of being in breach of the laws as they stand today in relation to those issues identified by the opposition themselves. When they are enforced and all the people out there rightly complain about the enforcement of these provisions, we will say to them, 'Thank the Australian Greens and the Australian Labor Party for not removing these provisions when they actually had the opportunity of doing so and assisting in cleaning up certain elements in the trade union movement.'
It does seem that we get lectures from those opposite, including some from the crossbench, that this is somehow an ideological attack on workers and that we somehow believe that all unions are corrupt. Even if you think that this is what we think, you are wrong. Even if you were to park that to the side, why is it that Mr Paul Howes, a former secretary of the Australian Workers Union, was able to say:
The reality is I do not have any issue with increasing the level of requirements and penalties on trade unions for breaching basic ethics like misappropriation of funds.
It is pretty simple stuff. Mr Howes does not have a problem with this legislation.
Another former leader of the Australian Workers Union, and indeed of the labour movement, now a Fair Work commissioner, Ian Cambridge, made a similar commentary, as did former Labor Attorney-General, Robert McClelland, as did former two ACTU presidents and Labor ministers, Martin Ferguson and Simon Crean. Are they also, somehow, all embarked on this ideological attack on workers? I do not think so. No, they are decent trade union leaders, who have seen a once proud organisation brought into the gutter through corruption and they want to see it cleaned up, and we as a government do as well.
We heard earlier Senator Cameron asserting that the Ai Group opposes this legislation. In actual fact, the Ai Group supports the bill, noting that it was pleased that many of the suggestions had been taken on board by the government. I suppose it should not surprise, but why is it that truth and fact is not seen to be a consideration from the frontbencher brought into this place by Mr Shorten to lead on this debate? To make the false assertion that the Ai Group does not support the bill, to say it with a straight face and to assert that that is the truth, when it must be known that it is untrue, beggars belief. For Senator Cameron to come into this place and assert one thing, whereas there is a public submission saying the exact opposite, indicates the paucity of factual information that Senator Cameron brings to these debates.
Senator Cameron and the ALP have previously suggested that the bill proposes to amend the act to restrict officers from taking part in certain decisions. Each and every one of his allegations that he made relates to the legislation that is already in place and that we are seeking to amend.
Courtesy of the Australian Labor Party's ham-fisted approach in attempting to gazump the coalition when we announced our policy for a Registered Organisations Commission, Mr Shorten introduced all these, quite frankly, foolish provisions. They should be removed. They do not assert that this is part of the government's legislation. It is already there, courtesy of the ALP-Greens forcing this legislation through the Senate without proper debate. In his ham-fisted approach all the ills that Senator Cameron refers to are in fact already in the legislation, and we seek to remove them from the legislation and relieve Labor from their own embarrassment.
The only thing we are really asking for is that there be an increased regime of penalties and a bit more transparency. Senator Cameron, the Labor Party and the Greens want to live with all of these things that they are against for fear of one thing—increased penalties. Why are they scared of the courts imposing penalties if a wrongdoing has been uncovered? They will defend the Michael Williamsons of this world and they will defend the Craig Thomsons of this world irrespective of the mountain of evidence that has been provided in both those cases.
This is a policy on which the government went to the last election. It was well and truly ventilated and put before the Australian people. I recall debating matters workplace relations with Mr Shorten in a televised debate broadcast nationally and the registered organisations commission, Mr Shorten could not criticise and it is quite obvious why. Yet here in this place, they will use their numbers to try to once again block any attempt to clean up the trade union movement—an attempt that has the support of two former ACTU presidents, two former distinguished secretaries of the Australian Workers Union and so the list goes on.
People who were the heart and soul of the union movement, those who were anxious and concerned to ensure that the union movement had a good reputation, their reputations are now being trashed by the Labor Party because they want to preserve the domain of the corrupt union official. We believe overwhelmingly union officials are honest, honourable individuals that have a very important role to play in the workplace relations landscape. However, it is clear when you have got this legacy of issues from a whole range of unions that there has to be some degree of clean-up. The Registered Organisations Commission would provide such a mechanism. The only fear that people need have if they do wrong is they will not be able to weasel around for years on end like Craig Thomson was able to do and keep the hapless Gillard government in power; they would be brought to account lot quicker with a lot more serious consequences.
We introduced this legislation within the first sitting week of the parliament because we considered it to be so important. Now it has come before the Senate yet again and I invite honourable senators to support this very important measure.