Wednesday, 9 December 2020
Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Bill 2020; Second Reading
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
The speech read as follows—
This Government is committed to ensuring that the industrial relations framework continues to adapt and change to meet the needs of businesses and workers alike.
This year—more than ever—has highlighted the need for flexibility for workers and employers—and the organisations that represent them.
This Bill will give greater flexibility to constituent parts, such as branches and divisions, of amalgamated registered organisations, by providing them with an opportunity to withdraw from an amalgamation if that will better serve them and their members.
This Bill will amend the Fair Work (Registered Organisations) Act 2009 (the Act) to address a current restriction in the Act—which only provides a constituent part of an amalgamated organisation with a three year window to withdraw from the amalgamated organisation—more than two years, but no later than five years, after amalgamation.
That outer time limit of five years restricts the ability of registered organisations to adapt to, and align their governance structure with, the changing needs of members.
There are various circumstances that might give rise to a constituent part of an amalgamated organisation forming the view that the amalgamation is no longer serving the best interests of its members.
For example, where one part of the organisation has a record of not complying with the law and this causes reputational damage for the amalgamated organisation, another part may seek to dissociate itself from those activities.
In other circumstances, parts of an amalgamated organisation may have outgrown the need for amalgamation, having developed sufficiently to operate independently, efficiently and effectively. In these cases, withdrawal from amalgamation may be highly desirable.
Under the current law, beyond the five year time limit for withdrawal, an organisation must take the extreme step of seeking deregistration of the entire amalgamated organisation, which may not even be achievable. This process would be costly and time consuming, and could leave members without representation while the organisation is deregistered and new organisations registered.
Even where deregistration is possible, the new organisation must seek registration in its own right and is not able to transfer members or assets from the previous amalgamated organisation, adding to the cost and delay.
The Bill remedies the shortcomings of the existing framework by improving the existing process under the Act to allow constituent parts of amalgamated organisations to apply to withdraw from amalgamation beyond the five year time limit. The amendments will allow the constituent part—which could be a branch, division or part—to apply to the Fair Work Commission to hold a ballot of its members on whether to withdraw from the amalgamation in certain specified circumstances.
The Commission must have regard to specified factors before approving an application for a ballot of members to vote on withdrawal from amalgamation outside the existing three year period. These are:
Where the Commission determines that the organisation has a record of non-compliance with workplace or safety laws but the constituent part has not contributed to that record, the Commission must accept the application.
A clear short-coming of the current law means that even if the performance or actions of one part of an amalgamated organisation fall beneath proper, lawful standards, and even if other members of the organisation who do the right thing do not believe it is in their best interests to remain part of the organisation, they are not able to leave, even where the majority of its members wish to.
Within the union movement, there are clear examples where the poor conduct of one part of a union is impeding the ability of other law-abiding divisions of the union to work effectively in the interests of their members. Now constituent parts who have been amalgamated beyond the current 5 year limit will have the freedom to break away and better serve the interests of their members.
The Bill also provides that, where a part successfully withdraws from the amalgamation, the membership of that part will become members of the newly registered organisation. This ensures the new registered organisation can maintain its membership and assets and its members can continue to be represented by their newly registered organisation. The Bill also sets out a process for how the rules of the amalgamated organisation and newly registered organisation are to be accommodated under the new arrangement.
The Bill makes no changes to the requirements for the members of registered organisations and their constituent parts to vote and agree to amalgamation or withdrawal from amalgamation.
To ensure that the legislation is working effectively, the Bill requires a review of the operation of the amendments within two years of their commencement.
These are sensible changes that support registered organisations to function effectively and in the best interests of their members.
The bill before us, the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Bill 2020, represents a commonsense, reasonable and technical amendment to the registered organisations act, 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 is a democratic process involving a secret ballot of the members of that part of the union seeking to withdraw from the amalgamation. The problem is that these provisions only apply between two and five years after an amalgamation. That's a narrow window and it doesn't contemplate the possibility that a demerger could happen after that time.
The drafters of the original legislation most probably did not foresee circumstances in which an amalgamated union might wish to withdraw from the merger after five years, but, as with any partnership, there are often very good reasons that it might be better for the partners to go their separate ways and operate independently. This bill corrects that by creating an exception to this time limitation via a new appropriateness test in clause 94A of the bill. This provision allows the Fair Work Commission to grant an application for a withdrawal ballot if certain conditions are met. These conditions guide the discretion of the Fair Work Commission. A proposed new section, 94A(2), sets out these conditions, which include whether the amalgamated organisation has a record of 'not complying with workplace safety laws and any contribution of the constituent part to that record' and the likely capacity of the constituent part, after it withdraws from the merger, to promote and protect the economic and social interests of its members.
If a secret ballot of members of the constituent part seeking to withdraw from the amalgamation is successful, the legislation then sets out some clear rules for how the separation takes place. It will require the applicant to file its plans for withdrawal, which include the rules of the amalgamated union and the proposed new union, the names of the respective organisations postwithdrawal and the allocation of 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.
The bill also makes provisions for ballots other than postal ballots conducted by the AEC. This is to recognise that some unions are currently exempted from the requirement to use the AEC for union elections. It also recognises that a number of unions have an existing custom and practice of having attendance ballots as their preferred means of collective decision-making.
I note the bill provides for a review of its operation within two years of its enactment. This is a safeguard to ensure that the bill is operating in the manner intended.
I said at the outset that this is a sensible amendment bill that reflects the fact that some mergers have gone beyond the three-year limitation that currently exists in the Fair Work (Registered Organisations) Act 2009. Like the nature of work itself, trade unions change to reflect the workforce they represent. As industries grow, shrink or simply change, so does the representation of the workers in those industries. Work and workplaces are ever-evolving, and we should recognise that. A union must be relevant and able to represent its workers. We also need to recognise the principle of freedom of association, which includes a right to join or leave a group, and that right doesn't only operate within a three-year time period. As such, Labor supports the bill.
I rise to speak on the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Bill 2020. This bill facilitates the expedited splitting up of amalgamated unions. Not only are the government expediting the splitting up of amalgamated unions; they're also expediting this bill through parliament. I guess that is not new—this government rushes through legislation that it doesn't want any scrutiny of or any light shone on, and it's doing it again—but shame on the Labor Party for being on a unity ticket with the government, for rushing through legislation that really has not been looked at, that really has not been interrogated and that will have a massive impact on the union movement and on workers. Here they are sitting here voting with the government, saying, 'Yes, let's push that through within the hour. No-one will see what's happened.' It's an absolute shame!
The government has sprung this bill on the parliament, with little warning, in a complete act of contempt for this place, the union movement and workers. This bill has implications for all workers and all unions, and it should not be rushed through parliament without proper scrutiny and proper inquiry. As with all legislation with broad implications, we need a consultation process so we are all clear on what exactly we are being asked to vote on. But we won't get that opportunity to do that today, will we?
All of us in this place know that the Liberal and National parties are no friends of unions and no friends of workers. That much is pretty clear. You couldn't trust the government on industrial relations as far as you could throw them. How many attempts at union busting have we seen from that lot over there over the last few years? What evidence have the government ever provided that they want to see unions succeed in protecting workers and advocating for workers' rights? If the government were actually concerned about workers and unions and their ability to organise effectively, they wouldn't be trying to push through legislation in the space of half a day on the second last day of the sitting for the year—taking the trash out.
This is a government that cut some of the most vulnerable workers out of JobKeeper, putting at risk not just workers and their livelihoods but also public health. This is a government that just last year tried to force through union-busting legislation that sought to make union amalgamations even harder than massive corporate mergers. They tried to put the right to strike even further out of the reach of workers. They allowed and celebrated cuts to workers' penalty rates. They weakened workers' rights to good conditions and pay protection under cover of the pandemic response legislation. And they are further entrenching insecure work. These people are the ideological children of John Howard. The government have given no indication that the Liberal and National Parties have evolved since they tried to smash the union movement and people's rights at work with their terrible WorkChoices legislation. The coalition's dearest wish is for the state to be able to interfere in the functioning and establishment of unions whenever they can. To benefit businesses and further their neoliberal politics, the government want unions to be as hobbled and powerless as possible.
We want to be sure that this bill is not designed to fragment the union movement and dilute the power of workers to organise and stand up for themselves against bosses. We want to ensure that any bill affecting the union movement strengthens the power of workers and results in improvement of worker pay and conditions. Unions are a vital part of our civil society. They fight for fair and safe conditions for workers and make important contributions to our democracy. As a long-time union member, I am committed to fighting for the rights of workers to organise and to protect our unions. I will be moving a Greens second reading amendment to refer this bill to inquiry for report so we can hear from the people who will be affected by this legislation and make an informed decision. There is absolutely no rush to push this bill through today or even tomorrow. We can have an inquiry. We can come back early in the next year and then we can decide, based on the information we have, whether or not we and others should support this bill.
Under these conditions, we will not be voting for this bill. We are not here to simply tick and flick whatever bills the government puts in front of us. We are here to make sure the bills are properly looked at. That's our job in this chamber. This is not the way laws should be made. This bill must be referred to inquiry so the Senate can do its job and ensure legislation that affects workers' lives is properly looked at. I move the Greens' second reading amendment and commend it to the Senate:
At the end of the motion, add: ", but the Senate:
(a) notes that the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Bill 2020 was introduced, debated and passed through the House of Representatives on the same day, Wednesday 9 December;
(b) further notes there is no urgent reason for the Bill to be rushed through Parliament;
(c) recognises the Bill may have implications for all unions and Australian workers and should not be rushed through without proper scrutiny; and
(d) refers the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Bill 2020 to the Education and Employment Legislation Committee for inquiry and report by 4 February 2021".
I rise to speak on the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Bill 2020, a bill that was introduced into the House shortly after 9.30 this morning—today! And now this government is ramming it through the Senate less than nine hours later. On what is International Anti-Corruption Day, I want to point out that we have waited two years for a federal anticorruption watchdog bill. This government claims it's been too busy to get onto it. Yet, in less than one day, it's magicked up a bill that affects unions and potentially dilutes their power. It can ram that through, but it can't ram through an accountability measure that would apply to its own mob to clean up their appalling behaviour. The Senate is not a rubber stamp. This government is treating it like a rubber stamp.
The Greens have moved for this bill to go to a Senate inquiry. Industrial relations laws are complex at all times but particularly when they pertain to union operations and the rights of workers to organise themselves. You don't want to get this wrong. Yet this morning the House passed this bill within 41 minutes, and many of the speakers—although there weren't that many, because there were only 41 minutes to debate it—pointed out that they hadn't had time to read the bill. What an absolutely disgusting process—to force parliament to pass legislation that people haven't even read.
If there's a genuine sense of urgency, there can be some flexibility shown. The minister in the House was invited to speak to urgency and could give no such explanation. There is no reason why this bill is urgent. There is no reason why the Labor Party should be supporting this bill, but one wonders if they want this dirty deal over and done with so that, by the time Christmas is done and we come back in the new year, people will have forgotten about it. Perhaps that's their motivation for siding with the government to ram this legislation through without even subjecting it to a Senate inquiry.
That's why the Greens are moving for this bill to go to an inquiry. Perhaps this bill is innocuous, but we haven't had the chance to hear from those who've scrutinised it and from those unions who will be potentially affected by it, to know what impacts it might actually have. It is reprehensible that a parliament can introduce a law, debate it in one house, pass it, introduce it in another chamber and pass it, all in one day, without an inquiry, when it potentially has such far-reaching impacts on workers' rights and on workers' ability to organise to protect what few rights they have left after seven years of this awful government attacking them and their rights at work. So we will not be supporting this bill, and we will be urging the chamber to support our amendment to send this bill to inquiry, which is the normal process in the Senate. That's what we are here for. That is our job.
I'll finish off by repeating that we've waited two years for an anticorruption watchdog bill. Within less than one day, we get a union-busting bill from this awful government. Their priorities are perfectly clear.
One Nation supports the general thrust of the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Bill 2020 because it upholds the principle of freedom of association by enabling constituent parts of registered organisations that have amalgamated with other organisations to apply to the Fair Work Commission to hold a ballot of their members on whether to withdraw from the amalgamated organisation outside the current limited period of five years post amalgamation in specified circumstances. We agree with the principle of freedom of association and the right of people to withdraw from an entity. However, we want to note that, while the Labor Party and the Liberal Party have joined to push this through, we are not supportive of the abuse of parliamentary process, because we haven't had time to even look at this bill properly. We don't know if there are any hairs hidden in it or any hidden traps in it. So we would request that we be given more time to assess important bills like this.
We know that this is directly in response to the CFMMEU's dysfunctional mess, as its own leaders have called the CFMMEU at the moment, with, in the press, accusations of bullying by senior members of the CFMMEU. We understand this is done to enable those people to de-amalgamate, but we need more time to assess such bills. Why was it held up until today? This does not augur well for the major bills that we hope to see pretty soon and that we need to give proper consideration—bills that would talk about casuals, about compliance issues, about enterprise agreements and awards, and about greenfields agreements. This is not the way this parliament should be addressing serious matters. This is just rushing through, bulldozing through. So we want it noted that we do not like this process. While I've seen a summary of the bill, we haven't seen the details. We understand there are some safeguards, but we can't understand why the government would dump something like this on us and give us just five minutes to go through the whole bill.
We understand that the other bill has 111 pages and that its explanatory memorandum is up to 221 pages. I'm very concerned that the industrial relations club, which runs this country's industrial relations situation and creates problems for it to solve and perpetuate its own work, is going to further complicate the current complex, fractured, broken industrial relations regime in this country. The government has consulted on this further bill behind closed doors—a process that has not been public—and we are afraid, with good reason, that the people of Australia will be let down, that honest workers and honest employers will be let down. Small business is currently being smashed by the industrial relations club. All that is shown by pushing this bill through so quickly is that the Labor Party, the Liberal Party and the National Party are together again as the Liberal-Labor duopoly. That is not good enough for the workers of this country, honest workers who are getting screwed, and honest small businesses who cannot compete because they're lumbered. They don't have the hundreds of lawyers at their disposal. They can't afford that. Small business is being cruelled in this country by an industrial relations club: the lawyers, the courts, the Fair Work Commission, the union bosses of some of the large companies, the employer associations. They make it so complex that they create problems they can rush in as white knights and solve. This has got to stop. We have got to simplify industrial relations.
The government is telling us we need to pass the next bill quickly, as well. We understand the government wants to send it to committee, which is good, but the bill has not had due process in its construction, in its drafting. That and the bill before us show that the government and the Labor Party do not respect the parliamentary process. We should be scrutinising this bill to see its effect on everyday Australians, and especially on small business. We need to simplify industrial relations, to get it back to the basics. Industrial relations is, essentially, a relationship between employees and employers. That's what it is. It's about relations at work, relations in industry. What the IR club has done in this country is fracture that relationship, so employees go to union bosses or lawyers and employers are forced to go to courts and lawyers. That doesn't make a relationship. It separates and destroys a relationship. That's the fundamental thing that's wrong with industrial relations in this country. Managers can't manage, employees can't work and there are restrictions galore. We're coming out of a COVID crisis, supposedly, and the government's own restrictions, with this around our necks. When are people going to wake up in this country? Fundamentally, industrial relations is about a relationship between an employer and their employee. That's it.
If this is the process on this bill, we will be abstaining. We know that Labor and Liberal and the Nationals are going to get together again. We do make note that we support the de-amalgamation provisions, but we want to see the details, and we give warning that we will be scrutinising the larger bill that is coming, because if this is the way the government does its industrial relations—without adequate consultation—then all we can see is we're terrified of increased complexity which will destroy small business, destroy employees and destroy employment.
Firstly, can I thank those who have contributed to the debate. The government is pleased to be making these changes to ensure that registered organisations can choose the governance structure that best represents the people they are designed to serve—their own members. We are committed to ensuring that the industrial relations framework continues to adapt and change to meet the needs of business and workers alike and that it upholds the fundamental principle of freedom of association. The bill will give greater flexibility to constituent parts such as branches and divisions of amalgamated registered organisations by providing them with an opportunity to withdraw from an amalgamation if that will better serve them and their members. It addresses a current restriction in the Fair Work (Registered Organisations) Act 2009 which only provides a constituent part of an amalgamated organisation with a three-year window to withdraw from the amalgamated organisation more than two years but no later than five years after amalgamation. That outer limit of five years restricts the ability of registered organisations to adapt to, and align their governance structure with, the changing needs of members.
There are numerous valid reasons why a constituent part may want to withdraw from an amalgamation beyond the five-year window. The bill remedies shortcomings in the existing framework by allowing constituent parts of amalgamated organisations to apply to withdraw from that amalgamation beyond the five-year time limit. These are sensible changes that will be reviewed within two years of commencement to ensure that they are working effectively and meeting their objective. I commend the bill to the Senate.