In its latest move against organised labour, the government brazenly lies that its “Ensuring Integrity” bill to amend the Registered Organisations Act protects the interests of workers and complies with International Labour Organisation Conventions.
The Bill, introduced to Parliament on August 16, sets out to give the Employment Minister, Fair Work Commission, other individuals and even employer bodies, punitive powers to initiate proceedings for the disqualification of union officials from holding office; for the deregistration of trade unions; to put a union into administration; and to prevent unions amalgamating.
This bill applies to all trade unions operating under the so-called Fair Work Act, although there are specific provisions designed to prevent the amalgamation of the Construction, Forestry, Mining and Energy Union (CFMEU), Maritime Union of Australia (MUA) and the Clothing, Footwear and Textile Union (CFTU).
It is based on the false premise that a “culture of lawlessness” pervades the trade union movement. This so-called “lawlessness” largely refers to breaches of industrial relations legislation or what is otherwise referred to as legitimate trade union business in the interests of workers – in fact the democratic right of workers and their unions to organise, agitate and educate their members in their own class interests.
The growing arsenal of anti-union laws can be turned on workers involved taking “unprotected” industrial action when an employer refuses to pay award rates of pay, or to address safety issues. Or it might relate to a union official seeking to enter a workplace to speak to members or for recruitment purposes.
The laws work in favour of the employers against workers’ interests, including health and safety.
The government’s Heydon Royal Commission, a politically motivated witch hunt against trade unions, made a number of recommendations to further undermine trade unions and criminalise legitimate trade union activity.
Employment Minister Michaelia Cash states that the legislation is in response to the recommendations of the Heydon Royal Commission. In fact it goes further than Heydon in his report.
Disqualification from office
The bill provides for the Federal Court to prohibit union officials from holding office if they contravene industrial and a range of other laws, are found in contempt of court, repeatedly fail to stop their organisation from breaking the law or are otherwise “not a fit and proper person to hold office in a registered organisation”.
The definition of “fit and proper person” includes “refusal, revocation or suspension of a right of entry or WHS [Workplace Health and Safety] permit”, certain criminal and civil offences and the catch-all “Any other matter the Court considers relevant.”
The onus of proof is on the union official to satisfy the Court that the order is not justified. These provisions only apply to events after the Act comes into force, but the Court can take previous conduct into consideration.
Incredibly, just about anyone can initiate proceedings – the Minister, the Registered Organisations Commissioner, or “a person with sufficient interest”. As it stands it could be an employer, a former disgruntled union member or rival candidate for the official’s position.
These catch-all provisions seek to punish officials for the conduct of their members, such as when they take action against bosses who breach enterprise bargaining agreements (EBAs). They also undermine other rights such as the right of entry, picketing, political actions, the holding of union meetings, etc.
It is nothing short of a signal to employers who are not already breaching agreements and ignoring safety regulations, that it is OK to do so, that union officials will be disqualified if union members attempt to fight back.
It also makes it an offence to continue to stand for office or continue to hold office, or influence the affairs of the union after being disqualified. Standing for office or continuing to hold office becomes a criminal offence punishable by a penalty of $210,000 or two years jail or both.
These provisions breach ILO Convention 87, Freedom of Association and Protection of Right to Organise which gives workers the right to elect their representatives.
Deregistration
The Federal Court may cancel registration of a union or divisions of branches if they have become “dysfunctional or are no longer serving the interests of their members.”
The Court must cancel registration of a union on a range of grounds including corrupt conduct by officials, repeated breaches of a range of industrial and other laws by the organisation or its members, non-compliance with orders or injunctions or the taking of obstructive unprotected industrial action by a substantial number of members.
This latter point reinforces the provisions for disqualification from office, as a deterrent to protecting wages and conditions in EBAs and awards and other legitimate union activities.
Once again the Minister or anyone with “sufficient interest” can apply for deregistration and the onus of proof is reversed.
And again it is an open invitation to employers to clobber workers. The pros and cons of registration are a debate in themselves. With the trade union movement on the back foot at the moment, there are seemingly a number of benefits in registration. These include the safety net provisions of legally binding awards, minimum wage and leave provisions and enterprise agreements for those who have them.
Administrator takes over
The Bill allows the Court to place trade unions or divisions or branches into administration or deregister them if they become dysfunctional or are no longer serving the interests of their members.
“Dysfunctional” includes multiple contraventions of the laws that result in disqualification of officials – i.e. breaches of bad laws restricting legitimate trade union activity and leadership from officials.
Dysfunctional might also be the engagement in financial misconduct by one or more officers – a crime better dealt with by police dealing with the offender.
Amalgamations
Finally, the Bill introduces a so-called “public interest test” for union amalgamations which has nothing to do with the public interest. Like all the other provisions in the Bill it is all about serving employer interests at the expense of trade unions and workers.
If the Fair Work Commission considers that a union has “a record of not complying with the law” then it must decide that any amalgamation is not in the public interest.
The question of what compliance with the law means is along the same lines as the provisions for disqualification from office and deregistration – disobeying bad laws and fighting for interests of workers.
As with the other provisions this runs roughshod over Australia’s legal obligations under international law. It denies the right of trade union members to express their wishes in democratically held ballots.
It gives a range of parties the right to interfere in the internal affairs of the unions involved by expressing their view in the Commission.
This section of the Bill expressly targets the proposed amalgamation of the CFMEU, MUA and TCFU.
When announcing the Bill, Cash said there were very real concerns about the CFMEU and MUA. “I mean, both of them have shown a long term disregard for the law,” she said on Melbourne radio 3AW.
“They’ve been essentially lawless.
“One of the reasons they feel they’ve been able to get away with it is because of their size,” Cash added either ignorantly or dishonestly. The MUA is not a large union.
ACTU Secretary Sally McManus, made the point in respect of the so called “public interest test”, that “the Bill does not even pretend to be about protecting union members’ interests or guaranteeing the democratic functioning of organisations, but instead it cites ill-defined economic justifications for overriding member’s democratic rights.”
She summed the Bill up saying, “Effectively it is about giving corporate Australia a say over what unions look like and how they operate. This is fundamentally undemocratic and will only result in achieving what all big companies want for themselves, even lower wages growth.
“This is not an ‘in the public interest test’, it is an ‘in big business’ interest test’.
“The Bill is wholly opposed by the union movement. It is politically motivated.”
Just last week a father of four died and another young worker was critically injured on building sites. So, while the government continues to turn a blind eye to the ongoing scandals in the banking industry that cost workers their savings at the same time it is stepping up its attack on trade unions to make it even more difficult for them to ensure workers can return home to their loved ones or receive their legal entitlements.
The bill has been referred to the Senate Education and Employment Legislation Committee which is due to report on October 9, 2017.
