Government and governance, Law | Australia

13 November 2019

The amendments proposed by the Ensuring Integrity Bill are in direct violation of Australia’s labour and human rights obligations under international law, Anthony Forsyth writes.

Recently, the Senate Committee issued its report on the Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 (EI Bill), with senators generally following predictable party lines with Coalition senators supporting passage of the Bill unamended and Labor and The Greens opposing it.

If legislated, the provisions of the EI Bill would directly interfere with the rights to freedom of association and independent functioning of trade unions guaranteed by, among other international instruments, the International Labour Organization (ILO) Convention 87 on Freedom of Association and Protection of the Right to Organise.

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Schedule 1 of the EI Bill seeks to expand both the circumstances in which a person may be disqualified from office in a union and the actors who may initiate disqualification. It introduces a criminal offence for disqualified persons who continue to hold office or act to influence the organisation.

These provisions unjustifiably interfere with freedom of association and the right of workers and employers to elect their membership of a union in full freedom.

Further, Schedule 1 expands the grounds for disqualification of union officials to include ‘designated findings’, which include findings that an official has committed a criminal offence under a ‘designated law’ – for example the Registered Organisations Act (RO Act), Fair Work Act 2009, Building and Construction Industry (Improving Productivity) Act 2016, and federal and state work health and safety laws – or a finding that an official has contravened a civil penalty or civil remedy provision of any of these laws.

This proposed definition conflates criminal and civil violations, potentially roping in a range of minor or technical contraventions, such as right of entry breaches in response to serious safety concerns or the late lodgement of a union’s financial records, things which surely do not justify disqualification from office.

Schedule 1 also proposes new provisions that would enable the Federal Court to make orders for the disqualification of an office-holder for a specified period of time based on a wide range of grounds, including designated findings being made against that individual, multiple failures to prevent contraventions by the official’s organisation, or that the official is not a ‘fit and proper person’.

This would constitute a sweeping new regime for the disqualification of union office-holders, and imposes unwarranted forms of double punishment in certain circumstances such as right of entry breaches.

Schedule 2 of the EI Bill proposes to significantly expand the grounds on which the Federal Court may order deregistration of a union, and enable a wider range of actors to seek deregistration. At present, deregistration is a remedy available to remove the benefits of registered organisation status from a union that has acted as a delinquent, such as by repeatedly taking unprotected industrial action.

However, Schedule 2 would enable deregistration to be obtained, for example, because a union has engaged in ‘obstructive industrial action’ or because designated findings have been made against it.

It is clear that the main target of these new provisions is the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). While this is in itself a spurious basis for expanding the capacity to obtain deregistration, the government has made no case whatsoever for adding multiple new grounds of deregistration that would apply not only to the CFMMEU but to all registered unions.

The proposed deregistration provisions in Schedule 2 further erode the balance between rights and obligations for trade unions and may lead some unions to question the value of continuing to remain federally registered organisations which are subject to the disciplines of the Fair Work and RO Act frameworks.

Schedule 4 of the EI Bill seeks to introduce a new ‘public interest’ test for union amalgamations. This is sufficiently regulated by the RO Act, which essentially provides for a democratic process involving the members of the unions seeking to merge, overseen by the Fair Work Commission.

The provisions of Schedule 4 are a clear violation of the right of workers to determine their constitutions and rules in full freedom, in accordance with ILO principles.

There is no public policy justification for this major proposed change to Australian regulation of trade unions. It is well known that the government was strongly opposed to the amalgamation in 2018 which created the CFMMEU and that an earlier version of the EI Bill included provisions intended to thwart that merger.

The irresistible conclusion is that the proposed public interest test is not intended to address any genuine concern or deficiency in current regulation, but rather is simply about combating union power.

That, in a nutshell, is what the EI Bill is all about. Since 2013, the Abbott, Turnbull, and Morrison governments have constructed the state apparatus to take down Australian unions with the Heydon Royal Commission and the series of restrictive laws which have followed it.

While some measures were necessary to address genuine instances of union corruption, they were fewer in number than Commissioner Heydon claimed. The EI Bill is the latest in that legislative series, but the one that – through its massive over-reach – displays the Coalition’s true objective.

Conservatives and employers in Australia can’t make up their minds on whether trade unions are a relic of the past, facing imminent demise, or a serious threat that must be obliterated.

Just as industry groups – the Australian Mines and Metals Association and others – were frothing at the mouth last year over the calamitous potential of the CFMMEU merger, the National Retail Association claimed that the ongoing National Union of Workers and United Voice merger could lead to coordinated industrial action causing havoc across retail supply chains.

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What they are really worried about is workers acting through a democratic organisation to exercise power in the workplace.

The EI Bill could make future union mergers of this kind harder to achieve. It would make it easier for union officials to be disqualified from office and for unions to be deregistered, potentially on trivial grounds. It offends internationally accepted labour law and human rights norms. It should not become law.

The cross-bench senators will determine whether the EI Bill makes it onto the statute books. Senator Jacqui Lambie has publicly expressed her view that if Victorian union leader John Setka resigns from his position, she will vote against the EI Bill. Setka isn’t going anywhere, so that looks like a vote in favour of the EI Bill.

This makes the position of the two Centre Alliance senators even more critical. Senator Rex Patrick indicated in the Senate Committee Report that the government would need to make significant amendments to the EI Bill to get his party’s support. Senator Patrick sees the need to curtail the unlawful conduct of some construction industry unions and officials, but he views the EI Bill as taking a ‘sledgehammer’ approach ‘when only a nutcracker is needed’.

It’s therefore looking like the EI Bill will get up in an amended form – but those amendments will not be sufficient to counter the myriad ways in which this proposed legislation tears down the long-established human rights of Australian workers.

This is a summary of the author’s submission by the Australian Institute of Employment Rights written with Renee Burns and Mark Perica, to the Senate Committee inquiry on the federal government’s Ensuring Integrity Bill, updated to reflect more recent developments. The full AIER submission is available here.

This article is based on a piece from the author’s own blog ‘Labour Law Down Under’.

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