BILLS;Fair Work (Registered Organisations) Amendment Bill 2014;Second Reading – 11 Feb 2015

This is the third time in my recollection that I have risen to speak in opposition to a bill of this kind. The first time was March 2013 in response to a private senator’s bill introduced by Senator Abetz while Labor was in government. Then the coalition tried with a government bill in May last year, which I am pleased to say the Senate defeated. Now we have the third iteration of this ideologically-driven nonsense. It is starting to feel a bit like Groundhog Day.

Each iteration of the bill has been different, but the fundamental purpose has been the same: drown trade unions in red tape and impose exorbitant penalties so that it becomes impossible for them to do the work that they are expected to do—which is to represent the working people of Australia. And this is from a government that promises to reduce red tape, except when it comes to trade unions. No, they pretend to stand up for the trade union members, saying they are trying to increase accountability and transparency, but is it in the interests of Australian workers who join a union to have the costs of their union membership driven up by unnecessary red tape? Is it in their interests for the fees they pay each year to be rendered worthless because the union they joined cannot effectively operate? What the Abbott government is really doing is standing up for their mates in big business by attempting to stifle unions.

Australia’s trade unions do important work: they represent their members in courts and industrial commissions; they campaign for policies that improve the conditions of working Australians; and they engage in collective bargaining on behalf of their members. As much as those opposite would hate to admit it, the Australian trade union movement is the largest membership based social movement in this country. In fact, the great standard of living that most Australians enjoy is due, in large part, to over a century of hard work by Australian trade unions to ensure that our prosperity is shared by all. This does not sit well with the Abbott government, which would rather see Australia’s economic gains go to their mates in big business than shared with the workers who helped to create it. The problems of corruption and malfeasance within some unions is a convenient excuse for those opposite to introduce legislative changes, which they know would effectively silence the union movement, including the overwhelming majority of officials who are doing the right thing by their members.

The government promised during the election that they would regulate registered organisations in the same way as corporations. But with this bill they are breaking that promise, because this bill imposes more onerous reporting requirements and tougher penalties on registered organisations than those imposed on company directors. Let me highlight a couple of areas where the bill is tougher and more onerous than the Corporations Act. In a number of sections the level of penalty could be seen as inappropriate and as going further than the Corporations Act. For example, there is a maximum penalty of $85,000 for failing to respond within 28 days to a member request for a statement of membership. The duties in sections 285, 286, 287 and 288 of the RO Act are based upon sections 180, 181, 182 and 183 of the Corporations Act. The maximum penalty for a ‘serious contravention’ of 180, 181, 182 or 183 of the company act is $200,000 for an individual and $1 million for a body corporate. This is less than the amount in the bill and, unlike the Corporations Act, the penalties in the bill would automatically increase as the value of a penalty unit increases.

Much higher penalties are applicable to breaches that are a ‘serious contravention’. Defining a ‘serious contravention’ as a contravention that is ‘serious’ does little to clarify that meaning, despite a similar provision appearing in section 1317G of the Corporations Act. Given that the definition of serious contravention draws on section 1317G, there is a notable distinction in the Corporations Act: under certain conditions no pecuniary penalty may be awarded at all. It is apparently proposed that penalties be available irrespective of whether the conduct concerned meets the definition of a ‘serious contravention’.

Before I explain what else I find so fundamentally wrong with this bill, let me outline a couple of things that I believe everyone in this place can agree upon. We agree that problems such as corruption and misappropriation of funds have taken place in some trade unions. We agree that it needs to be stopped and that those responsible need to be brought to account under the law. Where we on this side of the chamber disagree with the government is with their suggestions that corruption is somehow endemic to the union movement, or more widespread than other areas of society, such as business. We have had a multitude of examples in the financial industry of investors losing their money on the basis of misleading advice—collapses such as Westpoint, Timbercorp, Storm Financial—yet this government has sought to water down financial protections. On the other hand they sought to establish a royal commission into union corruption. It is just another example of the twisted priorities of this government. We know that those opposite will try to claim that Labor, in opposing this bill, is not serious about keeping trade unions accountable, but that is just their rhetoric.

Let us not forget that it was the Labor government which introduced laws to strengthen the accountability framework for registered organisations. In fact, the penalties we introduced in 2012 were tougher than those introduced by the current Prime Minister when he was the minister for workplace relations. Quite frankly, I find utterly offensive the suggestion that my Labor colleagues and I would condone corrupt behaviour. I am not convinced that those opposite think that this bill is the solution either. It is quite insulting to hardworking union officials and employer organisations to be told that their work is corrupt, and that they might condone that corrupt behaviour. The government are simply using this as a convenient vehicle to introduce a regime which they know would hobble the union movement. We already have an accountability framework for registered organisations that works well. Under the Fair Work Act, officers of registered organisations already have fiduciary duties similar to those of directors of corporations. The act requires officers to disclose their personal interests, and ensures officers disclose when payments are being made to related parties. The act also requires officers to exercise care and diligence, to act with good faith, and to not improperly use their position of political advantage. The act prohibits members’ money from being used in internal elections. It allows for criminal proceedings to be initiated where funds are allegedly stolen or obtained by fraud, and the Fair Work Commissioner can share information with the police as appropriate. In the words of the Australian Council of Trade Unions in their submission to the Senate inquiry on the previous version of this bill: ‘The bill creates a large volume of new regulation (without evidence of its necessity), and a new Commonwealth regulator (where one already exists).’

Mr Deputy President, the onerous provisions of this bill, the Fair Work (Registered Organisations) Amendment Bill 2014, would have the effect of dissuading people in both employer and employee organisations to take on official responsibilities in a voluntary capacity. Many registered organisations rely on their members to take on volunteer roles, but the penalties in this bill could make taking on these roles too much of a risk. Even if the bill did what the government claimed it did and regulated registered organisations in the same way as corporations—and I have already given a couple of examples of how that does not work—it should be recognised that registered organisations are not like corporations. Their officials and board members do not receive the sort of remuneration that corporate executives and board members receive. Unlike most corporations, many registered organisations have elected officials who work without remuneration in a voluntary capacity. The rights and interests that members of registered organisations have are fundamentally different to those that shareholders have in for-profit corporations. Registered organisations are established to provide advice and representation—not to generate wealth for shareholders, like for-profit corporations.

This government bill currently before us is just a solution looking for a problem. We know that this is in the line of introducing Work Choices, whether it be by another name or not. If the government is serious about not introducing Work Choices, I would suggest that they release the terms of reference of their review and that they immediately rule out cuts to penalty rates, allowances, the minimum wage and other working conditions. Before the election, Mr Abbott promised he would not touch workers’ conditions. He promised he would not cut wages or penalty rates. If that is the case, why will the government not release the terms of reference for its proposed review of the Fair Work laws? They have already released the terms of reference for their review into the workplace relations system. The Abbott government must immediately rule out attacking Australian workers’ penalty rates, their minimum wage and other working conditions; conditions which trade unions work day and night to make sure are available for those that need them. I also have to ask: if the coalition are intent on proceeding with this bill, why have established the royal commission? What is the point? If the government that promised to ‘end the waste’ is pouring millions of dollars into solving a problem they already claim to have the answer to, what is the point? Why are you doing it?

Just earlier, in debate on the previous bill, we heard Senator Brandis talk about reducing red tape—in fact, he waxed lyrical for about 20 minutes on the importance of removing commas. All I can say is, the government really need to focus on what is real, and to stop their ideological arguments. By bringing this bill forward before the royal commission is concluded, I wonder if the government is just trying to pre-empt the outcome. The fact that we are debating this bill today exposes the whole royal commission process as the expensive, political witch-hunt that we always said it was. This is a government which came to power on a promise of being an adult government—we have all seen how that has turned out! They came to power on a promise of ending waste and mismanagement. Yet this government wastes time and taxpayer dollars on fighting ideological battles. Maybe if they had spent the last 520 days—before ‘good government’ began—working, and focusing on issues that were important, and caring about the people of Australia rather than trying to attack the trade unions, they might have done a bit better.

We all know what the end game in all of this is. As much as the Abbott government tries to claim that Work Choices is ‘dead, buried and cremated’, we know that they cannot help themselves. We know that it will come back in some way, shape or form. Work Choices is in the coalition’s DNA. It doesn’t matter whether Tony Abbott, or Malcolm Turnbull or Julie Bishop is leading the government; they all support the removal of the rights and conditions that unions have fought for decades—cutting the minimum wage; stripping away penalty rates; undermining collective bargaining. The coalition really do not like that part about collective bargaining. The job of reintroducing Work Choices would be so much easier if they weakened the union movement, and we know that this is what this bill is designed to do.

We know the coalition is intent on destroying unions, but I am curious to know whether they have also considered the impact of this bill on other registered organisations—the ones that represent employers. The previous iteration of this bill—the 2013 bill—was referred to a Senate inquiry, which heard from a number of registered organisations, including employer representatives. I know that employer groups and unions are at odds on a lot of issues, but the registered organisations that submitted to the inquiry were united in their opposition to the bill. Let me remind you what one of those organisations, the Australian Industry Group, said in their submission:

The Bill would impose a far more onerous regime for officers of registered organisations than what applies to directors of public companies. The regime, if enacted, would undoubtedly deter persons from standing for office in employer organisations. In practice the provisions of the Bill would seriously impede many organisations from carrying on their daily business operations.

I doubt that the Abbott government would have ignored the concerns of employer groups when they introduced this bill, and I am sure the employer groups were banging on the door. But I presume that they just considered them to be collateral damage in their crusade against the union movement. We on this side are concerned for the viability of registered employer organisations, as we are for registered employee organisations. After all, they have an important role to play in our workplace relations system in helping employers to understand their rights and their obligations under the law. It is interesting to note that the employer representatives that support the bill, as they supported the previous versions of this bill, are not registered organisations—bodies such as the Australian Mines and Metals Association, for example. What might be more interesting is to see how these organisations might react if the government proposed to regulate them in the same way.

The claim that is often levelled at Labor members and senators by the coalition is that we do not care about business, we do not understand business, we have not run businesses. Let me tell you that I was self-employed for 10 years. I know what it is like, and I understand the challenges and pressures involved in that area. I grew up in a family where my mother ran small businesses for 35 years, and two of my brothers are currently in small businesses. So I do understand the concerns of small business, and I find it offensive that those on the other side, who think they are to the manor born, constantly run this line which is so inaccurate. The fact is that they just do not understand how to use public policy to grow the economy and to create jobs. When we were in government we faced the biggest downturn in the global economy since the Great Depression, yet we created almost one million jobs over a period of six years. Under this government, 40,000 Australians have joined the jobs queue and it is harder for young people to find work than it has been since the 1990s. Such is the frustration of the government at their lack of economic strategy being exposed that they are looking for scapegoats.

I have spoken in this place on various bills about how this government has tried to blame unemployed Australians. The government has suggested that job seekers are not serious about finding work, and all they need to do is to be punished a little harder. Now, with this bill, they have locked their sights on another old enemy—the Australian trade union movement. Everybody knows that the focus of this government is all wrong. We all know they should stop focusing on their internal leadership squabbles. They could at least talk to each other and get their lines right. Maybe they could show a little more tenderness. They should stop focusing on savage cuts and attacking the living standards of the most vulnerable and disadvantaged people in Australia. And they should stop fighting old ideological battles as they have been doing, and are continuing to do, with the reintroduction of this bill. Stop scapegoating. Get on with developing some serious solutions for the economy and stop wasting the Senate’s time, as you did earlier, with 20-minute tirades on how important it is to take commas out of legislation.