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Issue #1875      July 3, 2019

“Affront to democracy”*

In light of the push by the Morrison government to pursue unions – specifically the CFMMEU – we republish the following article from 2017. – Ed

The dishonestly named Ensuring Integrity Bill to amend the Fair Work (Registered Organisations) Act 2009 (FWA) is possibly the most vicious attack on trade union and workers’ rights ever put before Parliament. It is not an exaggeration to describe this bill as fascistic. Its aim is to put the trade union movement out of action by targeting its leadership, leaving workers defenceless and strengthen the hand of employers to accelerate the present roll-back of wages and conditions. It is both political and economic in its aims and objectives.

Trade unions are already up against a raft of anti-union laws where breaches can result in fines and damages of hundreds of thousands or even millions of dollars and industrial action is in effect illegal.

Their hands are tied as they attempt to fight wage theft and the attacks on their working conditions. In some instances employers are stripping wages by as much as 40 or 50 percent as they use the Fair Work Commission (FWC) to terminate enterprise agreements, send workers back to the Award, cut penalty rates and resort to casualisation.

Every dollar less in wages and every short-cut in safety is a dollar more in profits and a dollar less for workers to pay their bills.

The then Minister for Defence Industry, Christopher Pyne, declared war on the trade union movement in his Second Reading Speech: “The Royal Commission into Trade Union Governance and Corruption identified countless examples of officials breaching their duties, engaging in blackmail, extortion, coercion and secondary boycott conduct, abusing their rights of entry, acting in contempt of court or failing to stop their organisations from repeatedly breaking the law.” (16-08-2017)

Brushing aside the hype, the alleged “crimes” that Pyne listed amount to unions attempting to negotiate with employers, protecting their members’ wages and conditions, attempting to meet with their members, recruitment of new members and ensuring the safety of workplaces.

Unions in the building and construction sector, in particular, face a savage regime as they are constantly hounded by an all-powerful industry police force – the Australian Building and Construction Commission (ABCC).

The Ensuring Integrity Bill is far more draconian and dangerous for workers and their unions than the legislation governing the ABCC.

Then Employment Minister Senator Michaelia Cash claimed the bill was in response to “community concern” and the recommendations of the Heydon Royal Commission. The “community concern” is pure fiction. As for Heydon’s recommendations, the bill goes much further in attacking trade unions than Heydon dared to!

Disqualification from office

The bill empowers the Federal Court to disqualify a person from holding office in a trade union or part of the union for a period “it considers appropriate.” It could do so on any one of a number of specified grounds.

These grounds include civil or criminal findings against a person in relation to the Fair Work Act, the Registered Organisations Act, the ABCC legislation, Competition and Consumer Act (secondary boycott provisions outlawing pickets), OHS Acts and sections of the Criminal Code. These laws are referred to as “designated laws” in the bill.

Suggesting members take industrial action that is not “protected” action under the FWA would be a civil breach of the Act. Such action might, for example, be against an employer who is underpaying workers or not making superannuation and workers’ compensation payments.

It could be a walk-off by union members following a serious workplace accident, a fatality, or taking some form of action following the discovery of asbestos on site. (“Protected” action is limited to bargaining periods around a new enterprise agreement and following a lengthy process including a ballot.)

Outlawing union activity

Breaches, or alleged breaches of the Act might relate to a right of entry incident following the death of a worker on a site where the union official does not give the statutory notice.

These breaches of the Act are a result of the repressive legislation that outlaws legitimate trade union activity, not any wrongdoing by union officials or workers.

Disqualification can also occur as a result of contempt of court while performing functions in relation to the union or to wider criminal convictions. For example, if union members ignore a court order to cease industrial action, then the union official could be deemed responsible and disqualified from office.

Taking part in a picket to block deliveries, allegations that the union official shouted at a boss, and a host of legitimate actions deemed illegal could result in disqualification from office.

Then there is a catch-all, “not a fit and proper person” clause that can be used to disqualify a union official. This test includes situations where a right of entry permit has been revoked or suspended, when there are certain criminal or civil findings or regarding “any other matter the Court considers relevant.”

The onus of proof is reversed – it is on the union official to satisfy the Court that the order is not justified. Heydon in his report placed the onus of proof on the applicant seeking disqualification, not the union official.

It would be a criminal offence for a person when disqualified from office to act in any manner that would significantly influence the union or to continue to hold office. The penalty is $210,000 (100 penalty units) or two years imprisonment, or both. This is double the equivalent provision in the Corporations Act.

In the case of breaches of the law by the union, two findings of failure by a trade union officer to take reasonable steps to prevent such court findings being made can also result in disqualification from office.

While these provisions only apply to findings and conduct after the Act comes into force, “past behaviour” can be taken into consideration when deciding if the order is justified.

The Registered Organisations Commissioner, the ABCC, the Minister or a “person with sufficient interest” can make a disqualification application. This person could be an employer, a candidate defeated in union elections, etc. It provides for employer and government intervention in deciding who can hold office, running roughshod over members’ rights.

Deregistration

The Federal Court must cancel the registration of a union on any of the following grounds:

  • Corrupt conduct of officers
  • Two findings against the union for disqualification of officers
  • Multiple findings against a substantial number of members of the organisation or a part of its membership
  • Non-compliance with orders or injunctions or “obstructive” unprotected” industrial action.

The only exception is where the union can satisfy the Court that it would be unjust having regard to the “best interests” of members. Once again the onus of proof is reversed.

Administrator

Unions or their divisions or branches could be placed into administration or deregistered if “they have become dysfunctional or are no longer serving the interests of their members.”

The grounds are all-embracing. They include multiple contraventions of a range of laws.

This might occur when one or more officers have engaged in financial misconduct, the union is being conducted in a manner “contrary to the interests of the members or part thereof”.

By contrast, under the Corporations Act, a whole company is not placed in administration because one or several of its senior staff have ripped off the company or its clients. The scandal-ridden big banks where theft to the tune of millions of dollars has occurred have not been placed into administration but a union would be.

Registered Organisations Commissioner, the Minister, an employer, a member or a “person with sufficient interest” may apply to the Federal Court for the union to be deregistered or placed into administration.

Prevention of amalgamations

Drawing on the recommendations of the Heydon Commission, the FWC would be required to apply a new “public interest test” before approving an amalgamation.

At present the criteria for amalgamation are based on a democratic ballot of members, often carried out by the Australian Electoral Commission.

This takes into account such matters as the unions’ history of non-compliance with workplace laws including “unprotected” industrial action, breaches of court orders and breaches of right of entry provisions.

The Federal Court’s view of the Construction, Forestry, Mining and Energy Union’s (CFMEU’s)** history is not in doubt. Justice Flick, for example, imposed record fines of $2.4 million on the CFMEU and nine of its officials. In his decision he described the CFMEU as a “recidivist offender.” (See Guardian, “Editorial”, #1795, 20-09-2017)

“The CFMEU has long demonstrated by its conduct that it pays but little regard to compliance with the law and indeed has repeatedly sought to place itself above the law,” Flick said.

The FWC must also consider the likely impact on employers in the industry or industries concerned and any other matter it sees as relevant.

In addition, it would not be possible for an amalgamation to go ahead if any of the unions involved have any unresolved proceedings under “designated laws” referred to above. This goes much further than Heydon’s Royal Commission.

According to its website the ABCC has many cases which are not finalised, some dating back as far as 2014.

The government has not held back with its portrayal of trade unionists as thugs, criminals, corrupt and lawless. It was determined to prevent the amalgamation of the CFMEU, Maritime Union of Australia (MUA) and Textile, Clothing and Footwear Union of Australia (TCFUA) going ahead.

It failed to prevent the amalgamation. The cross-bench with the support of Labor blocked the bill in the Senate and the amalgamation took place on 27-03-2018.

Opposition to bill

The bill was referred to the Senate Committee on Education and Employment. Its Coalition members, as was to be expected, recommended the bill for adoption.

In a dissenting report, Labor members of the Committee recommended the bill not be adopted. They said in part:

“It is internationally recognised that free and independent unions are an essential part of a healthy democracy, and that governments and employers should not interfere in the internal operations of unions. This bill proposed by the government is politically driven and designed to interfere with and disrupt the democratic functioning of unions.

“It is Labor Senators’ firm view that union members should decide who their leaders are and what their unions looks like, not non-members and certainly not the government of the day or employers. This is a fundamental part of the democratic functioning of a union without which unions cannot represent their members.

“Furthermore, the bill erroneously assumes that unions are like corporations in nature, structure and purpose. This is far from the case, yet despite this fallacious assumption, the bill would impose a higher and harsher standard on unions than that which exists for corporations. As it is, unions are already more highly regulated than corporations or charities. ... Labor Senators reject this politically-driven attack on the democratic functioning of unions.”

The Australian Greens in their dissenting report noted that the “Parliamentary Joint Committee on Human Rights (PJCHR) and several submissions raised serious concerns about the bill’s incompatibility with International Labour Organisation (ILO) treaties. In particular, the PJCHR commented that a number of measures in the bill may be incompatible with the right to freedom of association, the right to just and favourable conditions at work, the right of unions to elect their own leadership freely and the right to strike.”

The Australian Greens expressed support for the ACTU’s submission which said that the measures in the bill “allow excessive political, corporate and regulatory interference in the democratic functioning and control of industrial organisations, with no true objective other than political gain.”

Labor pointed out that “The government’s determination to stamp out what they believe to be a ‘culture of lawlessness’ within unions can only be viewed as insincere whilst they turn a blind eye to wrongdoings in Australia’s banks and boardrooms. This nakedly political attack should be rejected.”

 

“Orwellian affront to democracy”

Then Prime Minister Malcolm Turnbull made it clear that the immediate target of the amalgamation provisions of the bill were the CFMEU and MUA, referring to them as having shown “a long-term disregard for the law; they’ve been essentially lawless.”

These provisions would also give the Fair Work Commission the power to prevent other mergers in the future.

By disqualifying militant union officials from holding office the legislation if passed, could be used to clean out the organisers and leaderships of unions who are fighting a massive employer offensive to smash workers’ wages and conditions.

Already, unions are extremely limited in what they can do legally. The Fair Work Act needs jettisoning and replacing by legislation that ensures workers’ rights, not employers’ rights. At the same time the so-called Ensuring Integrity bill must be buried and cremated.

Only authoritarian governments interfere with who can lead a union and how it can operate, despite the democratic wishes of the members. “This is an attack on our civil and democratic rights. We just need to remember Hitler first outlawed unions and carried on with the rest of the world,” CPA president Vinnie Molina told the Guardian.

ACTU secretary Sally McManus rightly described the bill as an “Orwellian affront to democracy”.

Change the rules!

The ACTU fought a national Change the Rules Campaign to defeat the government’s anti-union laws and to remove existing anti-union legislations such as the ABCC. The Guardian calls on all readers to support the campaign, so much is at stake.

With the changes in the composition of the Senate cross-bench since the 2019, the struggle to defeat this bill and have bad laws repealed becomes that much more difficult.

The new Industrial Relations Minister Christian Porter plans to rush the legislation through Parliament as a priority. That leaves very little time to lobby and convince the cross-benchers that it should be defeated and inform the wider community of its dangers.

* The above is an updated version of an article published in the Guardian on 04-10-2017, #1797.

** The CFMEU has since amalgamated with the Maritime Union of Australia to become the CFMMEU

Next article – Turkey – Down by law

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