- by Anna Pha
- The Guardian
- Issue #2071
Over the decades the rights of trade union delegates and trade union officials have been eroded, making it increasingly difficult for them to represent and organise their members, recruit new members, and carry out other basic trade union activities.
The Closing Loopholes Bill takes a number of steps towards restoring basic trade union rights that have been eroded over the past 30-40 years. But it falls far short of what is required.
DELEGATES’ RIGHTS
Modern awards (where varied in the future) and future enterprise agreements will be required to include a workplace delegates’ rights term. There is an expectation that modern awards and enterprise agreements provide greater detail for particular industries, occupations, or enterprises.
These rights include being able to communicate with members and potential members as well as representing members of their union, and have reasonable access to the workplace and workplace facilities. Delegates will have access to paid time, during normal working hours, for trade union training. Small businesses are exempt.
Employers must not refuse to deal with a delegate or unreasonably hinder, obstruct or prevent a delegate from exercising their rights as a trade union delegate. As to what constitutes “unreasonably” remains to be tested. Interestingly, the burden of proof that an action is not unreasonable is on the employer.
Nor must an employer knowingly or recklessly make a false or misleading representation to a delegate.
The provisions fail to include paid time to attend trade union meetings, a right that was removed from awards by the former Howard Coalition government.
RIGHT OF ENTRY
Entry permits have become weaponised, used to intimidate union officials attempting to carry out their responsibilities towards members. All too often they are suspended or revoked by the courts when organisers have exercised what should be basic trade union rights such as urging members to walk off the job when a worker has been killed or over safety issues.
The various breaches of the Fair Work Act (FWA) that can result in an entry permit being revoked or suspended are left intact. Financial penalties also remain an option for breaches of the FWA. The bill gives the FWC an additional option of imposing conditions on the permit holder if they abuse their rights – an additional punishment.
At present, for a union official to have a right of entry to a workplace they must have a valid permit and normally give an employer 24 hours’ notice. The bill makes provision for a union to apply to the Fair Work Commission (FWC) for an exemption certificate if the FWC reasonably believes that the advance notice of the entry might result in the destruction, concealment or alteration of relevant evidence.
The bill enables a union to also obtain an exemption certificate from the FWC when they reasonably suspect a member has been or is being underpaid. It does not apply where non-union members are involved. This is a weakness, in not only being able to check on payment of non-members but in a workplace with low trade union density it identifies who are members.
INDUSTRIAL MANSLAUGHTER
Industrial manslaughter will become a criminal offence under amendments to the Workplace Health and Safety (WHS) legislation with individual facing imprisonment for up to 25 years and companies fines of up to $18 million.
In the cases involving reckless or criminally negligent breaches of WHS duties, the maximum imprisonment will rise from five to 15 years.
There is a high bar to jump before industrial manslaughter can be proven in a court of law. This only applies to where someone responsible intentionally engages in conduct that breaches their health and safety duty, causes the death of an individual, and where they were reckless or negligent as to whether their conduct would cause that death.
SILICA
Silica is the new asbestos with an increase in silicosis and other silica-related diseases raising the need for urgent coordinated national action to reduce rates of disease and provide support to affected workers and their families.
The bill renames the Asbestos Safety and Eradication Agency as the Asbestos and Silica Safety and Eradication Agency and expands its functions to cover silica dust. The Agency will develop a Silica National Strategic Plan to coordinate and track the progress of addressing silica-related diseases and their elimination. It will support affected workers and their families.
Unfortunately, the bill does not ban work on engineered stone as called for by the trade union movement. Instead, it aims to eliminate silica-related diseases by preventing exposure to silica dust; and support workers and others affected by silica-related diseases. Nonetheless it is a positive step forward.
FIRST RESPONDERS
In another move that will benefit first responders such as firefighters, ambulance officers, and Australian Federal Police, provisions relating to post-traumatic stress disorder (PTSD) coverage under the Commonwealth Safety, Rehabilitation and Compensation Act will be amended.
The work of first responders who develop PTSD because of their job will be taken to have contributed to a significant degree to their PTSD. The onus of proof is reversed so that the contrary must be established to deny a claim.
OTHER PROVISIONS
The bill repeals provisions in the FWA that were introduced by the Coalition making it possible for the FWC to accept applications for a de-merger ballot to be made more than five years after the relevant amalgamation has occurred. It comes with certain time limitations.
The FWC will be able to hear independent contractors’ disputes about unfair contract terms while contractors’ few rights – those specified in a contract for work – are unchanged. They are responsible for their own workers’ compensation, insurance, superannuation, leave, and other provisions. The bill enables contractors below a high-income threshold to take disputes to the FWC instead of a court which would be less costly.
This will not be an easy task for those working for labour hire and other companies. Individually they have no power. It is difficult to organise independent contractors.
The bill extends the current extremely limited provisions for multi-enterprise agreements with a few minor changes. Franchisees of the same franchisor will be allowed to negotiate multi-enterprise agreements with the relevant trade unions. At the same time a franchisee will be able to exit such an agreement if approved by all the relevant unions.
A better off over all (BOOT) test applies in comparison with the agreement, not the relevant award.
The bill bans discrimination against employees on the basis they have been subjected to family or domestic violence.
During its almost ten years in office, the Coalition stacked the FWC with employer representatives against the long-held convention of equal numbers of appointments from labour and employer sides. This bill gives the FWC even more powers and because of its complexity and opaqueness, if passed, would likely see unions having to spend millions more dollars in the courts than they already do.
Labor had hoped to get the bill through Parliament this year, but it has been referred to a Senate Committee which is due to report on 1st February 2024. Independent David Pocock is seeking to have the bill broken up so that the less contentious parts can be passed quickly.
In the meantime, employer bodies and the right-wing media have launched an all-out dishonest scare campaign against the bill claiming it would bankrupt businesses, that union officials would be raiding employers’ homes, and that it would spell the death of tradies. The Minerals Council of Australia is leading the charge with wild allegations about a potential harm to the economy.
