ANALYSIS OF SUBMISSIONS TO SENATE EDUCATION AND EMPLOYMENT LEGISLATION COMMITTEE
Bill Name: Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019
Total Submissions as at [Date] : [#]
Submissions Closed:
29 August 2019
Committee Reporting Date: 25 October 2019
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SUBMISSION
KEY
ISSUES
RAISED
1
International Centre
Does not support
for Trade Union Rights
(ICTUR)
International obligations/freedom of association
The EI Bill is incompatible Australia’s ILO commitments and likely to produce arbitrary and disproportionately punitive
outcomes damaging to Australia's industrial relations system.
There are precedents in authoritarian states that curtail freedom of association by way of like-restrictions and often do little to
reduce instances of trade unions operating outside the law.
Designated findings/proportionality
The legislation conflates criminal fraud and other serious crimes with minor infractions of industrial laws. By distilling such a
broad spectrum of unlawful activity into the same category of offence, the legislation would permit equal punishments for
unlawful acts that are not of comparable gravity, and lead to unacceptably disproportionate outcomes.
The legislation blurs the liabilities of trade union officials and the organisations they represent and work for, and permits
sanctions against the entirety of a union's membership for the acts of individual officers, as well as sanctions against individual
officers for the acts of members or other officers not under their control.
Standing
Giving standing to the Minister or a person of sufficient interest could also allow the cancellation provision to be weaponised.
Sanctions against unions proposed in the legislation have the practical effects to threaten to destroy the careers of individuals
or the very existence of workers' organisations. These sanctions are more concerning because they can be initiated by anyone
with a sufficient interest.
Criminal law
Tightening regulations on unions' registrations and elections is not the appropriate response to criminal matters. Issues of
criminality should be dealt with in criminal law, the primary purpose of which is to reduce crime.
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ANALYSIS OF SUBMISSIONS TO SENATE EDUCATION AND EMPLOYMENT LEGISLATION COMMITTEE
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Regulatory and legal burden
The Bill invites a greater bureaucratic and juridical burden on industrial relations, without addressing the root causes of the
problems it is ostensibly meant to resolve.
The Bill shifts labour disputes into new areas of law, and trade union administration becomes an uncertain proxy for both
industrial policy and criminal law.
The Bill could have long-lasting repercussions for harmonious industrial relations in Australia.
Corporate comparison
While the public interest test under the EI Bill is mandatory, corporate mergers are merely subject to voluntary notification
under the Australian Competition and Consumer Act 2010 and their authorisation is based on detailed guidelines concerning
competition, with no consideration to record of compliance with the law.
Schedule 1 - Disqualification
The disqualification regime provides grounds for disqualification that are completely unrelated to serious crime, and where an
officer could be disqualified on grounds for which they bear no personal responsibility. These provisions have no comparisons
in any other modern liberal democracy, and find closer similarity with laws in Brazil created under Brazil’s historical Vargas
dictatorship.
Schedule 2 – Cancellation of registration
In cases of serious criminal matters and corruption, ICTUR recognises the legitimacy of deregistration provisions. However, the
scope of the Bill’s deregistration provisions are too broad, and cover less serious offences and technical non-compliance with
industrial laws.
The bill makes the ‘nuclear option’ of deregistration the default response, as the Federal Court
must cancel registration under
S28.
Schedule 3 - Administration
Minor technical failure to fulfil financial duties could lead to sweeping administrative powers over a union.
By conflating a range of grounds within the ambit of powers for an administrative takeover of unions, the Bill creates avenues
for the law to be abused in order to disrupt legitimate trade union activities.
Few other jurisdictions have similar legislation, with only other Anglophone jurisdictions such as the US or UK having laws that
allow for the appointment of a trustee to look after members’ interest, but which do not have the full power than an
administrator under the EI Bill would have.
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ANALYSIS OF SUBMISSIONS TO SENATE EDUCATION AND EMPLOYMENT LEGISLATION COMMITTEE
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Schedule 4 – Amalgamation
The public interest test risks subverting the democratic will of members to a wide variety of arbitrary obstacles created by
parties which claim an interest in the unions’ administration over and above the interests of members.
There are no comparative public interest test in other jurisdictions, and was informed by US colleagues that such a test would
likely be unconstitutional in the US.
2
Community and Public Does not support
Sector Union, SPSF
International obligations/freedom of association
Group
The EI Bill breaches freedom of association rights guaranteed by ILO conventions that Australia has ratified.
Designated findings/proportionality
Some of the grounds for liability under ‘designated finding’ are too low-level, such as late filing of financial or other records,
breaching a bargaining order, or failure to return a right of entry permit on expiry
Standing
Giving standing to individuals with ‘sufficient interest’ is too broad and unclear, and in breach of ILO conventions.
3
Victorian Government Does not support
International obligations/freedom of association
The Bill contravenes ILO Conventions including the right to freedom of association. The Bill also interferes with union
democracy and the right to self-determination.
The public interest limits the freedom of associations to amalgamate and the right to organise. The Victorian Governments
submits these limits are neither justifiable nor proportionate to achieve the legitimate objective of improving union
governance.
The Victorian Government endorses the finding of the Federal Parliamentary Joint Committee on Human Rights on the
provisions in the previous 2017 Bill, (which are broadly the same as the provisions in the current Bill with respect to the public
interest test) indicating that the measures are likely to be incompatible with the right to freedom of association.
Designated findings/proportionality
The grounds for disqualification based on ‘designated finding’ are too broad, and could include technical breaches such as late
lodgement of financial reports and other routine aspects of industrial law.
Standing
Allowing any person with sufficient interest to seek the cancellation of a union’s registration is problematic, particularly as
there is no equivalent ability to do so under the
Corporations Act 2001. This differential treatment is not explained or justified
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ANALYSIS OF SUBMISSIONS TO SENATE EDUCATION AND EMPLOYMENT LEGISLATION COMMITTEE
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and ‘sufficient interest’ is not adequately defined and potentially broad in its reach. A well-resourced employer or lobby group
may be able to weaponise this provision for union disruption, rather for genuine governance issues.
Schedule 1 - Disqualification
The proposed disqualification goes beyond the disqualification regime for company directors, who can only be disqualified for
dishonest offending, bankruptcy and in relation to foreign court orders. There is also no general ‘fit and proper person test’ for
company directors under the
Corporations Act 2001 (Cth).
Schedule 2 – Cancellation of registration
Concerned about the ‘obstructive industrial action by a substantial number of members’ ground for cancellation lacks clarity,
including how many members constitutes a ‘substantial number’.
4
Communist Party of
Does not support
Australia
General concerns
The Bill is aimed at the trade union movement by targeting its leadership and to strengthen the hand of employers.
Officials and unions could be taken to court for such acts as attempting to negotiate with employers; protecting their members’
wages and conditions; attempting to meet with their members or recruit new members; and ensuring the safety of workplaces.
International obligations/freedom of association
The Bill provides for sweeping powers to interfere in trade union organisations and undermines freedom of association.
The Bill is incompatible with Australia's commitments under the ILO Conventions 87 and 98.
Restricting who may stand for election in a union is comparable to the 1943 Vargas dictatorship in Brazil.
Designated findings/proportionality
The Bill does not distinguish between criminal fraud and minor infractions of industrial laws. Minor infractions against
industrial laws will encourage interference in union affairs. The gravity of an offence may be ignored and outcomes may be
disproportionate to any offence.
Standing
Giving standing to persons with an interest invites union-busting and anti-union activity.
Fit and proper person test
The ‘fit and proper person’ test is a catch-all. This includes situations where a right of entry permit has been revoked or
suspended, or there have been certain criminal or civil findings as well as for “any other matter the Court considers relevant.”
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ANALYSIS OF SUBMISSIONS TO SENATE EDUCATION AND EMPLOYMENT LEGISLATION COMMITTEE
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Legal concerns
The Bill permits sanctions against the entirety of a union's membership for the acts of individual officers, as well as sanctions
against individual officers for the acts of members or other officers not under their control.
Criminal law
Issues of criminality should be dealt with in criminal law, the primary purpose of which is to reduce crime. No special
protections exist for trade unionists against the application of the criminal law. The Bill will do nothing to improve the
functioning or efficacy of criminal laws.
Regulatory and legal burden
The Bill creates a greater bureaucratic burden on registered organisations.
Schedule 2 – Cancellation of registration
The cancellation of registration for an organisation punishes workers who have not been involved in any wrongdoing.
5
Community and Public Does not support
Sector Union, SPSF
Group, Victorian
Designated findings/proportionality
Branch
The trigger for some of the serious processes under this Bill including disqualification of an officer, placing the union into
administration, deregistration or the prevention of an amalgamation can be for relatively low-level breaches.
The consequences of breaches of civil penalty provisions are not proportional with the conduct. These disproportional
consequences are paired with the ability - unknown in the Corporations Law - for persons with little connection with the union
(as a person with a “sufficient interest”) to bring these proceedings.
Regulatory and legal burden
It is already difficult to encourage members to stand for election to honorary officer roles. Changes to governance and
compliance obligations in recent years along with the risk of civil and criminal prosecutions and fines is a strong disincentive.
The Bill will worsen this situation.
The Bill will take the compliance responsibilities of honorary Committee of Management members way beyond those of
company directors under the Corporations Law.
The Union faces a huge compliance obligation that is constantly changing and very technical in nature. It is therefore very easy
for the Union to miss a reporting deadline or to make some other minor technical breach that have the potential to breach a
civil penalty provision.
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ANALYSIS OF SUBMISSIONS TO SENATE EDUCATION AND EMPLOYMENT LEGISLATION COMMITTEE
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Corporate comparison
An honorary official of a Union Committee of Management is not comparable with the role of a Company Director. Company
directors are usually paid sitting fees to compensate for their responsibilities.
6
Human Rights Law
Does not support
Centre, The Australian
Conservation
International obligations/freedom of association
Foundation, The Public The proposed law will weaken and undermine the democratic operation of the trade union movement internally and drastically
Interest Advocacy
limit its ability to perform its function in a democratic society.
Centre and Community None of the industrialised democracies surveyed in the ICTUR/ACTU submission have laws that resemble the punitive regime
Legal Centres NSW
for deregistration of trade unions set out in the proposed laws. Nor do any of the other countries surveyed have an obvious
comparator when it comes to the broad powers to place unions into administration.
Justifying the merger rules on the grounds they will enhance relations in the workplace and reduce the adverse effects of
industrial action is incorrect. It cannot be assumed that industrial disputes necessarily have adverse effects given that the right
to take industrial action is protected as a matter of international law.
Designated findings/proportionality
The provisions are also disproportionate because the types of conduct that could result in a trade union official being
disqualified could include taking unprotected strike action or the mere late lodgement of financial report. A designated finding
may be a very minor or technical breach.
Union members may have democratically decided to take unprotected industrial action. Under the proposed law, if multiple
“designated findings” are made against the union or members, an application could be made to cancel the registration of the
union. The current law already regulates that activity.
Many of the grounds for cancellation could relate to less serious contraventions of industrial law or to taking unprotected
industrial action. This leaves the provisions susceptible to abuse.
A short delay in filing a financial report can be used by Registered Organisations Commissioner or the Minister as evidence of
“dysfunction” and grounds to impose an unelected administrator on a union. These matters are clearly not necessarily
indicative of a union ceasing to exist or function effectively.
Standing
The provisions go too far in granting the Minister and employers standing to bring disqualification proceedings. There is broad
scope for a “person with sufficient interest” to be interpreted to include an employer, lobby group, a rival in a leadership ballot,
or any person who can claim they have a “sufficient interest”. This could allow organisations with an anti-union agenda to
initiate either of these processes at any time and to massively disrupt unions.
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ANALYSIS OF SUBMISSIONS TO SENATE EDUCATION AND EMPLOYMENT LEGISLATION COMMITTEE
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The proposed law has the potential to impair the right to freedom of association by providing employer organisations or lobby
groups with an avenue to interfere in this process.
In relation to amalgamations, the Fair Work Commission may consider any objections from employer organisations and anyone
with a “sufficient interest in the amalgamation”. This leaves broad scope for abuse and could allow for matters of questionable
relevance to be raised in order to prevent or delay amalgamations.
Fit and proper person test
The fit and proper person test can see a person disqualified for technical breaches such as not giving the correct period of
notice when entering a workplace. Largely the fit and proper person test does not relate to the person’s role working as a
union official (findings and criminal offences such as driving offences).
Overly broad laws
The law establishes an overly adversarial and litigious framework for interactions between the Government and employers on
the one hand and the union movement on the other. Overly broad laws cannot be justified by an expectation that the courts
will enforce them appropriately, particularly when laws like these restrict the ambit of the court’s consideration.
Criminal law
If serious crime exists in the trade union movement, the appropriate response is for those people to be dealt with through the
existing criminal and industrial laws which already provide adequate protection.
Corporate comparison
There are no equivalent provisions or requirements for corporations seeking to merge. Corporate mergers are merely subject
to voluntary notification under the ACC Act and their authorisation is based on detailed guidelines concerning competition.
None of these considerations concern the record of compliance with the law of either the merging corporations or their
management.
There is a lack of corporate equivalency. The proposed law expands the grounds for disqualification of people working as
officials in trade unions to be much broader than for company directors. As well as conduct pertaining to their duties as a union
officer, a court can disqualify a union officer for conduct entirely unrelated to their union role. A union officer could twice be
caught driving while their licence is disqualified and be exposed to disqualification, while this would not have the same
consequences for a company director.
Schedule 1 - Disqualification
There is a threshold question whether the provisions are necessary, given that the current legislative regime is more than
sufficient and provides for disqualification for receipt of a range of criminal and civil penalties.
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ANALYSIS OF SUBMISSIONS TO SENATE EDUCATION AND EMPLOYMENT LEGISLATION COMMITTEE
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The current provisions are adequate.
The disqualification provisions will impede the right to strike. The right to strike is a fundamental right and this should be
respected whether the strike is protected or not. International bodies have already commented on how Australia’s laws
already go beyond permissible restrictions on industrial action. Where a union has engaged in two or more such
contraventions, the entire elected union leadership could be subject to disqualification.
The ability for the Court to supervise the disqualification process is not a sufficient safeguard. “Unjust” is not adequately
defined in the legislation.
Schedule 2 – Cancellation of registration
The provisions make the most punitive outcome – deregistration of the union – the default response, rather than a last resort
following the exhaustion of alternative options.
They allow for applications to be made to cancel the registration of a union in overly-broad circumstances - by a Minister or an
employer.
The loss of status as an organisation and a body corporate means that the union is relegated to the status of an association.
The practical implications of this are that neither it nor its members are entitled to the benefits of any modern award, order of
the Fair Work Commission or enterprise agreement that bound the organisation or its members.
Schedule 3 - Administration
Administration allows unelected administrators to gain control of a union, overriding the union’s own democratic processes
and denying the members their right to elect their own representatives.
The scheme may also require that an election be organised, making this process attractive to anyone who – for whatever
motive – might like to overturn the elected leadership of a union.
Schedule 4 – Amalgamation
The public interest test allows the Fair Work Commission to block the democratic mandate of union members on potentially
quite minor or technical grounds.
The provisions will significantly increase the burden on union branches seeking to merge, will mean that union members have
less input into the decision-making process and allow third parties (who are not members) an opportunity to intervene in the
process.
If the test had been applied to the MUA-TCFUA-CFMEU merger then the amalgamation may not have been successful given
business groups and the government would have been given standing to interfere in the process.
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National Tertiary
Does not support
Education Union,
General concerns
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ANALYSIS OF SUBMISSIONS TO SENATE EDUCATION AND EMPLOYMENT LEGISLATION COMMITTEE
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James Cook University It is rank and file union members, who are also officials of the union branch who could be affected by this Bill. Workplace
Branch
delegates in other Unions who can come under the definition of ‘officers’ in their rules would be in the same position.
The intention of this legislation is ‘union-busting’. It will undermine the democratic right of workers to combine in unions to
protect and further their workplace pay and conditions.
The Government inconsistently punishes unions while businesses who break the law are not punished in the same targeted
way.
This Bill’s new attack on the integrity and effectiveness of unions will further degrade the ability of workers to obtain
reasonable pay rises and conditions, especially through enterprise bargaining, and therefore continue the decline in
consumption which is causing concern for the economy.
International obligations/freedom of association
There is no comparable legislation internationally, this behaviour is more similar to countries which abuse human rights such as
Kazakhstan.
Designated findings/proportionality
The grounds for officer disqualification are broad and sometimes minor, but the consequences are severe.
Standing
The provisions would make it extremely difficult for a union to represent the interests of its members without the threat of
serious interference by any ‘interested party’ which could include employers, a Minister of a party unsympathetic to the labour
movement, or employer groups.
Regulatory and legal burden
Even if an application by an employer against a union or its official is frivolous or vexatious, it would involve the Union in
considerable expense to defend itself (or that official). Employers and government have more money to use to tie up unions in
legal proceedings.
Corporate comparison
There is no ability for a union to apply to have a company director disqualified, have businesses wound up, or legal recognition
withdrawn.
There is no legislation which stops businesses from amalgamating.
8
Australian Institute of
Do not support
Employment Rights
General concerns
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ANALYSIS OF SUBMISSIONS TO SENATE EDUCATION AND EMPLOYMENT LEGISLATION COMMITTEE
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The provisions of the EI Bill fail to protect or benefit members and instead propose a regime of targeted sanctions, in addition
to existing criminal and civil regimes, that will ultimately disadvantage and harm the membership of registered organisations.
International obligations/freedom of association
The amendments proposed by the EI Bill are in direct violation of Australia’s labour and human rights obligations under
international law. The right to freedom of association is essential to any democratic society; enabling a working population to
build power and voice to promote and protect their economic and social interests.
Designated findings/proportionality
The grounds proposed for disqualification of union officials and deregistration of unions are broad and include minor or
technical breaches of industrial legislation.
Under the current RO Act, persons convicted of a prescribed offence are automatically disqualified from holding elected office
in a registered organisation. This definition is expanded under the EI Bill.
The EI Bill expands the grounds for disqualification of registered organisation officials to include ‘designated findings’ under
proposed new s 9C of the RO Act.
This proposed definition of ‘designated findings’ 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 which do not justify disqualification from office.
The provisions of Schedule 2 are so broad as to constitute a ‘scatter-gun’ approach. Deregistration may be also be sought in
response to acts undertaken by an individual official of a registered organisation, in direct violation of freedom of association
principles.
The measures proposed in the new s323 (administration) go far beyond protecting members from maladministration and
represent an unjustifiable interference with trade union democracy. The conflation of available grounds in this provision, as
seen elsewhere in the EI Bill, and the variety of actors with standing to apply to the Federal Court invite potential for misuse of
a mechanism designed to address the dysfunctional operation of an organisation. The provision offers yet another avenue for
interference with the internal functioning of unions on the ground of non-compliance with other applicable laws.
Standing
Sanctions under the EI Bill may be sought by persons of ‘sufficient interest’ — an invitation to employers, employer
associations and industry lobby groups to hinder and attack trade unions.
The substantive unfairness of the proposed disqualification order provisions, they are procedurally unfair in that they give
standing to a wide range of parties to apply to the Federal Court for an order. The scope of relevant actors here goes well
beyond Recommendation 38 of the Heydon Royal Commission, which proposed that only ‘the registered organisations
regulator’ could apply to the Federal Court for a disqualification order.
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ANALYSIS OF SUBMISSIONS TO SENATE EDUCATION AND EMPLOYMENT LEGISLATION COMMITTEE
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The proposed new public interest test would enable a wide range of persons and organisations to intervene in matters in which
they may have only a remote — or no — real interest.
Fit and proper person test
The fit and proper provisions constitute a sweeping new regime for the disqualification of union office-holders, which imposes
unwarranted forms of double punishment in certain circumstances.
Corporate comparison
Corporate mergers under Australian law are subject to voluntary notification, and do not require consideration of the
compliance records of either merging firms or their managers.
Schedule 1 - Disqualification
These provisions unjustifiably interfere with freedom of association and the right of workers and employers to elect their
membership in full freedom.
The disqualification of union officials may be ordered on grounds not directly related to the conduct of the individual but rather
that of the organisation.
Where a union has engaged in multiple contraventions, the effect of the proposed legislation ‘could be that the entire elected
union leadership could be subject to disqualification’ regardless of whether members agreed to participate in such action or
believed it to be in their best interests.
The Bill proposes a new Division 4 in Part 4 of Chapter 7, RO Act, establishing several offences for disqualified persons including
to stand as a candidate, hold office or act to influence a registered organisation reflecting Recommendation 37 of the Heydon
Royal Commission. This recommendation was made to bolster the existing RO Act provisions for disqualification of union
officials as a result of serious criminal offences. The proposed expansion of the grounds on which disqualification from office
may be ordered (see above) renders the addition of the offences proposed in Recommendation 37 unnecessary and
inappropriate.
Schedule 2 – Cancellation of registration
The existing s 28 of the RO Act providing for deregistration applications to be made to the Federal Court has been described as
allowing the ‘excessive … punitive deregistration of trade unions’ unparalleled in comparable industrialised democracies. The
current laws are already in direct contravention of the internationally recognised principles of freedom of association.
There is no support for this significant change to existing law in the recommendations of the Heydon Royal Commission.
Commissioner Heydon recommended against deregistration of the union, either under special legislation or under the process
available under s 28 of the RO Act.
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ANALYSIS OF SUBMISSIONS TO SENATE EDUCATION AND EMPLOYMENT LEGISLATION COMMITTEE
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The Government’s major target for the proposed new deregistration provisions is the CFMMEU. There is absolutely no
legitimate basis for adding multiple new grounds of deregistration that could apply not only to the CFMMEU, but to
all
registered employee organisations.
Deregistration of a union is a very serious step with drastic consequences for the members of the deregistered organisation.
There is the prospect of deregistration being ordered following a minor or one-off breach of a relevant law by one part of the
organisation.
The current deregistration provisions in the RO Act form part of a compact — established at the commencement of the
conciliation and arbitration system in 1904 — under which trade unions accepted the advantages of registration under federal
law in exchange for a high level of external regulation of their internal affairs and activities. The proposed deregistration
provisions in the EI Bill further erode that balance and may lead some unions to question the value of continuing to remain
federally registered organisations.
Schedule 3 - Administration
Given the expanded grounds under proposed s323 the potential arises for a union to be placed into administration or subject
to court-ordered elections in a manner that breaches accepted principles of freedom of association.
Schedule 4 – Amalgamation
The provisions proposed in Schedule 4 of the EI Bill are a clear violation of the right of workers to determine their constitutions
and rules in full freedom.
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Queensland Law
Does not support
Society
Designated findings/proportionality
Concerned about the proposed grounds for disqualification, which are extremely broad. That is, the scope of grounds seems to
include seemingly minor infractions with more serious criminal conduct.
Standing
Concerned that the extension of the class of persons who can make an application to the Federal Court to cancel the
registration of an organisation to the Commissioner; and in this regard, the proposed change from a ’person interested’
(Section 28(1) of the Act) to ‘a person with a sufficient interest’.
Schedule 1 - Disqualification
There should be a conviction before the disqualification provisions can be invoked.
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The scope of behaviour captured by the proposed grounds for disqualification under the bill are wider than that recommended
by the Royal Commission report. They may also overlap with existing disqualification provisions under the Fair Work Act and
create uncertainty about the interaction between the relevant laws.
Schedule 2 – Cancellation of registration
Proposed section 28J of the bill shifts the onus of proof to the organisation
There are significant implications for an organisation in cancelling registration. Standing to make such applications should not
be changed and that the court’s discretion in these matters should remain as provided for in the Act.
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Australian Nursing and Does not support
Midwifery Federation
(Tasmanian Branch)
General concerns
The current regulatory scheme establishes high levels of reporting accountability, processes for conducting various activities
and sanctions for contraventions. These provisions do not need to be expanded upon in order to meet those expectations.
Passing this legislation without amendment will mean very limited (if any) industrial action can be taken by nurses and
midwives across the country even if they have concerns about inadequate patient care, their professional obligations or own
health and safety. This could lead to greater instances of clients receiving inadequate care due to business decisions made by
employers.
Members instituting safety bans on certain aspects of their work (refusing to perform high risk actions for example) can be
seen as disrupting the provision of a service being provided by the state and therefore provides grounds under the bill.
International obligations/freedom of association
The legislation will potentially violate the long-held principles of freedom of association and result in disproportionately
punitive outcomes that would be damaging to the Australian industrial relations system.
The Bill would alter the fundamental nature of a union, in that members (a collective coming together for the purposes of
bettering their working conditions) are rightly the people who should make decisions about who will, and will not, represent
them.
Places at risk the ability of Tasmanian ANMF’s members to attempt to sway an employer in their quest for better and fair
working conditions. In addition, members who are seeking better patient outcomes (which might result in costs for the
employer) may be caught by the proposed legislation.
Standing
Members can seek to remove individuals from office if they believe their interests are not being protected. This Bill proposed
to give the power to other parties outside the union.
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Division 2 (28) in its current form opens the door to any number of parties, i.e. employers, who have had minor disruptions to
their services, due to employees’ actions, to apply to have a union deregistered under Division 3 28 (g).
Concerned about the broad nature of the powers allocated to a person with a sufficient interest under this Bill. We anticipate
that essentially anyone could put claim to having a sufficient interest. This would potentially include a government who would
have the ability to make vexatious complaints to disable unions; including the ANMF. The bill has the potential to be used for
political and industrial purposes and could also be used by an employer to terminate Enterprise Agreement discussions.
It is concerning that a party with a sufficient interest in [avoiding industrial action] could be one of a number of parties
including, the health service as our members’ employer, the government as the funder of the system, any members of staff
who does not agree with the action being undertaken.
Corporate comparison
The Bill is compared to provisions applying to companies and company directors. The role of a union is very different to that of
a company. Applying principles such as fiduciary and other duties to elected office holders is problematic.
Schedule 2 – Cancellation of registration
Small scale industrial action such as wearing t-shirts or handing out flyers at Launceston Hospital could have been seen to be an
unprotected action. If this Bill is passed it will limit the ability of the ANMF to support its members in campaigns such as these.
Any one of the above actions could potentially be seen as being obstructive to the operations of the business.
Where nurses and midwives use their connection to ANMF to speak out in regard to issues that affect their clients, it is
concerning that if a group of members disagreed with the advocates choice to speak publicly and felt that it was not in their
best interests to do so. It could be found that the organisation was not been acting in the best interests of a group of members.
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Unions WA
Does not support
International obligations/freedom of association
The Bill is inconsistent with international human rights law.
Regulatory and legal burden
The Bill is inconsistent with Parliament’s stated intention in enacting the Registered Organisations Act, especially in respect of
organisational autonomy.
Corporate comparison
Registered Organisations are already highly regulated in ways that surpass the regulatory burden of existing corporation law in
many instances.
Registered Organisations under industrial legislation, are fundamentally different from trading or financial organisations.
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Union members have a democratic interest in the organisation of a union, rather than a financial or proprietary interest. The
imposition of a ‘corporate’ governance model on unions would not be value free:
because unions have a quasi-political function, changes imposed on unions could be seen as liable to hinder their broader role
within society.
Schedule 1 - Disqualification
No compelling evidence has been provided by the government for the expanded definition of ‘prescribed offence’. There is no
track record in Western Australia of problems with the existing laws regarding conduct of elected union officials.
The inclusion of offences under ‘a law … of another country’ is particularly problematic as it allows no discretion for a court to
assess whether there is an equivalent offence under Australian law or whether such an offence is punishable by an equivalent
penalty.
This section assumes that other countries have similar legal and political systems as Australia.
General
The Bill is politically motivated, bad for workers and is antidemocratic.
12
National Tertiary
Does not support
Education Union
(NTEU)
General concerns
The government claims the changes have the sole objective of protecting the interests of members and guaranteeing the
democratic functioning of organisations, they in effect do the opposite by allowing external parties to directly interfere in the
operation of democratically elected unions.
International obligations/freedom of association
The amalgamation provisions highlight the extent to which the government is prepared to allow itself and employers to directly
interfere in the right of freedom of association and the democratic wishes of union members.
Designated findings/proportionality
Expanding the grounds on which a union official can be disqualified, is likely to make it more difficult for a small highly
democratic union like the NTEU to fill all of its elected positions.
The bulk of their members are employees of Australian universities who have a right to make controversial public. NTEU are
concerned the expansion of grounds on which an individual might be disqualified as a union official might affect their exercise
of free intellectual inquiry.
The Bill allows a court to disqualify a union officer for conduct unrelated to their union role, such as being caught twice driving
while their licence is disqualified.
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Standing
Raises whether the Bill could unintentionally provide employers with an incentive to formally prosecute technical breaches of
the Fair Work Act as a pathway to disqualification of union officials that they consider difficult to deal with.
Corporate comparison
The provisions are harsher on unions and union officials than they are on corporations or their director.
The Bill allows the Minister or others with a ‘sufficient interest’, which
could include business lobby groups or employers, to seek a disqualification order against a union official. No such equivalent
provisions exist for corporations.
The Bill significantly expands the grounds for cancellation. Most of the grounds in the Bill have no ready equivalent to the
grounds for winding up a company in the Corporations Act.
There is no equivalent means by which the conduct of a company director can lead to the company being placed under
administration.
The anti-competitive provisions that apply to company mergers or take-overs are far narrower and concentrate solely on
market impacts. They do consider a company or its director’s legal compliance.
Schedule 1 – Disqualification
The narrative of the Government gives the impression there is currently no or little regulation of trade unions and other
registered organisations. The Registered Organisations Act already contains extensive provisions dealing with the
disqualification of officials and registration of unions. The current Bill simply seeks to expand these provisions including
allowing the Minister or person with sufficient interest to interfere with the internal working of unions.
Schedule 2 – Cancellation of registration
The threat of deregistration for non-compliance with reporting rules also presents as an important issue for a small highly
democratic union with a large number of elected positions and frequent movement of people in and out of elected positions.
Schedule 3 – Administration
The Registered Organisations Act already provides for the Court to make remedial orders to reconstitute a union or branch that
has ceased to exist or to function effectively.
Schedule 4 – Amalgamation
The new provisions remove the right of the members of existing
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organisations to determine whether an amalgamation or merger is in their best interests and allows a broad list of persons
including governments, lobby groups and businesses to argue against such a merger.
13
Unions NSW
Does not support
General concerns
The legislation is unnecessary; the Government has not justified the wide sweeping changes.
The Government has made cosmetic and minor changes to the 2017 bill and has presented it to the Parliament. The 2019 Bill
remains a significant threat to the operation of trade unions and hampers their ability to effectively represent their members.
International obligations/freedom of association
The ability for the court to appoint administrators to a union and set elections undermines the ability for unions to run as
democratic and independent organisations. The threshold for allowing administrators to take over the running of the union is
far too low.
Designated findings/proportionality
The threshold for an individual to have a designated finding made against them is low and does not accurately reflect the
severity in which it can be applied in the Bill. Provides examples of not returning a right of entry permit or an administrative
oversight at grounds.
If a substantial number of officials who are also members (the exact number required is not defined in the Bill) have a finding
made against them in relation to the late return of an expired permit, this could be considered grounds for the deregistration
of the union.
A finding against the organisation would also be considered a designated finding under the proposed Bill and could be used as
a ground to prevent an amalgamation from occurring.
Often in unions officer positions are filled by active and long-term members of the union who hold positions as part of the
democratic and representative nature of their union. These members may now be exposed to prison sentences for up to 2
years if they hold an honorary position after being disqualified.
The Bill proposes an expansion to also include minor administrative offences contained within the Fair Work Act and Registered
Organisations Act as grounds for deregistration.
A union may be de-registered as a result of the actions of a group of members, even if the union and its officials had made
attempts to stop members from committing a designated offence.
The Bill includes the ‘organising’ of industrial action as a ground for de-registration, even if the action is not carried out. All the
planning and organising for industrial action takes place before the action is considered ‘protected’ under the law. As such,
almost all industrial action could at some point be considered a ground for deregistration as a result of this Bill’s expanded
definition of ‘obstructive’ industrial action to include the organising of action.
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Only a class of members or group in the organisation need to have taken part in the organising or taking of the industrial action
for there to be grounds, which then has consequences for the entire organisation and membership.
Standing
A person of ‘significant interest’ is not defined by the legislation and could include an employer, employer representative,
corporate players in the broader industry or supply chain, political opponents and/or opposing candidates in a union election.
The Bill provides no safeguards against frivolous and/or vexatious applications.
Unions and union officials could find themselves tied up in expensive, time consuming litigation, used as a tool by opponents to
undermine union work.
The Bill does not provide limits on who an application can be made against. While the Court is able to consider whether an
individual should be disqualified from holding or standing for office, there is no requirement for that individual to currently
hold or even be intending to hold office.
Restricting the ability of union members to take protected industrial action will have a significant impact on the bargaining
power of the affected workers. An application for alternate orders can be made by any person with significant interest,
including employers. There are no safeguards within the Bill to prevent employers from using this legislation as another means
to undermine union collective action and power in negotiations around pay and conditions.
Fit and proper person test
A right of entry decision could be used maliciously as a tool to disqualify a union official from holding office. This may have the
unintended consequence of deterring union officials from applying for or renewing their right of entry, out of fear of the
broader ramifications of a negative decision.
Overly broad laws
The automatic disqualification grounds are too broad and are not adequately related to the operation of the union.
The Bill specifically defines part of an organisation to include branches of the organisation. Grounds for the disqualification of
officers, cancellation of registration and the placing of the organisation into administration, can all be based on the actions of a
part of the union. If a ground is established the Court can apply orders across the entire union, including separate branches.
State branches operate autonomously from each other and from the federal union, with separate elected leadership and
committees of management. For example, if a designated finding were to be made against a union or official from a branch in
NSW, this could provide an employer with the grounds to successfully make an application to intervene in the union affairs of
all state branches.
Legal concerns
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The protection against retrospectivity is undermined by the reference to right of entry as a ground for disqualification. The Bill
stipulates an officer having a right of entry refused, revoked or suspended is a ground for disqualification. Under these
amendments a refused, revoked or suspended right of entry could be used against an individual or union to trigger a
disqualification application.
When considering if a disqualification would be unjust the Court may consider ‘any other matters the Court considers relevant’.
A union official’s actions prior to the commencement of the Bill could be taken into account. This undermines the Bill as it
allows unions and union officials to be punished for actions they did not know the consequences of at the time they were
committed.
The Bill reverses the onus of proof. It requires a union official to stand before a court and justify their role within their union.
This is despite the fact they have been elected into the position by the union members they represent.
There is no restriction placed on the timing of other ‘relevant’ matters in relation to deregistration, meaning actions and the
Court can consider events prior to the commencement, effectively making the legislation retrospective
For deregistration, if grounds have been established against a union, it must stand before the Court and justify its very
existence. This shifts the burden of proof onto the organisation.
Schedule 1 – Disqualification
The Bill’s proposal for disqualification from holding office is already dealt with in Union Rules governed by the Fair Work
Commission and or the NSW Industrial Relations Commission. Union Rules ensure integrity and transparency by regulating the
behaviours of union officials, including the removal from office of officials in circumstances such as gross neglect of duty in the
conduct of office.
It is unclear how these new offences (holding office while disqualified) will interact with union structures that have dual
registration at the Federal and State level. If a union official is disqualified from holding office under this Bill, they may step
down from their position in the federal branch yet continue to be an official in the state registered union.
Schedule 2 – Cancellation of registration
Of particular concern is the proposed s 28C(1) which establishes a grounds for deregistration. It is impossible to simultaneously
meet the interests of members collectively and individually. The nature of unions requires them to balance the needs and
interests of individuals against those of the broader collective. As an example of how the amendment could be inappropriately
applied; a union member who joined the union a month ago may call the union requesting assistance with a workplace injury
claim which happened six months ago. The issue is highly technical and will require legal representation. The member wants
the union to assist. When considering what action the union takes it must make a decision based on what is the fairest use of
collective resources.
Restricting the rights of union members to take protected industrial action or the rights of unions officials to access union
members on site by exercising their right of entry is an excessive measure, particularly considering an order can be made
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against the entire union, including all its branches, even if the grounds have only been met because of the actions of one group
or class of members.
Schedule 3 – Administration
The grounds for dysfunction are highly dependent on the actions of individuals within unions. The ability to place a union into
administration because of the actions of an individual officer is extreme and unnecessary.
The grounds also capture minor administrative errors concerning the financial operation of the union. For example, if a union
was late in filing their financial reports to the ROC, this could be used as a ground to claim the union is dysfunctional. Human
error does not equate to dysfunction.
A ground for dysfunction that requires a union to dually operate in the interests of the collective and individual members runs
contrary to the nature of diverse, democratically run organisations like unions. The nature of unions requires them to balance
the needs and interests of individuals against those of the broader collective.
It is not clear what the legislation is trying to capture when it refers to officers who have ‘repeatedly failed to fulfil duties’. The
duties of a union officer are broad and open to interpretation. This ground could be open to abuse by disgruntled former
members and employers to make applications against unions and disrupt their work.
Failure to comply with this section of the Bill is a strict liability offence of 120 penalty units. The penalty for this offence has
more than doubled since the 2017 drafting of the Bill where the penalty was 50 penalty units. No explanation has been
provided for the significant increase in the penalty.
Schedule 4 – Amalgamation
The Bill’s amendments to the approval process of amalgamations are politically motivated. There is no similar requirement for
corporations to meet such a broadly interpreted ‘public interest test’, which extends to a record of legal compliance.
The events considered in a compliance record are incredibly broad and cover relatively minor administrative offences. Further,
the compliance record considers events which occurred before the commencement of the Act. The retrospective nature of the
Bill places an unfair burden on unions seeking to amalgamate. These unions are being punished for actions and events, they
were not aware of the consequences of at the time they were committed.
An amalgamation of a union or its internal structures should not be based on how whether it is in the interests of employers.
Considering the interests of employers when deliberating if a union can amalgamate restricts the free and democratic
operation of unions.
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Business Council of
Supports
Australia
General concerns
The Bills reflect unfinished business arising from recommendations of the Heydon Royal Commission as well as other
amendments necessary to strengthen the integrity of Australia’s workplace relations system.
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The integrity of the workplace relations system is integral to its ability to deliver shared benefits for employers and employees.
The Business Council supports the Bill as it will raise standards of conduct in the system.
International obligations/freedom of association
The Bill contains no restrictions on the ability of an organisation to conduct its own elections and act in accordance with its own
rules.
For over a century, registered organisations have been regulated by Commonwealth laws that have placed limits on their
operations. The registration of these organisations, their own internal rules and their continued existence are all already
subject to the oversight of the Fair Work Commission and Federal Court under the RO Act. The rules of registered organisations
must be approved by the Fair Work Commission. Organisations are not free to set their own rules as they please.
Standing
The Federal Court already has the power under the RO Act to de-register registered organisations for certain breaches of
workplace laws, and can do so on the application of any ‘interested person’. The Bill does nothing more than codify the existing
‘interested person’ test.
The Minister already has standing under the RO Act in relation to a range of matters dealing with registered organisations. The
most recent exercise of this power was in 2012 when the Federal Court appointed an administrator to the Health Services
Union on the grounds of its ongoing dysfunction.
The Bill does not hand power to any business or Minister to interfere in registered organisations. Only the Court has the power
to impose the various remedies, and only when very clear criteria have been met.
Corporate comparison
If company directors deliberately and repeatedly breach Corporations Law they can be banned by a court from being company
directors. If other professionals, such as doctors, nurses, psychologists, or lawyers, breach the laws that apply to them they can
be stripped of their right to practice their profession.
The Bill goes no further than aligning the rules governing registered organisations and their officials more closely with those
governing corporations and their directors. As such, it is a measured and incremental reform.
15
Registered
Supports
Organisations
Commission
General concerns
The ROC does not envisage its role as formulating a view as to what is necessary or conducive to promoting the objects and
purposes of the ROC. The main focus of the submission is to identify the duties conferred on it by Parliament and indicate how
the ROC might perform them if the Parliament was minded to confer additional functions on the ROC by enacting this Bill.
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Schedule 1 – Disqualification
The Commissioner takes and would continue to take a forensic, evidence-based approach to determining whether one or more
of the disqualification grounds existed.
The ROC is aware of an example of which the regulator became aware that a person who appeared to be disqualified from
holding office under section 215 of the RO Act had been nominated as a candidate for an upcoming election in a registered
organisation. The candidate withdrew their candidacy after the regulator warned them this would be unlawful under the
current RO act and threatened to take action.
An organisation or branch of an organisation may apply to the Commissioner under section 183 for an exemption to enable the
organisation or branch to conduct its own elections without the involvement of the Commissioner or the AEC. 23 organisations
currently do this. ROC says this makes it hard to monitor if disqualified persons are running for office. ROC is aware of one
example where the ROC revoked an exemption due to allegations of misconduct. The revocation was upheld on appeal.
Schedule 2 – Cancellation of registration
The Commissioner would, consistent with his approach elsewhere, take a forensic, evidence-based approach to determining
whether one or more of the cancellation grounds exist and have regard to matters in the ROC’s compliance policy.
Schedule 3 – Administration
As with schedules 1 and 2, the ROC would take a forensic, evidence-based approach to determining if circumstances existed for
making a declaration under s 323(3), and would have regard to the ROC’s compliance policy.
The ROC is aware of a range of examples in which the regulator has become aware of an organisation that was dysfunctional, in
circumstances where the regulator has had limited options available to seek to remedy the dysfunction. In one case, an
organisation was unable to conduct elections to fill offices for an extended period, which prevented it from resolving to pass
necessary rule changes to simplify future election processes. In another, an organisation wishing voluntarily to deregister was
unable to hold a special general meeting of members in order to resolve to apply for deregistration. In another, the rules of the
organisation provided for the existence of branches which had ceased to exist.
Schedule 4 – Amalgamation
While the term “public interest” has not been defined in the Bill, it is generally understood to refer to considerations which
affect the interests and wellbeing of the community and its citizens. It is a concept of broad meaning and is not limited by
precise boundaries.
The ROC recently provided advice and assistance to two organisations regarding one completed amalgamation and one
proposed amalgamation. The advice and assistance concerned whether the post-amalgamation rules and financial reporting
structures of the amalgamated organisations were consistent with the requirements of the RO Act.
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Australian Council of
Does not support
Social Service
General concerns
Concern is stagnating wage growth, underpayment and exploitation of employees in entry level jobs in sectors such as
hospitality, agriculture and retail where unionisation is low, and the increasing insecurity of employment in these sectors.
Over the past century, unions have played the key role in winning decent rates of pay, limitations on working hours, job
security, annual, sick and parenting leave, and other rights in the workplace.
Over the last two decades, a power imbalance has grown between employers and unions. This power imbalance has
undermined basic workplace entitlements, including the widespread underpayment of workers in hospitality, agriculture and
retail jobs. These problems cannot be resolved by legislation, or by regulators like the Fair Work Ombudsman, in the absence of
unions that can effectively represent those affected.
Affects the ability of unions to operate democratically - indeed, to operate at all.
They note the HLRC’s conclusion that:
‘’The explanatory materials accompanying the proposed law do not articulate compelling reasons why the existing laws are
inadequate and why new, broad provisions are necessary and proportionate. If serious crime exists in the trade union
movement, the appropriate response is for those people to be dealt with through the existing criminal and industrial laws
which already provide adequate protection.’’
International obligations/freedom of association
The proposed changes strike at the right to freedom of association
Standing
Cites the Human Rights Law Centre (HLRC) submission. “If the Bill is passed, it gives more people broader powers to interfere in
union leadership and remove officials from their position in a union in an extraordinarily wide range of circumstances and to
interfere in the functioning - and existence - of unions, by giving them a greater say in the decision to cancel a union’s
registration, place a union into administration and for unions to amalgamate with one another.”
17
Australian Industry
Supports
Group
General concerns
Ai Group supports the Bill and urges the Committee to recommend that the Bill be passed without delay.
The Final Report of the Royal Commission set out very persuasively why the provisions in the Bill have merit.
Ai Group is of the view that the amendments made to Schedule 2 in the 2017 Bill would not significantly detract from the
effectiveness of the Bill in achieving its purpose.
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Ai Group says organisations that do the right thing have nothing to fear. It then uses the CFMMEU as an example. The
CFMMEU’s repeated law breaking is ‘unacceptable’, and notes some examples of CFMMEU misconduct. Ai Group submits that
In a civilised society, no-one and no organisation can be allowed to act as though they are above the law. To allow the
CFMMEU to continue its law-breaking would seriously undermine the critical role of the Commonwealth Parliament. important
that Parliament acts to protect the integrity of Parliament and the Courts by passing the Bill.
Schedule 1 – Disqualification
These days many registered organisations have large financial and other resources, and it is essential that the officers are fit
and proper persons to hold office.
Persons who are convicted of serious criminal offences are not fit and proper persons to be officers of registered organisations,
and should be automatically disqualified. People who repeatedly break industrial laws are also not fit and proper.
Despite amendments that have removed provisions of the 2017 Bill from the 2019 Bill, Ai Group is of the view that Bill will still
be effective in achieve its purpose.
Schedule 2 – Cancellation of registration
Along with rights and privileges that they enjoy under industrial laws, comes the responsibility for registered organisations to
comply with the law. Where a registered organisation repeatedly breaches industrial laws, it is appropriate that the
organisation is exposed to the potential loss of the rights and privileges that it enjoys under the industrial laws. Otherwise
there is little incentive to comply with the laws, particularly if the registered organisation has sufficient revenue to readily pay
fines that are imposed by Courts for unlawful conduct
Giving the Federal Court the powers contained within Schedule 2 of the Bill, would give those unions that are currently
regularly breaking the law a strong incentive to stop their law-breaking
Each registered organisation is readily able to implement the necessary systems to ensure that the organisation, its officers and
staff comply with the law. Therefore, each registered organisation is able to readily remove the risk of having its registration
suspended or cancelled. All that is require is that the registered organisation comply with the law, as every Australian citizen
and organisation is rightly expected to do.
The Federal Court has considerable flexibility in determining what orders are appropriate in any particular case. For example,
the Court is able to make orders relating to particular divisions and branches of unions.
Schedule 3 – Administration
The Ai group considers the provisions of Schedule 3 to be fair and reasonable.
Schedule 4 – Amalgamation
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A registered organisation’s record of compliance with industrial laws, is a relevant factor that the FWC should be able to take
into account in assessing whether or not it would be in the public interest for the organisation to amalgamate with another
registered organisation.
The FWC and its predecessors have a great deal of experience in weighing up relevant considerations and determining where
the public interest lies. The FWC must consider the public interest in several other areas ( whether to grant to leave to appeal a
decision by a member, deciding whether an agreement passes the BOOT, before approving a greenfields agreement ect.)
18
Housing Industry
Supports
Association
Fit and proper person test
There is a clear need for additional measures targeted at the actions of officers of registered organisation who continually
engage in unsavoury behaviour.
Section 206E of the Corporations Act gives the Court the power to disqualify officers of companies where there have been
repeated contraventions of that Act.
In light of the special privileges and position registered organisations hold, it is appropriate that such similar standards be
applied to officers of registered organisations.
Schedule 2 – Cancellation of registration
The Bill proposes to allow the Federal Court to cancel the registration of an organisation 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 and
the taking of obstructive unprotected industrial action by a substantial number of members.
HIA acknowledges that such measures should not be taken lightly, but the building and construction industry has a long history
and culture of intimidation, and lawlessness. This has been well catalogued in the Cole Royal Commission (2003) and Heydon
Royal Commission (2015).
Schedule 4 – Amalgamations
HIA supports the Bill. The existing regulatory framework for union mergers is insufficient as it does not require considers of
whether the merger or amalgamation is in the public interest.
The introduction of a public interest test, which will allow relevant matters to be taken into account, such as the organisation’s
history of compliance with workplace laws, is another key element in stopping the spread of a culture of lawlessness identified
by the Heydon Royal Commission.
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Catholic Religious
Does not support
Australia
General concerns
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The members of CRA are deeply concerned that the Ensuring Integrity Bill will have a most destructive impact on the working
people of Australia. Unions provide one of the pillars of democracy.
From the perspective of social justice and the common good this Ensuring integrity Bill strikes at the very heart of the Union
movement – namely the ability of the workers to organise and run their own unions determining who leads them.
Standing
The Bill gives power to the Government, employers and other parties deemed to have ‘self interest’ to: apply to deregister a
union, disqualify a person from office, exclude certain members, impose an administrative structure.
Schedule 4 – Amalgamation
The ‘public interest test’ will be applied to mergers in a way no corporation would accept. This ‘test’ allows Government, lobby
groups and large corporations to seek to block a union merger, even if members agree. It takes into account a much wider
range of factors than the Corporations Act requires of businesses. This applies double standards to unions but not to
corporations.
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The Civil Air
Does not support
Operations Officers’
Association of
General concerns
Australia
Represents an unprecedented legislative encroachment upon the internal functioning of worker and employer organisations
and tramples a foundational human right to freely associate and assemble.
References the Minster’s second reading speech and raises that aligning all registered organisations with the CFMMEU is unfair
and irrational and is not an appropriate or balanced response. Employee organisations represent a vast array of workers across
Australia.
With the new regulations, the merits of remaining federally registered will be questioned by some registered organisations.
International obligations/freedom of association
Agree with the submissions of the International Centre for Trade Union Rights and the Australian Council of Trade Unions that
the Bill conflicts with international law and our nations commitments to uphold fundamental human rights, including the right
to freely associate.
The proposed amendments are out of step with workplace legislation in other western democratic countries, and the potential
damage to Australia’s global reputation will be serious.
Regulatory and legal burden
Concerned as a small union they are more at risk of being tripped up by the current rules and regulations as the regulatory
burden is disproportionately greater on an organisation with fewer resources to manage these requirements.
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Corporate comparison
The regulatory compliance and penalties already in the RO Act well exceeds what is applied to big businesses and seems
inappropriate for the not-for-profit sector and even more inappropriate for small scale operations.
Schedule 1 – Disqualification
The consequences of the EI Bill are also greater for a small union who rely heavily on volunteers operating in their own time
being disqualified from office and having the union “short staffed”, so to speak, on their Committee of Management.
The EI Bill expands the grounds for disqualification unnecessarily and well beyond the recommendations of the Heydon Royal
Commission.
The Federal Court already struggles under its caseload and applicants frequently face delays. If this legislation is implemented,
unions will face the prospect of defending claims regarding disqualification of officers in a jurisdiction that is already under
strain and is an expensive realm to operate within.
Schedule 4 – Amalgamation
Extends well beyond the recommendations of the Heydon Royal Commission and seeks to introduce a new ‘public interest’ test
for union amalgamations. A democratic process for amalgamation is already prescribed and regulated in the RO Act.
This proposed provision may see a smaller union refused amalgamation with a bigger, better resourced union that the
members have decided is in their best interests.
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Attorney-General's
Department
22
Finance Sector Union
Does not support
(FSU)
General concerns
The Bill is a yet another politically motivated piece of legislation designed to silence unions and their members.
TURC failed to uncover widespread corruption and wrongdoing within the union movement. The Government’s claim that the
TURC ‘uncovered numerous examples of some organisations and officials repeatedly flouting industrial and other laws’, and
that the amendments ‘will combat the lawlessness of some organisations’ is entirely misleading. Indeed, there were only a
small number of convictions arising out of the TURC.
This Bill is bad for workers, particularly so when wages are stagnant whilst productivity and profits soar.
Designated findings/proportionality
Concerned that official won’t be able to conduct their affairs freely without fear of being held liable for the actions of others or
interference in the running of the union.
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The Bill is unsound and highly punitive for conduct that may include less serious offences or technical breaches of industrial
law.
Some grounds for disqualification have no relationship at all to the criminal law. For example, even minor technical breaches of
industrial law such as failing to lodge records on time could lead to a finding being made against the person.
The Bill introduces grounds for disqualification in circumstances where a volunteer member may be disqualified from their
position for conduct that they have had little to do with. Again, this could be for minor technical breaches made by the union,
yet the member may be disqualified.
Standing
The Bill would also allow a disgruntled member or employer to apply to the Court for a declaration that a union is not
functioning effectively or officers of the union have acted in their own interests. If a declaration is made the Court could then
appoint an external administrator to manage the union or a branch of the union. Unions, like other democratic organisations,
have differing viewpoints about matters and it is not unusual for members to debate these issues, whilst still acting in the
interests of its members.
Regulatory and legal burden
This Bill seeks to impose even more stringent laws on unions that have no comparison in any other industrial relations system
in the developed world.
Corporate comparison
Under the Bill the Government or any person with ‘a sufficient interest’, which could be an employer, would be able to apply to
the Court to disqualify a person from holding office, including a volunteer member or members. No such law applies to
corporations under the
Corporations Act. If it did a person with ‘a sufficient interest’, such as a union could apply to the Court
for an order disqualifying the CEO of a corporation.
The proposed expansion of the grounds for disqualification of a union officer or volunteer member could be entirely unrelated
to their union activities and duties. There are no equivalent provisions for corporations. Directors of companies that engage in
wage theft or expose their workers to serious injury would not face an application for disqualification as a Director.
There are no equivalent provisions under the Corporations Act that allow a company to be wound up for conduct such as
putting workers lives at risk or repeatedly engaging in wage theft.
There are no provisions under the Corporations Act that allow a Minister or person with ‘a sufficient interest’ to apply to the
Court to have a company wound up.
The Bill introduces a ‘public interest’ test which considers the unions history of compliance and other matters said to be not in
the public interest. No comparable provisions exist under the Corporations Act.
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Schedule 1 – Disqualification
A person convicted of such a serious offence may not even be sentenced to any term of imprisonment, but they will still be
disqualified. The offence may be totally unrelated to their duties and obligations. For example, an official or volunteer member
may be convicted of a driving offence that carries a sentence of 5 years or more. That person would be automatically
disqualified from holding office even though the conduct had nothing to do with their duties.
Schedule 3 - Administration
The Court can make a decision about the ‘affairs’ of a union and can examine the internal management of the union, its
governance or its business model and how it is structured. This includes the Court looking at the decisions made at all levels of
decision making within a union, including in the case of the FSU’s structure, Local Executive which is made up of volunteer
members. The Court can examine all these things when considering whether to make an order.
23
Professor David Peetz
Does not support
General concerns
The Bill runs counter to the direction of the national policy framework, which has shifted from unions being a compulsory
institution integrated into state regulation of industrial relations, to one in which regulation is conducted independently of
unions and the latter are a wholly voluntary organisation.
International obligations/freedom of association
As the Bill imposes major restrictions on unions which appear to substantially undermine freedom of association, it can be
validly said that it runs counter to the direction of international policy, as shown through international conventions. It also runs
counter to the direction of policy in other countries, which has been towards greater freedom of association.
There do not appear to be any developed industrialised countries with the type of regulation of the internal affairs of unions
envisaged in the Bill, and those countries that do impose substantial new restrictions on unions tend to mainly be countries
which have experienced military coups, martial law or some other trauma to the democratic process.
24
Uniting Church in
Does not support
Australia, Synod of
Victoria and Tasmania International obligations/freedom of association
The provisions of the Bill are inconsistent with freedom of association.
Standing
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While it is appropriate for laws to require unions to act ethically and with integrity, the broad standing provisions combined
with the breadth of grounds in this Bill appears to create provisions where anti-union employers will be able to seek to harass
unions with applications for disqualification and deregistration.
Standing will also be available to less ethical members of the union movement to harass their political or industrial opponents
in the union movement.
Recommendation 38 recommended that the additional power to disqualify a person from holding any office in a registered
organisation for a period of time the court considers appropriate should be only upon the application of the registered
organisation regulator. There was no mention of extending the application to the Minister or “a person with sufficient
interest”.
Regulatory and legal burden
Disqualification orders will create a regime of litigious harassment of union officials by those employers that hold anti-union
views or those that wish to disrupt lawful union activities. Even where an application for disqualification is later dismissed as
being without merit or substance, the official who is the target of the application will need to spend time and resources
defending against the application.
Corporate comparison
There is no proposal to allow unions to object to the merger of businesses on ‘public interest' grounds, where such mergers
may reduce the influence of unions in a sector. Other members of the public whose "rights, interests, or legitimate
expectations would be effected" do not get to make submissions into business mergers.
Schedule 1 – Disqualification
Disqualification itself should only apply to serious matters that are related and relevant to the person's suitability to hold office
and not for other issues that are unrelated to their role as an official or as the result of minor infringements.
Schedule 2 – Cancellation of registration
Where an organisation has had its registration cancelled by the Federal Court the cancellation should not be undermined by
the re-registration of the organisation or the registration of an organisation that has the same, or substantially the same,
officers as those in the organisation that had its registration cancelled.
Schedule 4 – Amalgamation
The Synod believes it is highly inappropriate that a ‘public interest' test be applied to the proposed merger of unions. Such a
test is a curtailing of the freedom of employees to make decisions about their human right to form and join a union of their
choice, as stated in Article 23(4) of the UN Universal Declaration of Human Rights of 1948.
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Standing for the public interest test will allow employers the right to object to a merger between unions. We have worked for
many years on the issue of systematic exploitation of employees on farms in the horticultural sector. Many employers and
employer organisations in this industry have openly expressed hostility to trade unions in this sector. Employers are likely to
make arguments opposing the merger that conceal their actual anti-union bias.
The Minister or a Minister who has responsibility for workplace relations in a referring state to be able to make a submission to
an amalgamation, opening up the risk of politically motivated objections to a union merger.
The previous requirement of the Australian Industrial Relations Commission to take into account the ‘public interest’ under
subsection 103(2) of the Workplace Relations Act 1996, mentioned in the Explanatory Memorandum (p. xiv), did not create the
kind of process this Bill proposes.
25
Maurice Blackburn
Does not support
Lawyers
General concerns
It is obvious from these reports that wage stagnation and growing inequality impact those in precarious, low paying work more
than others. Those in precarious, low paying work that most need the protection and support of unions. This Bill puts that at
risk.
Designated findings/proportionality
The introduction of grounds akin to breaches of directors’ duties, are plainly unnecessary given the existing scheme of General
Duties introduced by the 2016 amendments to the RO Act. The obligations in respect of misuse of position or information,
extends beyond office holders and also covers employees of registered organisations.
Standing
As discussed earlier, the Bill gives anyone with a ‘sufficient interest’ to take steps which may affect the leadership of a union.
This might be an employer organisation, or an unhappy employer who may have not liked a union’s involvement on an EBA
negotiation, or even the Minister. This gives significant power to those who might seek to diminish the position of unions, in
the context of bargaining dynamics.
Corporate comparison
There is no equivalence between registered organisations and corporations. The main problem with the policy settings
underpinning the Bill is a failure to acknowledge that there are profound differences between organisations and corporations
in terms of their reason for organisational existence, decision-making processes and how they are resourced. Whereas
corporations have the primary purpose of carrying out commercial activities and advancing profits, unions exist to improve the
working conditions of their members.
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The Bill does not achieve equivalence in how unions and corporations are treated by law. It continues to impose more onerous
standards and requirements on registered organisations than it does on companies.
The effect of the Bill in purporting to further subject registered organisations to corporate-style regulation neglects the
purpose of corporate regulation which is to manage commercially driven entities on a scale that is unparalleled to those of
registered organisations.
The most recent amendments to the RO Act have already introduced provisions modelled on the regulation of corporations
and directors, and investigatory powers of ASIC under the Corporations Act.
If standing for disqualification orders were matched in the Corporations Act, they could potentially allow a union, or a union
official, as a ‘person with sufficient interest’, to apply for the disqualification of company directors or the winding up of
companies due to serious and systemic industrial wrongdoings such as breaches of workplace health and safety laws, liability in
relation to workplace injuries and deaths, and wage theft. No such provision currently applies to company directors, unlike
registered organisation office holders.
The Bill attempts to introduce a further prescribed offence, being an offence under a law of Australia or another country
punishable by at least 5 years’ imprisonment. Further, the Bill introduces grounds for disqualification including contempt in
relation to laws beyond the RO Act, as well as the ground of failing to meet the standard of ‘fit and proper’ to hold office. There
is no corporate equivalent for such grounds.
Schedule 1 – Disqualification
Given that the existing Act already provides a regime for automatic disqualification of office holders that is broader than that of
company directors under the Corporations Act, we consider that attempts by the Bill to further
expand the regime of automatic
disqualification are unnecessary.
Schedule 2 – Cancellation of registration
It is unnecessary for additional grounds to be added that attempt to further regulate deregistration, such as industrial action
and noncompliance with orders or injunctions.
26
NSW Business
General concerns
Chamber (NSWBC) and It is imperative that, given the special standing, rights and privileges that registered organisations, and their officers, have in
the Australian
society that the people who are given the honour of holding such offices are people of good standing and record.
Business Industrial
(ABI)
Criminal law
The Bill blurs the lines between the criminal and industrial sphere without having the desired deterrent effect. The higher
standard of proof of ‘beyond a reasonable doubt’ required to be met in a criminal case makes it harder to obtain a conviction
and will tie up significant resources in order to obtain a conviction. The preferred approach of ABI and NSWBC is to significantly
increase the fines and penalties that can be imposed against the individuals and the registered organisations themselves.
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If an officer of a registered organisation has committed criminal conduct punishable by the existing relevant State or Federal
criminal statute, then we support prosecution. However, we are of the view that a criminal penalty will have no additional
deterrent value and caution should be exercised before criminalising activity in the industrial relations sphere.
27
Chamber of Minerals
Supports
& Energy of Western
Australia (CME)
General concerns
Could go further to comprehensively address the ongoing potential for Registered Organisations to manipulate current
workplace regulation to expand their representational reach.
Strategic union alliances, for example, have the potential to create greater disruption in WA’s resource sector, including our
nationally significant offshore oil and gas projects, and negatively impact competitiveness and investment attractiveness.
28
Civil Contractors
Supports
Federation (CCF)
29
Australian Chamber of Supports
Commerce and
Industry (ACCI)
General concerns
Previous claims of any rush in these propositions, inadequate consultation or insufficient time for examination by this
Committee, cannot be sustained given that the previous legislation and the most recent iteration have effectively been before
the Senate for almost two years. The ACTU, Australian Chamber and others were given an opportunity to comment on the
legislation prior to its introduction through the COIL / National Workplace Relations Consultative Council, and the Royal
Commission recommendations the Bill seeks to implement have been publicly available for more than three and a half years.
The Bill will have no adverse effect on registered organisations which abide by the law
The submission has a strong emphasis on consistency with the Royal Commission recommendations.
The International Centre for Trade Union Rights (ICTUR) is not an independent international think tank, despite the ACTU
attempting to portray it as such in the media.
International obligations/freedom of association
The ILO’s Convention No. 87 does not exempt unions from laws on governance and accountability, proper conduct or running
capable organisations.
ILO’s Committee on Freedom of Association accepts the capacity for countries to apply proper standards of legal governance
and accountability to trade unions and employer bodies.
The ILO accepts the capacity for independent courts to be able to dissolve union or employer bodies in serious cases, subject to
a right for unions to be heard in court.
Standing
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Under the current Registered Organisations Act, the Registered Organisations Commissioner and the General Manager may
apply for a Federal Court order disqualifying a person from holding office. The Minister already has the power to intervene in
such proceedings.
A person with “sufficient interest” is a standard term used in legislation across the Commonwealth, including for example the
Competition and Consumer Act 2010, Copyright Act 1968, Judiciary Act 1903, and the current Registered Organisations Act,
which is the very legislation that would be amended by this item.
The case law in this area demonstrates the high bar and type of substantial interest that the court will consider to meet the test
of ‘sufficient interest’.
Ministerial standing is appropriate given that under the Registered Organisations Act the Minister has a role in protecting the
public interest and in ensuring that the regulatory system achieves its statutory objectives. As a model litigant any matter
which proceeds to litigation must be in the public interest to commence the proceedings and have reasonable prospects of
success.
In the matter of Brown v HSU, Justice Flick said it was unclear if the Minister would constitute a ‘person with sufficient interest’
to have standing to place branches of the HSU into administration.
Corporate comparison
The provisions in the Bill are adapted from existing workplace and corporate laws. In re-introducing the Bill this year, the
Government has adopted several amendments raised during the previous committee process which more closely align these
reforms with their corporate equivalents.
The
Competition and Consumer Act test for merging companies provides that the Australian Competition Tribunal may only
approve a merger that substantially lessens competition if it is in the public interest. This test is broad and allows the Tribunal
to consider any relevant matter, as it has previously done in legislation preceding the Fair Work Act.
Schedule 1 – Disqualification
The grounds and standing to bring applications for disqualification orders in schedule 1 are not “far too wide.” As the
Explanatory Memorandum makes clear, the new provisions in relation to disqualification are made in response to the
recommendations of the Royal Commission, the highest form of legal inquiry in our legal system, and are based on extensive
evidence. They are both necessary and proportionate, and have been recast in parts to respond to concerns identified
regarding the 2017 Bill.
This new disqualification regime will help better encourage the standards of behaviour by officers of registered organisations
that the members of those organisations, those impacted by their activities and the broader community should reasonably
expect. This is graduated, enabling the Court to suspend or condition rights prior to disqualification to further influence
appropriate standards of behaviour.
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Schedule 2 – Cancellation of registration
The grounds for cancellation of registration and alternative orders are not “far too wide”. The grounds for cancellation of
registration have been refined since the 2017 Bill, so it is unclear whether this claim is maintained in relation to the 2019 Bill. In
any case, employers do not aspire for the provisions in relation to cancellation of registration to be widely used, if ever.
Employers want to see all registered organisations and officials comply with the law.
Cancellation is not a step that can be taken lightly and employers do not aspire for these powers to be used. All registered
organisations should comply with the law. However, it is clear that effective measures are needed to drive improved conduct
and behaviour.
An organisation that enjoys the broad rights and privileges of industrial registration, cannot expect to engage in such conduct
and expect to retain this privileged position.
Schedule 3 – Administration
The grounds for administration as drafted in 2017 are not “far too wide”. The proposed grounds are sensible and well-
reasoned, with considerable checks, balances and protections built into this schedule. Further, the proposed new provisions
are also broadly consistent with and broadly reflect the existing administration provisions in New South Wales.
The provisions would address some the limitations of the current framework, which as the case of Brown v HSU has
demonstrated, are extremely difficult to administer. This case was ultimately resolved because the parties largely agreed the
facts in issue (after the leadership of the HSU changed).
Schedule 4 – Amalgamation
Introducing the public interest test (as has existed in previous legislation governing registered organisations) would
appropriately balance the freedom of registered organisations to operate without unnecessary interference with consideration
of the legitimate interests of the Australian public.
Consideration of the ‘public interest’ in industrial relations or governance of corporations is not a novel concept and should not
be considered to be controversial. Consideration of the public interest has long played a role in Australian workplace relations.
30
Australian Salaried
Does not support
Medical Officers’
Federation, Tasmanian General concerns
Branch
This bill will divert further resources away from valuable activities such as providing a conduit between workers and their
employer to help improve working conditions and safety for doctors, and advance our public health system
Designated findings/proportionality
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The implication of this bill is that any breach, however small and unintentional, of the legislation could result in the Federal
Minister suspending the local branch and putting it into the administration of another body, thus disempowering the local
entity and removing local representation.
The bill could also lead to the disqualification of union officials working for the entity if they fail to stop their organisation from
breaking the law.
Standing
The fact that third parties with ‘a public interest’ can make an application to deregister a union body under this bill, opens
unions up to outside political attack to cause union resources to be diverted from one area to that of defence in another,
whether the deregistration is successful or not.
Regulatory and legal burden
The current Act imposes certain obligations on our branch in relation to the records that must be kept on membership and
officers, the keeping of financial records and accounting and auditing. The current regulatory regime of standards and reporting
is already particularly onerous for a small organisation such as ASMOF Tasmania, which has very limited resources to put
towards compliance obligations.
This bill with its increased compliance and heavy handed approach may make it harder to encourage members to volunteer on
the Board. We are already finding it difficult to fill Executive positions due to the requirements of the AEC election process and
mandatory training associated with the role.
31
Mr Danny McCormick
Does not support
Disability support worker who has been employed in both the government and private sector for over 25 years.
General concerns
There is already an inherent power imbalance in the Australian industrial landscape and it is largely the result of regulation that
places corporate interests above those of ordinary workers.
Designated findings/proportionality
If a company CEO is found guilty of criminal conduct, do we dismantle the company? If a church leader is found guilty of a
crime, do we order the church be disbanded?
Criminal law
Criminal law is supposed to treat us equally, yet unions are again to be singled out for prejudicial treatment.
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Corporate comparison
Unions are already held to far higher levels of scrutiny than comparable institutions.
Churches and community organisations are free to wield their influence without disproportionate levels of government
involvement.
Schedule 4 – Amalgamation
Would we feel so comfortable in seeking to restrict interdenominational mergers?
32
Ms Elaine Chevalier-
Does not support
Carter
Retired community sector worker.
Corporate comparison
The Government and Federal Court do not prosecute against company CEOs or others within a company unless such people
have been charged with an actual criminal offence. To rid the company from apparently corrupt holders of such office, (unless
charged with a criminal offence) is left up to the Board and shareholders of said company.
It should be left to Union Boards and members to decide on the same grounds that such decisions are made within companies
and Governments and/or Parliaments.
The rules of this Bill should apply to Unions should also apply to all organisations, including Businesses and Politicians.
The designated findings in the bill are specific to unions only, whereas this conduct would be acceptable in other organisations.
33
Master Builders
Supports
Australia
General concerns
Submits the passage of the Bill will bring marked improvements to the standard of industrial conduct displayed by registered
organisations within the building and construction industry and that this will be of significant positive benefit to workers,
business and the industry as a whole.
International obligations/freedom of association
It has been alleged that Schedule 1 impinges on the rights of union members to decide who represents them or prevent those
members being able to elect representatives to Official roles. This is incorrect.
Schedule 1 – Disqualification
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Implements a Heydon recommendation in a way that addresses constitutional questions with appropriate independent
oversight;
Would assist in changing a culture of disregard for the law by officers of employee ROs in an industry which is renowned for
being a hotspot of such culture;
Would better protect the public and members of ROs; and
Would create an additional scheme of deterrent for those seeking to break the law.
Schedule 2 – Cancellation of registration
That a further incentive is created for ROs and their officials to comply with the law;
It would provide greater protections for members of an RO, and ensure (where relevant)
that any consequence for breaking the law is targeted at the part of an RO so involved; and
It would improve the standard of industrial conduct while protecting RO members and the public more generally.
Schedule 3 – Administration
Master Builders supports this as it improves the Act by addressing gaps identified with the move to place HSU East Branch of
the Health Services Union (HSU) and the NSW registered HSUeast into administration.
This matter did identify the absence of clarity within existing provisions and demonstrated the cost and complexity.
Where financial resources are likely to be limited, the interests of those members of an RO in administration are not served if
forced to expend additional resources on legal proceedings that could otherwise have been avoided.
Neither are members’ industrial interests best met if there is uncertainty to the status of their organisation or a delay in the
identification of those responsible.
Such an outcome is not only desirable as a standalone policy proposition, it is also entirely consistent with the objects of the
Act.
Schedule 4 – Amalgamation
Master Builders submits that the provisions of the existing Act are deficient
Existing provisions operate to restrict interested parties from making submissions and this prevents the Commission from being
aware of all relevant circumstances, material and context that should otherwise be available.
Schedule 4 will address this deficiency and ensure that the Commission is better able to inform itself ensuring more
comprehensive regard is had to all impacts of an amalgamation order sought.
The requirement for the FWC to have regard to the prior conduct of ROs before amalgamation is also welcome.
Any amalgamation must be in the public interest and not merely contrary to it.
34
Ms Heather Smith
Does not support
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Union organiser formerly with Health and Community Services Union Tasmania Branch
The bill is totally unjustified. Penalties already exist, and are used, to deal with infractions by unions.
It should be the priority for government to support industrial organisations, rather than bring in laws that would mean unions
could spend half their time in court defending themselves against poorly defined threats to their basic democratic freedoms.
35
Professor Anthony
Does not support
Forsyth
General concerns
The assumption that registered employee organisations (unions, the main focus of the Bill) and companies should be subject to
the same forms of regulation is flawed.
In any case, the Government’s application of the corporate model to the regulation of unions, through the provisions of the
Bill, is highly selective
Corporate comparison
Companies are mainly vehicles for carrying on commercial activity, with a view to generating revenue and profit and obtaining
limited liability. Trade unions e primarily formed in order to improve the working conditions of their members (and workers
generally), not to accumulate profit for distribution to their members. The principle of limited liability does not apply to a union
or its members.
Shareholders primarily have a proprietary interest or ownership interest in a company. Union members however, have a
democratic interest: ensuring that the union fulfils its obligation to improve the position of members, through industrial
representation, collective bargaining and (increasingly) the provision of services.
Unions traditionally accepted regulation in return for rights and privileges from the state. However in recent years the balance
of this compact has turned against unions: while the level of regulation has constantly increased, the benefits of participating in
the formal system of industrial relations have dwindled (e.g. registered unions are just one of many possible employee
bargaining representatives under the Fair Work Act 2009 (Cth) (FW Act)) which also include unregistered unions.
The significant differences between the two types of organisations mean that there is no basis for the automatic application of
the corporate model of regulation to unions. Corporate model should be a starting point.
Schedule 1 – Disqualification
Automatic disqualification would apply in a wider range of circumstances under the Bill than in the Corporate Sphere.
o Under the Corporations Act, directors are automatically disqualified mainly in respect of convictions for offences
relating to decisions affecting the company; or Corporations Act offences punishable by more than 12 months’
imprisonment (or at least 3 months’ imprisonment for dishonesty-related offences). The EI Bill would disqualify anyone
convicted of an offence of 5 years imprisonment or more.
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The discretionary disqualification regime also goes beyond corporate equivalents.
o Grounds for disqualification under the corps act relate mostly to contraventions by directors of civil penalty provisions
of the Corporations Act itself. The RO Act currently is already aligned in this respect, allowing court-ordered
disqualification for breaches of its own civil penalty provisions.
There is no Corporations Act equivalent to the proposed fit and proper person test for union officials.
o The Victorian Labour hire scheme which prof. Forsyth recommended had a fit and proper person test. However the EI
fit and proper test has no rationale.
o Corrupt officials have already been the subject of regulation. If the Gov wishes to maintain consistency with corporate
legislation, then there should be equivalent provisions in the Corporations Act (e.g. George Calombaris should be able
to be disqualified as a company director for FW Act breaches.)
Standing for Minister and person of sufficient interest is too broad. an employer organisation could seek to have a union official
disqualified for involvement in the taking of unlawful industrial action, but a union could not apply to have Mr Calombaris
removed as a director for his involvement in systemic underpayments of worker
Schedule 2 – Cancellation of registration
Same concerns for standing as with schedule 1
Deregistration has long been considered a last resort measure.
Some of the provisions for deregistration aim to match Corporations Act equivalents. However, the addition in the Bill of
grounds for deregistration relating to a union’s (or members’) non-compliance with a wide range of laws (e.g. FW Act, health
and safety legislation) has no equivalent in the Corporations Act.
37
Queensland Council of Does not support
Unions
International obligations/freedom of association
Contravenes Australia’s international obligations and historical precedent can only be found in a previous, right-wing
dictatorship in Brazil.
The Bill is against one union.
The Bill has potential to deny workers the fundamental human right to organise.
Designated findings/proportionality
The Bill conflates minor breaches of industrial legislation with serious criminal offences.
The designated laws include industrial relations and WHS laws that are very prescriptive with respect to the requirements
placed on unions and union officials.
The late filing of documents required by the ROC could give rise to the disproportionate penalties.
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The Bill conflates the conduct of an individual with an entire organisation or its membership.
Standing
Parties to industrial disputes could use the provisions proposed by the Bill as weapons. By opening up the list of potential
applicants for sanctions the Bill would create legal uncertainty, litigation and industrial strife.
Corporate comparison
There is little equivalence between what is proposed and the regulation of the corporate sector.
Schedule 2 – Cancellation of registration
A concerning aspect of the Bill are the alternative orders that are available if the Federal Court considers cancellation to be
harsh.
The alternative orders provide a backdoor way in which litigants can cause grief for organisations, individuals and groups of
workers.
Schedule 3 – Administration
The Ensuring Integrity Bill includes an expansion of provisions to install an administrator for ‘dysfunctional’ organisations. The
Bill expands the definition of ‘dysfunctional’ beyond what its proper purpose. It is extreme to place unions under
administration for minor infractions and the failure to fulfil officers’ duties.
Schedule 4 – Amalgamation
The public interest test would consider the record of compliance with industrial and WHS laws. Questions that these types of
issues would be considered relevant to whether organisations are permitted by law to amalgamate.
The Bill includes the impact of the amalgamation on employers as part of the public interest test. The impact of an
amalgamation on an employer has little to do with any normal definition of public interest and is not relevant to an
amalgamation.
38
Health Services Union
Does not support
General concerns
The Bill is an attack on the social fabric of our country.
International obligations/freedom of association
The Bill will allow for undue interference in the democratic operation of unions and poses a serious threat to the rights of
workers, including the freedom of association, right to collective bargaining, and choice of representation.
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Standing
The Bill introduces a protracted amalgamation process, designed to provide various third party interests the opportunity to
interfere in and delay an amalgamation process.
The Bill positions employer interests as of equal importance to the interests of union members in the FWC’s consideration of
whether a union amalgamation ought to proceed.
Schedule 3 – Administration
The existing administration regime already gives the court significant
powers, discretion and flexibility in dealing with most of the officer conduct contemplated by expanded grounds.
By contrast, the Bill focusses on misconduct and wrongdoing, and radically changes the nature of the provisions from remedial
to punitive.
The Bill does not require an administrator to have any particular
qualifications or any experience with registered organisations.
In cases involving federal and state unions or branches, the proposed provisions will be of limited use unless orders can be
made in relation to both.
39
Community and Public Does not support
Sector Union
General concerns
The Bill would reduce the effectiveness of CPSU to work for members’ interests, by unfairly and unnecessarily tying up the
resources of the union. The Bill could also allow improper intrusions into the structure and operations of the CPSU that would
undermine the democratic, member-led nature of the union (p. 1).
The Bill would reduce the effectiveness of the union to work for members’ interests by unfairly and unnecessarily typing up
the resources of the union (p. 1).
The legislation also risks being abused by Government or employers to threaten court action in an attempt to dissuade unions
from exercising their rights under legislation where these rights are disputed (p. 4).
This Bill would make it harder for unions to do their job, which would impact negatively on all working people (p. 6).
International obligations/freedom of association
The Bill is undemocratic. The CPSU supports a legislative regime that promotes the autonomous operation of accountable,
democratic and effective trade unions that are member-governed. This is also a requirement of international law (p. 4).
CPSU notes that the Parliamentary Joint Committee on Human Rights found that every Schedule of the Bill is incompatible
with the right to freedom of association (p. 5).
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The Bill could also allow improper intrusions into the structure and operations of our union that would undermine the
democratic, member-led nature of the union (p. 1).
The role of unions also has special recognition in international law in a much different way to companies (p. 2)
Standing
The CPSU has specific concerns about this Bill given the proposed expanded and intrusive powers for the Minister to intervene
in the internal affairs of unions, given that the Minister is the decision-maker both as an employer for our members in
Commonwealth Government and as a regulator (p. 1).
There is an unacceptable risk that the Bill would give the Minister the ability to use these broad powers as leverage against the
Government’s own workforce or against the CPSU as the advocate for federal government employees (p. 3).
Similarly, in relation to CPSU’s workforce in the private sector, the Bill broadens the standing of other ‘interested parties’ to
take action against unions. The Bill does not contain safeguards to ensure that these powers are not abused or used for
political or other ideological motivations (p. 3).
Legal concerns
The Bill proposes to introduce a number of measures which could allow political or corporate interference into the internal
affairs of unions, including Intrusive ‘alternative orders’ that may be made by a court (p. 5).
Regulatory and legal burden
Unions are already subject to extensive laws relating to accounting, reporting and disclosure and a higher regulatory burden
than applies to corporations in many areas (p. 2).
Corporate comparison
To the extent that the Government seeks to justify this Bill as aligning the regulation of registered organisations with the
standards that apply to companies and their directors, this is not a relevant comparison (p. 2).
A union is more comparable to an incorporated association given that the majority of office holders in a union are volunteers.
It is easy to forget looking at the Government’s information on these Bills that unions are not-for-profit, member-based
associations, often with far more limited resources than the employers they deal with. The changes proposed in the Bill will
act as a deterrent for member participation in union governance (p. 2).
The Bill imposes harsher penalties and stricter requirements than equivalent regulations for corporations (p. 2).
Schedule 1 – Disqualification
The proposed new s 222(1) provides that an application for a disqualifying order can be brought by the Commissioner, the
Minister or a ‘person with sufficient interest’. The latter could conceivably include an employer, employer organisation, or
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even a business within the supply chain that is not in the relevant industry. There are no limitations to standing or the bringing
of an application that could operate as safeguards against frivolous or vexatious claims. Persons holding office in unions could
therefore be subject to significant burdensome litigation, which is a disincentive for members to participate in an
organisation’s democratic processes and stand for office (p. 3).
The grounds for bringing an action for disqualification of an official are so broad that they include minor and even inadvertent
breaches of legislation such as filing financial records late or putting the wrong address on an entry notice. Although
disqualification requires that the court ‘does not consider that it would be unjust to disqualify the person’ this essentially puts
a reverse onus on an official so show that their disqualification would be unjust (p. 3).
Schedule 2 – Cancellation of registration
Of particular concern is the ability of the Commissioner, Minister or person with sufficient interest to bring an application for
deregistration on the grounds that affairs of the union have been conducted in a manner that is contrary to the interests of
members of part of the organisation. This ignores the industrial reality in which unions elected representatives often have to
make choices between options that would favour different parts of its own membership (p. 3).
Schedule 3 – Administration
The Bill proposes to introduce a number of measures which could allow political or corporate interference into the internal
affairs of unions, including the imposition of an administration scheme on an organisation by a court on application by
Minister, Commissioner or any other person with sufficient interest (p. 5).
Schedule 4 – Amalgamation
The Bill proposes to introduce a number of measures which could allow political or corporate interference into the internal
affairs of unions, including a public interest test for mergers which have been decided on by members (p. 5).
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Nurses’ Professional
Does not support
Association of
Queensland and the
General concerns
Fair Work Employment
Given the Bill’s serious sanctions for organisations, currently registered organisations would be motivated to either join or
Lawyers
create unincorporated or incorporated associations that are out of reach of its operation (p. 1).
The Bill opens up unintended consequences including potentially making agreement making more complex for employers if
‘dysfunctional’ registered organisations or their officials form incorporated or unincorporated trade unions (p. 1).
The NPAQ recommends that, the FW (RO) Act could be amended to support a member better being able to raise an actual or
perceived democratic failures to facilitate an extraordinary general meeting (p. 2).
NPAQ is concerned that the proposed new laws will not change unsavoury union official behaviour and the current status quo
would be maintained (p. 5).
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There is a clear path where those that wish to avoid the reach of the Bill can simply operate outside the National System (p.
10).
We have a scenario where anointed legacy trade unions are being granted privileges (eg/ right of standing to bring causes of
action in their own right under the FW Act, the right of entry, and the default bargaining agent in enterprises for where they
have coverage) as part of registration and then in rare cases, exploiting them. Having regard for the ACCC’s position on
competition, the NPAQ urges the Committee to open up the competitive field by enabling all trade unions, not just registered
ones to access the privileges limited to the few (p. 12)
International obligations/freedom of association
The Bill’s focus on the organisational operation of Registered Organisations has Human Rights Implications that potentially
significantly impede Article 22 and other Conventions (p. 1).
The Bill’s focus goes beyond the permissible limitations on ICCPR rights (p. 1).
From a human rights perspective the aims of The Bill are being incorrectly sought by attempting to create systemic change to
the ILO framework to sanction organisational conduct, not targeting individuals holding particular office, as well as the
individuals involved in electing such representatives (p. 9).
Designated findings/proportionality
The NPAQ recommends that, in the event a registered trade union’s senior officials or executive are the subject of Designated
Findings, that currently triggers deregistration, that this be limited to a temporary period only, as reasonably necessary, to
appoint a temporary administrator to facilitate an Extraordinary General Meeting that allows for democratic elections of
members to appoint newly elected officials (p. 2).
Standing
The NPAQ recommends that, to ensure integrity, all trade unions have the right of standing to causes of action under the FWA
(p. 2).
Legal concerns
The NPAQ recommends that, to ensure integrity, all trade unions and officials have the right to apply for right of entry permits
(p. 2).
The NPAQ recommends that, to ensure integrity, all trade unions are treated equally for dispute resolution clauses under the
EBA or Modern Award in that if the trade union has a member, they have standing to advocate on behalf of their member (p.
2).
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The NPAQ recommends that, to ensure integrity, if a trade union can demonstrate membership of an employee covered by a
proposed EBA, then it has the same benefits as registered organisations that they become an alternate default bargaining
representative (p. 2).
The NPAQ respectfully submits that the Bill can be overcome through the enterprise agreement making processes, in
particular with ‘permitted matters’ in the agreement making process. Bargaining representatives could simply insert clauses in
the EBA that allow for ‘deregistered’ organisations to return as trade unions and insist on right of entry clauses bringing the
‘dysfunctional behaviour’ back to the workplace (p. 11).
Given the significant human rights issues enabling trade unions to function freely, the NPAQ urges the committee to look at
individual conduct. The Bill could be improved in our respectful submission including cascading the conduct that warrants
sanctions, with increasing severity: mistaken fact, reckless conduct, deliberate, then an aggravation for senior officials (p. 11).
Schedule 2 – Cancellation of registration
The NPAQ recommends that the Bill walk away from deregistering and amalgamation of registered organisations as this will
further lessen competition and prevent registered trade unions from functioning freely (p. 1).
Schedule 3 – Administration
Drafting of Section 6 under Schedule 3 of The Bill allows for the possibility of a non-interim administrator, an event that would
lead to the union no longer have the democratically elected representative in the immediate term and the
deregistration/disbanding of the organisation more completely (p. 9).
Schedule 4 – Amalgamation
The NPAQ recommends that the Bill walk away from deregistering and amalgamation of registered organisations as this will
further lessen competition and prevent registered trade unions from functioning freely (p. 1).
Drafting of Schedule 4 in creating a public interest test for a potential amalgamation creates a hurdle for members of two or
more unions to vote in a ballot to approve the potential amalgamation as per the wishes of the members, giving effect to their
human right to both vote and have that vote directly impact their representational right without interference of other
individuals and companies not directly related to such representation (p. 9).
Under section 72C allows a broad range of potential submissions from both inside and outside the relevant industry, with
section 72C(c) allowing a body with a remote connection (although not necessarily a remote interest) to have a substantive
effect on the representational rights of the individuals of the unions applying for amalgamation (p. 9).
The addition of compliance record events as a disqualifying factor under 72E only appears to require a single organisation in
the amalgamation to reach this threshold (p. 9).
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Mr Neil Smith
Does not support
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Member of the public
General concerns
Mr Smith is genuinely concerned that the Bill is designed to stop unions from doing a proper job of protecting members.
If certain union representatives have broken the law, they have been penalised with fines etc. These laws already exist. There is
no reason to use as an excuse to attack unions because of philosophical differences.
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United Firefighters
Does not support
Union of Australia
International obligations/freedom of association
The Bill amounts to undue political and outside interference on the general legal principle of freedom of association and this
Bill is a direct attack on International Labor Organization conventions, trade unions, trade union members and the working
class of Australia.
The provisions of the Bill contravene Article 23(4) of the United Nations Universal Declaration of Human Rights and Article
22(2) of the International Covenant on Civil and Political Rights, as well as Article 8(1)(a) of the International Covenant on
Economic, Social and Cultural Rights and Article 3 of ILO Convention 87.
The measures have the potential to deny individuals the right to form and joint trade unions due to the actions of individual
officers or members.
Corporate comparison
Bill is justified by Corporations Act comparison, but a trade union differs vastly from a corporation.
Schedule 1 goes beyond the Corporations Act which has no fit and proper person test.
Schedule 2 goes beyond the Corporations Act power for a court to wind up a business.
Schedule 3 grounds are unjustifiably broader than the grounds for the appointment of an administrator under the Corporations
Act.
Schedule 1 – Disqualification
Disqualification is on an expansive range of grounds.
Automatic disqualification means that officials will be ineligible to be a candidate, to hold office or to be elected in an
organisation unless the conviction and any term of imprisonment was more than 5 years ago. The Bill broadly redefines
‘prescribed offence to include an offence against a designated law’.
Standing allows governments, or even employers with adverse interests, to dictate whether a democratically elected
representative retains their position. There are no proposed safeguards to monitor and prevent frivolous or spiteful
applications.
Only members should be able to remove elected union leaders.
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The Act contains existing provisions for removal of persons from office and unions have their own processes.
Designated finding could include minor offences such as late lodgement of financial reports, alongside more serious criminal
convictions such as fraud.
Automatic disqualification excludes Court’s discretion – in cases where a person is disqualified because of a conviction against
an overseas law this may preclude the court from considering whether the conviction is viewed at a similar gravity under
Australian law.
Schedule 2 – Cancellation of registration
The court must cancel registration if certain grounds are established and the organisation does not satisfy the court that
deregistration is unjust.
There is the potential for deregistration to be ordered following a minor breach of the law by only one part of the organisation.
Unacceptable that individuals may be denied representation because of the actions of another person.
Even where a union satisfies the court deregistration would be unjust they can make alternative orders. Court can dictate who
leads a union or who can be a member.
Important that unions feel free to recommend industrial action where appropriate, yet some forms can lead to cancellation
under the Bill.
Standing for a person with sufficient interest invites bodies with an anti-union agenda to interfere with union affairs and use
court processes to divert union resources.
Reverse onus of proof in the schedule is unexplained and problematic. It lies with the organisation to justify why it should not
be deregistered. Onus should be on the applicant, which would also decrease the likelihood of claims aimed at attacking
unions.
Schedule 3 – Administration
Schedule 3 essentially provides punitive measures to address any alleged wrongdoings by the union or its officers.
Strict liability offence in this section has not been justified and is beyond the recommendations of the Heydon Royal
Commission.
Allocates an unelected administrator with a broad range of powers which could result in the overturning of an elected
representative of the union.
The most appropriate persons to decide whether a union is dysfunctional and acting contrary to member interests, are the
members themselves. It is unsuitable for the court to make this decision on the members’ behalf.
Schedule 4 – Amalgamation
The new public interest test process infringes on the democratic choices of union members to freely amalgamate their
organisations.
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Compliance record events include serious criminal activity alongside minor industrial relations breaches
There is no mechanism to distinguish between findings of individuals who held office in the past and it is unclear whether these
could be utilised as a factor against amalgamation.
Standing for anyone with a sufficient interest is problematic.
Miscellaneous
The submission spends time detailing issues facing firefighters and undue government interference with the profession. It
notes the 2016 changes to the FW Act to impose restrictions on emergency management employment agreements that are not
imposed on any other industry or employee.
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National Farmers’
Supports (raises no objections)
Federation
General points
Claims of misconduct and criminality in relation to a particular RO or its office-holders can compromise the purposes of the
individual organisation as well as harming the reputation of ROs more generally. The NFF is therefore supportive of any
legislative instrument which seeks to promote a higher standard of conduct amongst those organisations and their office-
holders in the interests of all affected parties, including the ROs themselves (p. 6).
The NFF supports the Bill on the basis that it seeks to identify and address serious and recurring misconduct by ROs and their
office-holders in order to ensure these organisations are acting in the best interest of their members and the Australian public
(p. 7).
The NFF does not raise any concerns or reservations in relation to the Bill (p. 7).
Regulatory and legal burden
We acknowledge that legitimate concerns may exist as to the breadth of the new provisions and the potential for burdensome
overreach – the NFF is naturally wary of any new law that threatens to impose unnecessary red tape. All such concerns should
be given due consideration and assessed on their merits as part of the legislative process (p. 6).
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Unions Tasmania
Does not support
General concerns
This Bill is a political manoeuvre intended to silence working people and the unions that represent them. Unions act as a check
on those who exercise disproportionate economic and political power. In order to continue to fulfil that critical role in a free
democracy, unions must remain free from political overreach or corporate interference (p. 2).
Unions Tasmania submits that the focus of Government should be on dealing with the wage theft crisis affecting Australian
workers, not attacking unions who are supporting workers to retrieve stolen wages (p. 5).
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The Bill threatens to discourage union members from involving themselves in the administration of their unions (p. 8).
International obligations/freedom of association
The democratic nature of unions is enshrined in international law. The Bill has been criticised both within Australia by the
Parliamentary Joint Committee on Human Rights as well as by the International Trade Unions Confederation (ITUC) (p. 2).
Regulatory and legal burden
The Bill ignores an already comprehensive regime of union regulation and governance and gives politicians and big business
unprecedented rights to seek to disqualify union officials, shut down unions and prevent workers from joining together to
improve their wages and conditions (p. 2).
Corporate comparison
Company directors may be disqualified for contraventions of corporate laws, but not in relation to contraventions of Fair Work
or work health and safety laws. There is no direct mechanism for a company to be wound up or placed under administration or
have a merger refused due to a history of noncompliance with law by the company, its directors or the members (p. 6).
Schedule 1 – Disqualification
The Parliamentary Joint Committee on Human Rights, in finding that the disqualification provisions of the Bill are likely to be
incompatible with the right to freedom of association, noted that an entire elected leadership can be disqualified for
contraventions of the union regardless of whether the union members considered that the conduct which led to a ground for
disqualification being established was in their best interests. Members may be of the view that taking particular action, such as
industrial action, is in the interests of members (p. 4).
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Chamber of Commerce Supports
and Industry WA
General concerns
It is the experience of CCIWA and its members that harmonious industrial relations are promoted when the rules governing the
operation of the industrial relations system are complied with by all parties.
International obligations/freedom of association
The Bill does not impinge on the elections conducted by registered
organisations. However, the argument raises questions as to how democratic union elections are.
Does not infringe upon employees’ freedom of association.
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Australian Resources
Supports
and Energy Group
(AMMA)
General concerns
The EI Bill contains four main measures aimed at ensuring all Registered Organisations and their officials act in accordance with
the law and exhibit behaviour and accountability that their members and the broader community are entitled to expect. These
measures include:
a. increasing the powers of the Federal Court to disqualify an official of a Registered Organisation for repeated breaches of
workplace laws and making it an offence for a disqualified person to continue to act as an official;
b. providing the Federal Court powers to cancel the registration of a Registered Organisation for repeated breaches of workplace
laws;
c. allowing the Federal Court to declare a Registered Organisation to be ‘dysfunctional’ or incapable of functioning effectively and
appointing an administrator; and
d. reintroducing a public interest test for proposed amalgamations of Registered Organisations
AMMA submits the Senate Committee investigate and recommend further measures to address an emerging strategy whereby
trade unions
are using formal “alliances” to circumvent some of the measures within the EI Bill.
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Menzies Research
Supports
Centre
General comments
The Bill represents the culmination of the Australian community demanding a certain standard of acceptable behaviour and
conduct of officials. It goes a long way to restoring integrity to our registered organisations.
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Queensland Nurses
Does not support
and Midwives’ Union
Schedule 2 – Cancellation of registration
Section 28G of the bill will capture all public, private and aged care nurses because an employer (or person with sufficient
interest) will be able to argue any industrial action by nurses and midwives could have a substantial adverse effect on the
safety, health or welfare of the community or part of the community. Thus, the peak body, the ANMF could be subject to
deregistration on the basis of action taken by one branch that may in itself be minor.
Schedule 4 – Amalgamation
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‘A person with a sufficient interest’ will have the right to be heard in the amalgamation process along with the ROC, the
Minister and other registered or unregistered organisations in the industry or otherwise affected. This level of interference is
unprecedented and unnecessary.
The public interest is fundamental to the purpose of unions. To allow third parties with sectoral interests to intervene in union
amalgamations delivers these parties an extraordinary power that is not replicated should a union wish to intervene in a company
merger. It is a double standard that by any measure is unreasonable and unwarranted.
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Australian Services
Does not support
Union
General concerns
Trade unions in Australia are now the most scrutinised public organisations in the country.
The Bill comes at a time when Australians are fed up, not with trade unions, but rather with the total lack of scrutiny of
corporations with corruption, wage theft and corporate excesses increasingly becoming a common business model rather than
the exception. If the Federal Government was genuine about ‘Ensuring Integrity’ in all public organisations they would establish
a National Anti- Corruption Commission. To argue otherwise is to only demand that registered organisations act under
burdening regulation, while corporations and other public organisations can self-regulate their own integrity.
The excessive power of an interventionist Registered Organisations Commissioner, anti-union Minister or any person with
sufficient interest in direct conflict with the Union or individual officers will drive volunteers away from holding office.
International obligations/freedom of association
The Bill is undemocratic, inconsistent with ILO Conventions and allows undue political and industry interference into how
unions conduct themselves. The Bill interferes with the right to freedom of association, the right to form and join trade unions
and the right of trade unions to function freely.
Standing
The granting of standing to ‘a person with sufficient interest’ once again provides a tactical advantage for employers and
corporations seeking every opportunity to attack unions and reduce labour costs and further embed inequality in the
workplace.
Regulatory and legal burden
The aim of any heavy handed regulation will be to silence this voice so as trade unions become no more than community
bystanders rather than at the forefront of setting minimum working conditions and social reform such as Medicare and
compulsory superannuation to name a few.
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The free and democratic functioning of unions and employer organisations without regulatory, political or industry interference
is recognised in international law. Australian research has demonstrated that corrupt practices within unions are more
effectively addressed by member participation and internal democracy than by state regulation.
Schedule 1 – Disqualification
The proposal to replace and extend the existing grounds for disqualification from holding office is legislative overreach. Once a
ground for disqualification is established the Court may have regard to matters that occurred before the commencement of
Schedule 1.
A person of sufficient interest could potentially include an employer who was seeking a tactical advantage over a union in
bargaining. The balance in power in the workplace would tip even further to employers, particularly large corporations who are
free of any such level of scrutiny.
Volunteer Officers will suffer the most under the Bill as they will be subject to limited, if any, access to union resources and will
be left on their own to fight disqualification from office or deregistration of their union purely for legitimately advancing or just
trying to protect their members’ best interests.
Schedule 2 – Cancellation of registration
The Bill strips the members of a union of their right to decide what is in their best interests and places it in the hands of the
Court. It is offensive that a Court should determine the best interests of the members of an organisation, rather than the
members themselves.
In the case where a ground is established, the Court must cancel the registration of a union if the union does not satisfy the
court that the cancellation of registration would be unjust. If the union satisfies the Court that cancellation of registration
would be unjust, the Court may make alternative orders. These orders would allow the Court to decide that a properly elected
person could not run the union, as well as who could be members of the union and how the organisation would carry on its
activities and exercise its rights under the
Fair Work Act 2009.
The Bill also invites the intervention of external bodies in the affairs of the union. The Bill may permit an employer or employer
association to seek the deregistration of a union. Aside from the violation of the right to freedom of association, there is a risk
that this standing could potentially be used by employers tactically during disputes and bargaining.
The Bill may also prevent a union from strategically applying its resources in the best interests of its members (s 28C (1)(b)).
Unions routinely focus their activities and then allocate resources to ensure that they can best advance the interests of their
membership as a whole. This may mean a greater focus on one section of the membership than another from time to time. So
long as these decisions are made according to the democratic processes described in the organisations rules, they are an
appropriate part of the organisation’s self-management.
Section 28C establishes a system of collective punishment for individual actions. 28C incorporates concepts from corporations’
law that cannot be applied in the industrial context. Members, who may have been entirely divorced from the activities of the
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corrupt individuals, could be denied industrial representation and the other benefits of trade unionism. Deregistration is not
the appropriate remedy to deal with the corrupt conduct of individual union leaders.
Schedule 3 – Administration
The ASU is most concerned with the Minister, Commissioner and indeed “any other person having a sufficient interest in the
organisation” having standing for an application to permit the appointment of an administrator to registered organisations as
part of a remedial scheme for dysfunctional organisations. There are Federal Governments like the current Morrison
Government and previously the Turnbull Government; who have treated most if not all unions as dysfunctional with little or no
role in a modern deregulated economy.
The Bill significantly expands the existing regime for administration of ‘dysfunctional’ organisations, which are said to be
modelled and adapted from broadly equivalent provisions of the Corporations Act. However registered organisations are not
corporations and in any case the provisions are not consistent with the Corporations Act.
The Court has a broad power as to the remedial scheme that can be imposed on an organisation, which can include reports to
be given to the Court and the holding of elections. The ASU contends that this is an overreach.
Schedule 4 – Amalgamation
The new public interest test for union amalgamations is designed to stop amalgamations regardless of the will of the members’
vote. A range of persons can make submissions about ‘compliance record events’ where clerical and administrative oversights
will be held against amalgamating unions while those having engaged in ‘obstructive industrial action’, regardless of the
circumstances e.g. extremely unsafe workplaces; is relevant to the Fair Work Commission’s decision. The amendments enable
significant regulatory, political and industry interference in the free and democratic functioning of unions.
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