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Issue #1797      October 4, 2017

“Affront to democracy”

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

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

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

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

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

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

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

The Ensuring Integrity Bill is far more serious and dangerous for workers and their unions than any previous legislation, its provisions are far more draconian than those in the legislation governing the ABCC.

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

Disqualification from office

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

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

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

Or it could be the union telling members to go home following a serious workplace accident or fatality or taking some form of action following the discovery of asbestos on site. (“Protected” action is limited to bargaining periods around a new enterprise agreement and following a lengthy process including a ballot.)

Outlawing union activity

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

They are a result of repressive legislation that outlaws legitimate trade union activity, not any wrongdoing by a union official.

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

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

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

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

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

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

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

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

Deregistration

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

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

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

Administrator

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

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

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

Under the Corporations Act a whole company is not placed in administration because one or several of its senior staff have ripped off the company or its clients. The scandal-ridden big banks have not been placed into administration but a union would be.

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

Prevention of amalgamations

The Fair Work Commission would have the power to determine whether union amalgamations could go ahead. At present the criteria for amalgamation are based on a democratic ballot of members, often carried out by the Australian Electoral Commission.

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

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

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

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

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

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

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

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

Change the rules!

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

The section on amalgamations has the immediate purpose of preventing the proposed CFMEU/MUA/TCFUA but would give the Fair Work Commission the power to prevent other mergers in the future.

The intent of the bill is to disqualify union officials from holding office for doing their job. It could be used to clean out the organisers and leaderships of unions who are fighting a massive employer offensive to smash workers’ wages and conditions.

Already, unions are extremely limited in what they can do legally. The Fair Work Act needs jettisoning and replacing by legislation that ensures workers’ rights, not employers’ rights.

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

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

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

The bill is presently under review by a Senate Committee, which is due to report by October 9. That leaves very little time to lobby and convince the cross-benchers that it should be defeated and inform the wider community of its dangers.

The government may well try to rush it through, uncertain of its numbers in the coming period in the Lower House, and to try to pre-empt the CFMEU/MUA/TCFUA amalgamation.

Next article – Editorial – Church and state can never mate

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