Bills Digest no. 91 2014–15
PDF version [522KB]
WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Anne Holmes, Economics Section
Jaan Murphy, Law and Bills Digest Section
5 May 2015
This Bills Digest is an update of Bills
Digest no. 98 of 2013–14, which in turn was based on Bills
Digest no. 24 of 2013–14, which dealt with an earlier version of this Bill.
Contents
History
of the Bill
What the current Bill does
The case for passing the previous Bill
Why the previous Bill was rejected
Date introduced: 19
March 2015
House: House of
Representatives
Portfolio: Employment
Commencement: Schedule
1 commences on a day to be fixed by Proclamation, or immediately before
Schedule 2 commences; Schedule 2 commences 1 July 2014.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The Fair Work (Registered Organisations) Amendment Bill 2014
[No. 2] (the current Bill) is virtually identical to the Fair Work (Registered
Organisations) Amendment Bill 2014 (the previous Bill) with the Government
amendments which were agreed to in the House of Representatives.[1]
The previous Bill was negatived in the Senate on 2 March 2015. (Of the
cross-bench Senators, Senators Day, Leyonhjelm and Xenophon voted with the
Government.[2])
That Bill in turn was similar to the Fair Work (Registered Organisations)
Amendment Bill 2013 together with Government amendments which were tabled (the
original Bill).[3]
For background commentary (including a summary of
consideration of the Bill by committees) and detailed consideration of the
provisions in the Bill the reader should refer to the two earlier Bills
digests.[4]
Double dissolution
election trigger
If the current Bill is passed by the House of
Representatives and rejected by the Senate, it could constitute grounds for
dissolution of both houses and a general election.[5]
The following outline of the double dissolution process is
taken from the bills digest for the Minerals Resource Rent Tax
Repeal and Other Measures Bill 2013 [No. 2].[6]
Section 57 of the Constitution[7] provides that each of the following steps must
be satisfied for a Bill to be a double dissolution trigger:
- step
1: the House of Representatives passes a proposed law
- step
2: the Senate rejects or fails to pass it, or passes it with amendments to
which the House of Representatives will not agree
- step
3: after an interval of three months the House of Representatives, in the same
or the next session, again passes the proposed law with or without any
amendments which have been made, suggested, or agreed to by the Senate
- step
4: the Senate rejects or fails to pass the law, or passes it with amendments to
which the House of Representatives will not agree and
- step
5: the Governor-General may dissolve the Senate and the House of
Representatives simultaneously; a step that would, by convention, normally be
taken only on the advice of the Prime Minister.
A Bill must fail twice in the Senate to become a 'trigger'
for a possible double dissolution election. It may be re‑introduced at
any time within a Parliamentary term, but there must be a minimum interval of
three months between the first failure in the Senate and the passage of the
Bill in the House of Representatives the second time.[8]
The current Bill (like the previous Bill and the original
Bill) creates a Registered Organisations Commissioner, and a Registered
Organisations Commission, within (but independent of) the Office of the Fair
Work Ombudsman. The Commissioner will supervise the conduct of employer and
employee organisations registered under the Fair Work Act 2009. It also
provides for:
-
increased disclosure requirements for both registered
organisations and their officers (including new related party disclosure
requirements)
- stronger coercive investigatory powers for the Commissioner (with
fewer limitations on their use) and
-
increased penalties, including criminal penalties.
Government members argued that the previous Bill should be
passed because:
A member of a registered organisation that has paid fees to
somebody else to advocate on their behalf should have complete confidence that
those people are using that money to fight for the things which they were
employed to do.[9]
The Government considered that examples of corruption and
fraud which had been established in the courts (including cases involving the
Health Services Union and particularly Craig Thomson) demonstrated the need for
tighter regulation.[10]
Government members also pointed out that some of the provisions in the previous
Bill were directed at fixing onerous disclosure requirements introduced by the
Labor Government.[11]
The Coalition had gone to the election with the policy embodied in the Bill,
and it had been endorsed by voters.[12]
Independent Senator Nick Xenophon noted that union officials
had raised with him the need for stronger measures against corruption in
unions; that ‘union members should have even greater
protections than shareholders because the duty their union owes to them ... goes
much further than a financial return’; and that ‘this Bill strikes a reasonable
balance between scrutiny and freedom of association’.[13]
Labor members argued that the evils which the Bill was
supposed to address had in fact been addressed in the Fair Work (Registered
Organisations) Amendment Act 2012, and that legislation was hardly bedded
down.[14]
Labor considered that the Bill imposed an unacceptable regulatory burden,
partly because it cut across the earlier Act.[15]
The proposal to regulate registered organisations like corporations did not
make sense because the two kinds of organisation were fundamentally different.
Further, the penalties in the Bill in fact exceeded those for officers of
corporations. The provisions of the Bill would make it very hard to recruit
people to positions, often voluntary, in registered organisations.[16]
Australian Greens Senators argued that the purposes of
corporations were different from the purposes of registered organisations:
Corporations law requires directors to act
in the best interests of their shareholders and to continue to make a profit.
Unions, on the other hand, exist to advance the interests of the people they
represent.[17]
Independent Senator Jacqui Lambie pointed
out that corruption in corporations might be a higher priority for the Government,
and that the Bill pre-empted the Royal Commission into Trade Union Governance
and Corruption. She expressed concerns about the limitation on the right to
silence imposed by the Bill.[18]
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. In
his second reading speech, the Minister for Education said that he was
reintroducing the Bill: see C Pyne, ‘Second
reading speech: Fair Work (Registered Organisations) Amendment Bill 2014 [No.
2]’, House of Representatives, Debates, 19 March 2015, p. 2907,
accessed 16 April 2015.
[2]. Fair Work (Registered Organisations) Amendment Bill 2014, Division, second reading, Senate, Debates, 2 March
2015, p. 866, accessed 24 April 2015.
[3]. Links
to the previous Bill, its Explanatory Memorandum, second reading speeches and Bills
digest can be found on the previous Bill’s homepage: Parliament of Australia, ‘Fair Work (Registered Organisations) Amendment Bill 2014 homepage’, Australian Parliament website, accessed 17 April 2015. Links
to the original Bill, its Explanatory Memorandum, second reading speeches and
bills digest can be found on the original Bill’s home page: Parliament of
Australia, ‘Fair Work (Registered Organisations) Amendment Bill 2013 home page’, Australian Parliament website, accessed 17 April 2015.
[4]. J
Murphy and A Holmes, Fair
Work (Registered Organisations) Amendment Bill 2013, Bills digest, 24,
2013–14, Parliamentary Library, Canberra, 2013, accessed 5 May 2015; J Murphy
and A Holmes, Fair
Work (Registered Organisations) Amendment Bill 2014, Bills digest, 98,
2013–14, Parliamentary Library, Canberra, 2014, accessed 5 May 2015.
[5]. The
Senate, ‘Bills laid aside or negatived, their history and status as possibly
meeting the requirements of section 57 of the Constitution [44th Parliament]’, as at 19 March
2015, Australian Parliament website, accessed 17 April 2015.
[6]. T
Dale, K Swoboda and M Klapdor, Minerals
Resource Rent Tax Repeal and Other Measures Bill 2013 [No. 2], Bills digest, 1, 2014–15, Parliamentary Library, Canberra,
2014, p. 7, accessed 27 April 2015.
[7]. Constitution,
accessed 5 May 2015.
[8]. For
further information on double dissolution triggers, see M Rodrigues, N Horne
and C Lawley, Double
dissolutions: triggers, elections and proposals for reform, Background
note, Parliamentary Library, Canberra, 13 May 2010, accessed 26 June 2014.
[9]. B
McKenzie, ‘Second
reading speech: Fair Work (Registered Organisations) Amendment Bill 2014’,
Senate, Debates, 11 February 2015, p. 431, accessed 23 April 2015.
[10]. E
Abetz, ‘Second
reading speech: Fair Work (Registered Organisations) Amendment Bill 2014’,
Senate, Debates, 11 February 2015, p. 862, accessed 23 April 2015.
[11]. Ibid.
[12]. Ibid.
[13]. N
Xenophon, ‘Second
reading speech: Fair Work (Registered Organisations) Amendment Bill 2014’,
Senate, Debates, 11 February 2015, p. 859, accessed 24 April 2015.
[14]. Fair Work (Registered
Organisations) Amendment Act 2012, accessed 5 May 2015.
[15]. S
Lines, ‘Second
reading speech: Fair Work (Registered Organisations) Amendment Bill 2014’,
Senate, Debates, 11 February 2015, p. 427, accessed 23 April 2015.
[16]. C
Bilyk, ‘Second
reading speech: Fair Work (Registered Organisations) Amendment Bill 2014’,
Senate, Debates, 11 February 2015, p. 418, accessed 23 April 2015.
[17]. J
Rice, ‘Second
reading speech: Fair Work (Registered Organisations) Amendment Bill 2014’,
Senate, Debates, 11 February 2015, p. 414, accessed 23 April 2015.
[18]. J
Lambie, ‘Second
reading speech: Fair Work (Registered Organisations) Amendment Bill 2014’,
Senate, Debates, 11 February 2015, p. 857, accessed 23 April 2015.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.
Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Entry Point for referral.