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Fair Work (Registered Organisations) Amendment (Towards Transparency) Bill 2012

Introduced into the Senate on 27 November 2012
By: Senator Abetz

1.1        This bill seeks to amend the Fair Work (Registered Organisations) Act 2009 to increase financial transparency and accountability by aligning the relevant obligations of registered organisations (including trade unions) to those that apply to corporations under the Corporations Act 2001, in particular:

• requiring full reports to be lodged with Fair Work Australia;
• making it an offence for officers who do not act in good faith or who misuse their position;
• increasing penalties for existing offences; and
• making it a criminal offence for an organisation, branch, officer or employee not to comply with an applicable court order.

Compatibility with human rights

1.2        The explanatory memorandum contains a free-standing statement of compatibility, which states that the bill ‘does not engage any of the applicable rights or freedoms as listed in the Human Rights (Parliamentary Scrutiny) Act 2011’ and is therefore ‘compatible with human rights as it does not raise any human rights issues.’

1.3        However, insofar as the bill proposes to regulate certain trade unions by imposing duties on union officials and providing that certain conduct constitutes a criminal offence, it engages the right of trade unions in article 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) which provides that parties to the convention undertake to ensure:

The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others.

1.4        Article 8 also provides that nothing in its provision authorises a party to the International Labour Organisation (ILO) Convention of 1948 concerning Freedom of Association and Protection of the Right to Organise 'to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.’

1.5        Article 8 permits regulation of trade union activities and finances provided that any limitation involved does not impinge on the guarantees provided for in ILO Convention No 87.  Articles 3 and 8 of that Convention provide:

Article 3

3. (1) Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.

3. (2) The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.

Article 8

8. (1) In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land.

8. (2) The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.

1.6        The ILO Committee on Freedom of Association[1] has considered the question of the permissibility of regulating the operations of unions and external scrutiny of their finances.[2] While expressing concern about the possibility of government interference in the operations of trade unions, it has also recognised the legitimacy of external scrutiny in order to prevent or detect fraud or embezzlement.[3]

1.7                 The committee considers that the proposed bill would involve an interference with the rights guaranteed by article 8(1) of ICESCR and article 3 of ILO Convention No 87 but that such an interference would be permissible.

1.8                 The committee intends to write to Senator Abetz to draw to his attention the relevance to the bill of article 8 of the ICESCR, as well as the practice of the responsible bodies of the International Labour Organisation, in particular the Governing Body Committee on Freedom of Association.

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