Away with the sledgehammer—to crack a nut, use a nutcracker
The Work of the Committee
We thank the work of the Committee and Secretariat in examining this bill. With the benefit of 67 submissions, more than a thousand pieces of correspondence and five public hearings, the Committee has worked through a range of complex and difficult issues.
Collective Good and Bad
The whole is greater than the sum of its parts. Registered Organisations bring people with common interest together to strengthen outcomes.
Unions are a good example. Unions are formed for the primary purpose of securing improvements in employment conditions by increasing the bargaining power by the banding together of workers. They negotiate fair wages, employment benefits and work rules. The role they play in the betterment of society is crucial and must be supported. However, in fulfilling that role they must be respectful of the law. Unfortunately, this has not been so in regards to a small number of unions and some union officials.
The Master Builders Australia (MBA) submission highlighted the track record of some unions (and their members) in the building and construction industry who have been found guilty of breaching the Fair Work Act 2009.
The behaviour of these unions and members has been by any standard incorrigible, never expressing regret, or contrition; never admitting wrongdoing or accepting fault despite judgements finding evidence to the contrary; considering penalties to be nothing more than a 'cost of doing business'; failing to take corrective action; failing to provide undertakings about future compliance with the law; expressing public pride in breaking the law; and encouraging others to break the law. This can in no way be considered acceptable.
Indeed, it is the pronouncements (with a hint of frustration) by judicial officers in judgements against building and construction unions contained in the MBA submission that has convinced Centre Alliance that there is a problem in need of a remedy.
However, the bill in its current form does not represent the correct remedy. It’s the equivalent of using a sledgehammer to crack a nut when only a nutcracker is needed. The bill in its current form would likely result in disqualification of members and officials, or de-registration of unions, that are by and large involved in good. Extensive changes must be made before the bill could be supported.
Recommended changes are outlined below.
Application Threshold Issues
Currently the bill allows a court application for disqualification or
de-registration to be made for trivial or technical breaches of the law. A different approach that addresses minor breaches (which can be dealt with appropriately by existing laws) without disqualification or de-registration must be adopted.
A demerit points scheme similar to that used for drivers licences could be adopted. Under the drivers licence scheme, minor breaches are penalised but don’t give rise to licence cancellation. Significant breaches or repetitive minor breaches could. Like a drivers licence scheme, the passage of time should see a drop-off of accumulated demerit points.
If a similar scheme is incorporated, an application to the court under this bill should only be possible once a particular demerit threshold is reached.
It is noted that the current bill permits automatic disqualification for convictions in a foreign country. Noting that some countries have laws inconsistent with Australian culture and values or have immature or politically compromised judicial systems, this should not be permitted.
The bill as it stands permits the Minister, interested parties and the Registered Organisation Commissioner to make a disqualification or de-registration application to the court. It is Centre Alliance’s view that only an independent and impartial Registered Organisation Commissioner should be permitted to make such an application.
In making an application to the court stemming from a member or organisations misconduct, the Commissioner should be obliged to consider as a priority, conduct that demonstrates serious concerns or a systemic attitude to law breaking.
Consideration by the Courts
The current bill limits the discretion for a judicial officer in deciding whether or not to make an adverse order against a member or organisation.
The bill must be amended to provide greater judicial discretion and to mandate that the court must consider the gravity of the offences which gave rise to the application for disqualification or de-registration before making a decision to do so.
Schedule Four of the bill creates a public interest test for the amalgamation of a registered organisation.
It is Centre Alliance’s strong view that law abiding organisations should be allowed to amalgamate without interference.
Given that Schedule One (Disqualification of individuals from holding office) and Schedule Two (Cancellation of registration of organisation) are designed to eliminate serious or repetitive conduct by members and organisations, Centre Alliance remains unconvinced at this stage as to the merits of Schedule Four.
The bill, in its current form, should not be passed. There is scope for amending the bill to do public good.
Centre Alliance will consider any proposed amendments in the light of the concerns and recommended changes outlined above.
The bill, in its current form, should not be passed.
Senator Rex Patrick