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Wednesday, 13 August 2003
Page: 18384


Ms GEORGE (1:25 PM) —As the saying goes, some things never change. With regard to the current Minister for Employment and Workplace Relations, it is quite clear that one thing that does not change is his constant and consistent effort to bring into this parliament legislation which is clearly aimed at attacking the union movement and working people. Despite the constant effort he makes, the Senate continues, as we have seen just recently, to apply sensible measures and reject the kind of extreme legislation and proposals that we see before us today. Another thing that does not change is that government members all seem to read from a pretty well prepared and rehearsed script. I think in the debate on the Workplace Relations Amendment (Compliance with Court and Tribunal Orders) Bill 2003 the member for Corangamite and the member for Canning have shown clearly that the script that they read from is a script prepared by the minister which only paints one small part of the overall picture as far as the workings of industrial relations in our community go.

With all due respect, I think this bill is another one of these bills that comes to the House under a guise this time of allegedly upholding the rule of law, making sure that the orders of the commission are obeyed and wagging the finger at all of those recalcitrant unions and unionists. Nothing I heard in the member for Corangamite's speech pointed to the lack of action on the excesses of corporations and the top end of town. It is almost as if the rule of law argument is being created to ensure that the allegedly noncompliant, nasty unionists and their representatives in the union movement are brought to heel.

If you look at the details of this bill before us and apply any intellectual reasoning to it, you can see that it is quite unnecessary because the powers already exist within the system to deal with any actions that could be described as contempt of court orders, be it by employers or by unionists. We are told, and the argument is made, that we need measures to enforce compliance with orders of the Federal Court and the AIRC by members of registered organisations and, in the case of contravention, to impose financial penalties. Very seriously—and this is worth particular consideration—the bill would automatically disqualify a person who has failed to pay a fine that has been ordered from holding office in a registered organisation for up to five years unless the Federal Court orders otherwise. I do not think you have to be a genius to understand who the minister for workplace relations has in his sights. There is an automatic disqualification if a person does not pay a fine that has been ordered, and that disqualification is for up to five years.

When we look at the history of this government, this minister and the legislation that he brings to this parliament, we know that the main purpose of the legislation is to attempt to erode the representative powers of unions and to try to destroy the kind of collective representation that has been a hallmark of the labour movement in this country. While we have heard the member for Corangamite talk about the need for the rule of law to apply to all equally in our society, it is clear that the bill's focus is really to get at unions and unionists. And what is the purpose of all this? As I said, one thing that is constant in this parliament is this minister's continued ideological obsession against unionism.

The industrial relations act already contains strict provisions for the disqualification of people convicted of a prescribed offence, and no evidence has been presented by any government member, nor any compelling reason given, that the current prescriptive regulation of registered organisations is somehow inadequate or in need of improvement. As I indicated, an action for contempt of a court order is currently available for acts of noncompliance with an order or for acts that interfere with the process of the administration of justice. So what we have before us is a bill that was brought before this parliament by a minister who has contrived both a situation and a problem that do not exist in the real world. This contrived situation and the so-called problem exist only in the mind of a minister who is driven by an ideological obsession against unionists and the union movement. The minister is clearly posturing as an upholder of the rule of law, and he introduced this bill supposedly to ensure and enshrine the rule of law. But in so doing I think he is trying to create a stereotype of unionists in this country as law-breakers, because he is proposing punitive measures to deal with a non-existent problem.

The existing law requires compliance with court and commission orders that industrial action cease or not occur. As we know, an application can be made under section 127 of the act and, if the order is not complied with, the beneficiary of the order can seek to enforce it by applying to the Federal Court for an injunction. If an injunction is not complied with, a prosecution can be brought for contempt, which is punishable by fines and/or imprisonment. As I know from personal experience, in addition to facing possible injunctions and contempt of court proceedings, union members and union officials are also exposed to financially ruinous common law actions if they engage in unprotected industrial action. I know this from first-hand experience of many cases of employers serving common law writs on union officials—and at times union members—through which they seek millions of dollars in damages, often for the reasons cited of lost production.

The point I am trying to make is that no evidence has been brought to the parliament by the minister which demonstrates any existing deficiency in the powers of the Federal Court to grant injunctions and to punish contempts of court. If any such deficiency did exist then any bill that was brought before this parliament should be aimed at remedying that deficiency. But, as the government and the minister know, that is a fallacy because no deficiency exists. In fact, if there has been a notable failure to uphold the authority of the law in the Federal Court then the fault lies clearly with this government's failure to give effect to existing laws. And I would suggest to the members for Canning and Corangamite that they might discuss this issue further with both the Attorney-General and the minister for industrial relations. We are told that we need this new bill because we have to uphold the rule of law. Our counterargument is that the rule of law is there to be implemented and enforced.

There is a particular case that I want to draw attention to. It goes back to 2001, when a union official refused to pay a penalty for contempt of court. The Australian Industry Group then wrote to the Attorney-General, asking him to uphold the authority of the Federal Court and enforce the penalty. The Attorney-General, much to the AIG's surprise, branded the dispute a `private' one and refused to intervene. In a scathing judgment, the case judge had this to say:

... it is surprising that the Attorney-General has taken the view that a proceeding for punishment for contempt of the Federal Court is a “private proceeding” in relation to “private interests” and that when there is continuing wilful disobedience and public defiance of an order of the Federal Court that is not a matter that impacts on any “direct” interest of the Commonwealth.

The Attorney-General's view is at odds with decisions of the High Court ...

... ... ...

The Attorney-General's view of his role in relation to the judicial power of the Commonwealth is also at odds with long standing authority that the Attorney-General is the appropriate officer of the state to represent and safeguard the public interest in vindicating the authority of its courts.

... ... ...

It is also difficult to understand how the Attorney-General could form the view that the failure to pay a $20,000 fine to the benefit of the Consolidated Revenue does not directly affect the interests of the Commonwealth.

I cite this case as clear evidence that, when provided with the opportunity, this government, this Attorney-General and this minister failed to uphold the authority of the Federal Court under existing law. So I would suggest that the members for Corangamite and Canning and others who have spoken from the government side have further discussions with these relevant ministers to ascertain why they failed to uphold existing law and why this bill was brought before this parliament—allegedly, because the current system was not working.

The failure of this government should not be visited on decent and law-abiding trade unionists, but this is what the bill, essentially, is all about. As I said earlier, the minister sets out to create problems that do not exist and then to create so-called new solutions to non-existent problems as a pretext for further union bashing. In this country there is no problem with compliance with court orders that cannot be resolved through existing processes, laws and institutions. Furthermore, there is no widespread industrial law-breaking by unionists, which the minister well knows but chooses to disregard as he continues to give effect to his antiunion obsessions. I want to repeat that because I think it is a very important point: there is no widespread industrial law-breaking by unionists or unions in this country.

The minister knows this. On 19 December 2002 the minister published a list of 22 alleged breaches of court and commission orders by unionists in the period 1998-99 to 2001-02, almost all of which were untested. In that time frame there were approximately 1,618 applications to the Australian Industrial Relations Commission for orders that industrial action stop or not occur. Assuming that all the applications were granted and the minister's allegations with regard to breaches are correct, then 22 breaches of 1,618 orders means the level of contravention occurring currently in Australia by unions and unionists is approximately 1.4 per cent. A 1.4 per cent level of contravention is the so-called justification for bringing this bill to this parliament. Government members and ministers are certainly drawing an incredibly long bow in trying to create a picture of industrial lawlessness and recklessness when, on the minister's own figures and the statistics that you can obtain, the level of contravention is less than 1.5 per cent.

A 1.4 per cent level of contravention by unionists is being used to justify this bill, but contravention by the top end of town leads to no action. The double standards of this minister are clearly evident. He wants to introduce new offences and penalties for trade union officials, but the government he is a member of has refused to support amendments to the Corporations Act to stiffen penalties for serious breaches of that act. Existing penalties for breaches of Corporations Law are far too lenient, yet this government opposed Labor's private member's bill to rectify this situation. It is a disgrace that hardworking taxpayers have continued to subsidise the most notorious recent corporate handouts—golden handshakes, often to failed CEOs—to the tune of $50 million a year.

The government has failed to introduce legislative provisions to rein in obscene executive payouts. It has failed to take action against the use of corporate insolvencies and phoenix companies to avoid paying employee entitlements and debts. The minister tries—but very unsuccessfully—to pretend that his so-called even-handedness is the justification for the Workplace Relations Amendment (Compliance with Court and Tribunal Orders) Bill 2003. He wants us to believe that enforcement of compliance is intended for all, but we know clearly whom it is intended to get at.

Reference has been made by a number of government members to the proceedings of the Cole royal commission. I suggest to those government members that one does not have to look too much further than the Cole royal commission to understand and appreciate what the government's so-called even-handedness means in practice. The Cole royal commission was a political witch-hunt that cost Australian taxpayers $60 million. The hearings of the commission were disproportionately devoted to issues concerning alleged misconduct by union officials and members. Ninety per cent of hearing time was devoted to allegations adverse to unions. Despite the fact that the commission was provided with the names of 200 companies suspected of illegal or inappropriate behaviour, only one company was properly investigated. Just 3.3 per cent of hearing time was devoted to allegations adversely affecting employers.

In an industry where one worker dies every week, not one employer was put in the box to be questioned about poor safety practices. The commission did not examine evidence of employer noncompliance with legal obligations referred to it by unions. It seems amazing that this could be so when everybody knows that the construction industry suffers from high degrees of tax evasion and avoidance and that there is widespread incidence of phoenix companies being used to deny workers their legal entitlements and, often, drive subcontractors into liquidation. It seems everybody knows this except the minister, because this fact was verified by the ATO submission to the commission. The submission claimed that the industry hides up to 40 per cent of its income and is twice as likely as other industries to have outstanding tax debts.

You can see in the practice of the royal commission the pretence of even-handedness and impartiality. You only need to look at the time that was given to evidence against the unions, predominantly the CFMEU and its members, and the almost paltry examination of the practices of employers and companies in an industry that we know suffers from high degrees of tax evasion and avoidance, often at the expense of workers. The test of even-handedness and the so-called upholding of the rule of law were exposed in the proceedings of the royal commission as absolute bunkum. No effort was spared in attempting to get at the CFMEU as a reg-istered union and, in addition, at its delegates and members. But little attention, if any, was given to employer breaches of the law, be they through tax avoidance, collusive tendering, use of strategic liquidations to avoid obligations, failure to comply with OH&S standards or the illegal employment of immigrant labour, which is being used to drive down wages and safety standards.

What happened in practice during the proceedings of the Cole royal commission is exactly the kind of sham that would be given effect by the carriage of this bill. This bill has nothing to do with upholding the rule of law. The law that exists should be enforced. There have been opportunities when it could have been enforced when the government has failed to have it enforced. There is no rational reason for the introduction of this bill. If there are any deficiencies in the current operation of the legislative framework, we should deal with them. But, as we all know, some things never change. The minister's obsession with introducing antiunion, antiworker legislation to this parliament week after week—thankfully, to have it similarly constantly defeated in the Senate—just goes to show that the minister has learned nothing from the realities of industrial relations in this country. This legislation is a sham, and the proceedings of the Cole royal commission give enough reason as to why this bill should be comprehensively rejected by the House and by the Senate.