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Wednesday, 13 August 2003
Page: 18438


Mr BARRESI (5:45 PM) —It gives me great pleasure to rise and speak to the Workplace Relations Amendment (Compliance with Court and Tribunal Orders) Bill 2003, especially so soon after the division on the Workplace Relations Amendment (Fair Termination) Bill 2002, which had been rejected in the Senate. This bill further reinforces the fine record of the minister in his attempt to reform workplace relations in this country. The bill before the House is about respect: respect for the institutions that are framed to uphold the rule of law and make orders pursuant to the law. As expected though, regardless of how good policy is or how constructive proposed legislation is, the opposition will oppose it because they simply oppose all legislation regarding workplace relations. It would be seen as betrayal for those who sit on their preselection conventions and fund their campaigns—the unions—if they were to do anything other than oppose this legislation regarding compliance with court and tribunal orders.

The coalition took the election platform `Choice and reward in a changing workplace' to the electorate. This agenda is mandated. We have a Prime Minister leading the construction of a better Australia; we have Simon Crean trying to keep a grip on his leadership with the ALP's obstruction of the government's agenda and playing his piper's tune—that of the union movement. This bill is fundamental to upholding the rule of law. Any civilised society is grounded in its belief and respect for the rule of law. Such respect is necessary for the advancement of our development and the setting of social parameters to bring equity and justice to all. I know from the Prime Minister's report to this House on the Australian led Regional Assistance Mission to the Solomon Islands that lawlessness and disrespect for the legal system in the region can have disastrous effects on the fabric of a society. That same principle of reinforcing lawful behaviour is applied in this bill. In Australia, the rule of law applies to all without fear or favour and without recognition of one's station in life. That is the ideal, but all too often it is tested and occasionally fails.

There are a number of mechanics contained in this bill, which I will address with reference to their support of the government's mandated policy in this area. In addition to legislating to increase respect for the judicial process, the bill adds to the integrity of the workplace relations system in Australia through a number of important mechanisms. In our legal system, defiance and disrespect for a court of law and for the supremacy of justice would most likely find the offender in contempt of court. The system of workplace relations should not be any different. It is predicated on the operation and the observance of the law. The bill clearly calls for a cultural change to occur for the respect and rule of law to prevail in our industrial relations legal system. The examples of misconduct and defiance of the courts are now too widespread and harmful for the Australian parliament to ignore.

The Corporations Act 2001 sets out very clearly the duties that holding a position as an officer of a company attracts. There are also extremely severe penalties for failing to comply with the relevant sections of the act. That principle was extended and reflected in this bill through the duties it seeks to impose on officers and employees of registered organisations. They too are required to comply with the orders and the directions of the Australian Industrial Relations Com-mission and the Federal Court of Australia. We all know that in a society such as ours, we all have rights. Most of us at least acknowledge that with those rights come considerable responsibilities. The order to comply with the wishes of the commission and the Federal Court of Australia could not be construed as unreasonable. In fact, I would find it baffling if that was a belief held by any member sitting opposite.

As citizens of a developed, democratic nation we all subscribe to a social doctrine encompassing rights and responsibilities. It is the same for me, as a member of parliament, as it is for the next person. Likewise, registered organisations are accorded considerable rights by the Workplace Relations Act. Therefore, it is only right that those privileges and rights bear some responsibility. As a consequence of non-compliance with court and commission orders, officers and employees of those registered organisations would face civil penalty and would, in most circumstances, be disqualified from holding office in registered organisations. In essence, the bill says to rogue officers and employees, as well as employers, `If you want to demonstrate blatant disrespect for the very institutions that uphold the law and abuse your responsibilities, then you will lose your ability to enjoy those rights.'

The member for Throsby earlier on today in her contribution to this debate claimed that the bill is unnecessary because the Workplace Relations Act 1996 already contains prescriptive measures and penalties for the contravention of orders. While this is the case to some extent, the reality is that these penalties are rarely if ever applied. The Australian Industrial Relations Commission has consistently failed to refer such contraventions to the Federal Court. Disqualification of officers is nothing new to officers or employees of registered organisations. It can occur, if they have been convicted of a prescribed offence. The bill is merely seeking an extension to that disqualification process to any person who is penalised by the Federal Court for failing to comply with a court or commission ruling. This bill allows the minister or a prescribed person to seek orders that financial penalties be imposed with the further disincentive of disqualification to hold office.

One of the more interesting quotes has emanated from Justice Merkel of the Federal Court. He noted:

Maintenance of the rule of law in our society does not only require that parties are able to resort to courts to determine their disputes, it also requires that parties comply with the orders made by the courts in determining those disputes.

That was what Justice Merkel said on 12 May 2000 in relation to a dispute that came before him. Yet this process of disqualification or penalty is not an iron-fisted approach, as others may have the Australian people believe. Like any legal circumstance, leave may be sought from the court to enable the individual to continue to hold office or remain employed by the registered organisation. This will follow due process, as one would expect. This also means that the court has flexibility, should leave be granted, to hear an appeal. In that instance the court may order that the period set down for disqualification be reduced if it is proven to be warranted or indeed, as mentioned, the disqualification may be set aside. The member for Throsby went on to say that there are no widespread breaches of industrial law taking place, therefore there is no imperative to introduce this bill, while citing that only 1.4 per cent of all cases result in a contravention of commission rulings and court orders. But this does not give the full picture of the effect of those contraventions and of the intimidation that takes place and is often exerted on employers—and as a result on their employees—of contravening the commission's rulings.

This bill is not, as others may have us believe, anti-union. It is anti-ignorance but, more importantly, pro legal institution. The focus is on those organisations and the individuals within them who perpetuate the need to defy legally binding rulings and orders. I say to the honourable members opposite that the law should apply equally to all who breach our industrial laws. The member for Throsby also went on to refer to occupational health and safety breaches going unpunished. I have full sympathy for that argument, as long as they are real safety breaches that are taking place and not the frivolous ones that are often brought before an employer by union officials when they enter premises. One day they will turn a blind eye to particular safety breaches but the next day, depending on where the state of negotiations are or what else is on their agenda, they will crack down on those very same breaches.

The other question to ask is: if this bill is not passed, if the rule of law is not upheld, if contraventions of commission rulings and of Federal Court rulings and orders are to continue, then what is the alternative? Do we allow the rule of the jungle, as sometimes practiced by recalcitrant union officials, to take place? What is the alternative to this bill? Quite obviously, we could let the status quo keep going and see those contraventions mount up and pressure being exerted on employer organisations. We really have not heard from the other side as to how they would improve the rogue nature of members of registered organisations. They know who those rogue members are. Even some of the state premiers have had cause to write to union officials asking for the rogue members to be reined in. The classic one of course was the letter by the Premier of Victoria, Steve Bracks, to Doug Cameron, the union national secretary, to ask that Craig Johnston be reined in as a recalcitrant union official.

The opposition are happy for militant unionists to continue boasting about the stack of commission and court orders which they have ignored. They boast about having a drawer full of court orders which they have simply thumbed their nose at and walked away as if it is a very laughable matter, turning their back on the commission and defying its orders. A drawer full of orders which have been ignored—in what other jurisdiction would we allow such contempt to go unheeded? It is incumbent on this parliament to finally take action on behalf of employers and employees who want to do the legal thing by this nation. It is absurd to suggest the status quo. It is absurd because failing to address the clear ignorance showed to the Australian Industrial Relations Commission and the Federal Court would send the wrong message. It would send the message that society is happy for the rule of law to be disrespected and would see the wrong message sent to those thinking about ignoring court orders.

It is common in this place for the opposition to allege that everything that we introduce in the area of workplace relations is driven by industrial relations ideology and that we are `ideologues' to it. Sometimes that label could be warranted on both sides. I know that there are members on the other side of the House who would like to see industrial relations reform take place, and we can be accused from time to time of perhaps being a little bit ideological. With this bill, as a society founded on upholding the rule of law, it is unconscionable to expect the national legislature to overlook those who show absolutely no regard for one of the fundamental pillars of our society, the rule of law.

Actions by individuals from within a registered organisation are similarly addressed in the bill. It allows for the recovery of damages by a registered organisation against a person, being an official or employee, who contravenes the prescribed duties. This may be heard in a court and the court may order such damages be paid if it is satisfied that the organisation took reasonable steps to prevent the contravention.

The examples of disregard are too lengthy to list in detail. However, one in recent times that comes to mind is PBR Australia Pty Ltd and its dispute with the AMWU and CEPU. It is a standout example. In this case the commission clearly stated, through the handing down of a section 127 order, that there was to be no industrial action for three days and it directed the unions to advise their members that they were bound by the order and should cease industrial action. Section 127 of the Workplace Relations Act 1996 provides an unambiguous clause within the order. Section 127(5) expressly states:

A person or organisation to whom an order under subsection (1) is expressed to apply, must comply with the order.

In this instance, in the proceedings in the commission on 29 July 2003, only a matter of a couple of weeks ago, it was alleged that the unions disregarded the specific terms of the order and that large numbers of employees failed to report for work on 16 July. Such disregard cannot go unanswered, which is why this bill provides for these occurrences to be addressed by ministerial or a prescribed person's intervention.

Another case that came to light was the Craig Johnston case, which we saw reported in the Age of 22 July. The heading of the article by Paul Robinson was `Judge warns “run-through” unionists'. The article said:

County Court judge Joe Galluci said he wanted to hear why people who terrorised workers, damaged property and traumatised a pregnant woman should avoid jail ... The charges arise from an alleged `run-through' by members of the Australian Manufacturing Workers Union and the Electrical Trades Union in June 2001.

It has taken a full two years for that case to finally get to the courts. That run-through took place in 2001 at Johnson Tiles in Bayswater and Skilled Engineering in Box Hill. Both of those employers are on the fringes of my electorate of Deakin, and what took place on that day was a disgrace. It was an action that was condemned by the union movement, it was condemned by Premier Bracks and it was condemned by all law-abiding individuals in this country. Yet we have seen two years go by and we have seen attempts to remove Mr Johnston from his position being thwarted. We now find that Judge Galluci has said that the matters were criminal, not political. The judge said:

It's a pretty nasty thing in my view, an incursion into a workplace ... these people behaved in an extraordinarily violent manner.

It is these sorts of actions that need to be clamped down on. It is because of these sorts of actions that we need to give greater teeth to the Federal Court of Australia and to the Australian Industrial Relations Commission, so that they can make sure that those militant union officials do not get away with such things.

I should add that if an employer organisation defies a Federal Court ruling or an Industrial Relations Commission ruling they too should be held to account. But of course what we have seen—and I have seen it personally through my experience in the industrial relations field on a number of occasions—is that when we have the Industrial Relations Commission bringing down an order which is against an employer's behaviour we have the union jumping up and down if the employer does not comply, screaming that the commission's orders must be complied with, and justifiably so. But when that order goes against union officials we see the mob being taken out into the street and perhaps assembled at the foot of Nauru House or wherever the commission may be holding its hearings, in a demonstration or a show of support for the union's position of defiance regarding the court order. This has been the case as far back as I can remember—that orders that are defied by the union movement are argued in the streets, and public sympathy is supposed to be gained for the union's refusal to abide by the court order, whereas if an employer defied a court order the union would come out, decry the employer's actions—justifiably, as I say—and put pressure on that employer to reverse its position. How many union contraventions of court orders have ever been reversed as a result of a court order or as a result perhaps of the mob coming out and arguing that the union is wrong? I doubt that there have been any at all.

We have seen a number of other examples come to light, particularly with the Cole royal commission's findings. We had 12 volumes from that commission relating to the construction industry alone. Through that inquiry, we had 31 individuals referred for possible criminal prosecution and we had 392 instances of unlawful conduct by individuals, unions and employers. These are the sorts of contraventions that need to be stopped. We need to make sure that the rule of law reigns in this country and that we do not revert to some form of barbaric society—that we do not have an archaic anarchy of sorts emerging. At the moment, we are trying to help those societies, communities and nations around the world where that takes place; let's not let it happen here.

I ask the Australian Labor Party to support this bill. Let us not be beholden to the union movement. We know that the Australian Labor Party does have an obligation to them. The three major recalcitrants have been the CPU, the CFMEU and the AWMU. When you look at the list of ALP donors, those three unions alone make a contribution of $10.1 million. I have to tell you, if I had a tap that I could turn on at election time—a tap I could just turn on before I went into my election campaign—I too probably would be beholden. The ALP is beholden to them to the tune of $10.1 million. The ALP receives $1.5 million from the ASU alone, $3.9 million from the AMWU and $2.4 million from the CPU. Of course, members would be well aware of the union funds and the reason they give them. (Time expired)