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Fair Work (Registered Organisations) Amendment Bill 2012
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Cash, Sen Michaelia
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- Start of Business
- STATEMENT BY THE PRESIDENT
- Superannuation Legislation Amendment (Stronger Super) Bill 2012, Superannuation Supervisory Levy Imposition Amendment Bill 2012
- Fair Work (Registered Organisations) Amendment Bill 2012
- QUESTIONS WITHOUT NOTICE
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- MINISTERIAL STATEMENTS
- AUDITOR-GENERAL'S REPORTS
- Fair Work (Registered Organisations) Amendment Bill 2012
- Social Security and Other Legislation Amendment (2012 Budget and Other Measures) Bill 2012
- Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012
- Farrell, Sen Don
- Same-Sex Marriage
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Tuesday, 26 June 2012
Senator CASH (Western Australia) (16:58): I am pleased to contribute to the debate on the Fair Work (Registered Organisations) Amendment Bill 2012 which, if agreed to by the Senate, will amend the Fair Work (Registered Organisations) Act 2009, the principal act for the purposes of the proposed amendments. The government claimed that the purpose of the bill is to increase the financial and accountability obligations of registered organisations and their office holders, to strengthen the investigative powers of Fair Work Australia and to enhance remedies under the Fair Work (Registered Organisations) Act. The minister in his second reading speech suggests one reason for the introduction of the bill:
In recent weeks and months conduct by a small number of officials in some parts of one organisation has dented public confidence in all registered organisations in this country.
It is patently obvious to anybody that in making this point the minister was referring to what has become known as the criminal activities of some officials or former officials of the Health Services Union. However, for the minister to refer to these activities as having no more than 'dented public confidence' is a serious indictment of the judgment and, indeed, the credibility of the minister himself. Rather than using the banal words 'dented public confidence' which the minister has no doubt deliberately used to try to trivialise the actions of some of the HSU officials, it would have been more appropriate for the minister to say that the actions of these HSU officials in robbing some of the lowest paid workers in the health system has not just dented but actually shattered and, indeed, crushed the confidence that these members had in their union and the officials.
Many of the low-paid workers of the HSU have been devastated and traumatised by the factual evidence that has been published in the Fair Work Australia report on the activities of the HSU and, in particular, its former secretary, Craig Thomson, the current member for Dobell, and its former president, Mr Michael Williamson, who is a former President of the Australian Labor Party. The real reason that this bill has been introduced is that the Labor Party and the federal Labor government, which have been protecting both Mr Thomson and Mr Williamson for a long time, have been caught out by the publication of the Fair Work Australia report on the HSU.
The Labor Party is now desperate to be seen to be doing something about this disgraceful pillaging of funds from the low-paid workers of the HSU who both Mr Thomson and Mr Williamson were allegedly meant to be representing. Both Mr Thomson and Mr Williamson are classic examples of the good old tried and tested Labor maxim, 'Nothing is too good for the representative of the worker' and, in this case, even if it means robbing those workers blind so that they can satiate their appetite for reckless spending.
The question that needs to be addressed in this debate, in particular by those low-paid members of the HSU who have been exploited by those who are meant to represent them, is: does the substance of the bill achieve the objectives the Labor Party claimed it sought to address? Has the Labor Party really taken action to protect workers and make union officials accountable for abuses of them, or is this just another Labor cover-up? In asking this question, it is interesting to note the comments made by the minister in his second reading speech and then contrast the minister's general summary of the bill with the actual amendments that we have laid on the table before us today and that are proposed in relation to the Fair Work (Registered Organisations) Act.
For example, the minister suggests that in addition to improvements in the financial management and disclosure regime, the bill proposes to increase penalties. The minister goes on to say that:
The current maximum civil penalties are $11,000 for an organisation and $2,200 for an individual.
The minister says that the bill:
… proposes to triple the maximum civil penalties to a maximum of $33,000 for an organisation and $6,600 for an individual.
The minister further says:
This represents a significant increase in penalties to reflect the seriousness with which this government, and registered organisations, take compliance with workplace relations law.
However, what the minister has conveniently failed to tell the parliament and failed to tell the people of Australia is that these increases remain civil penalties. Unlike the penalties found in the Corporations Act 2001, it is not possible to imprison a person should they default in the payment of a fine or other pecuniary penalty imposed under the Fair Work (Registered Organisations) Act. Quite frankly, it is not a bad cop-out if you are trying to look tough in the eyes of the public and in the eyes of those poor old members of the HSU who were robbed blind by the union officials, and pretending that you are making radical changes when in reality the government clearly knows it is not threatening its union mates with imprisonment, unlike the laws that cover the corporate sector, which allow for imprisonment when a fine or other pecuniary penalty imposed under the Corporations Act is not paid.
Let us look at the amazing protection provision in the Fair Work (Registered Organisations) Act at section 351. It states:
No imprisonment in default.
In spite of the provisions of any other law, a court may not direct that a person is to serve a sentence of imprisonment in default of the payment of a fine or other pecuniary penalty imposed under this Act.
Let us now contrast that with the provisions of the Corporations Act 2001. In looking at the effect of the provisions of this bill, I took the opportunity of comparing and contrasting the penalty provisions in the Fair Work (Registered Organisations) Act and the Corporations Act. Interestingly, the Corporations Act comes out being a far tougher act when it comes to imposing penalties. Schedule 3 of the Corporations Act lists 346 separate items which attract either fines and/or imprisonment or, in many cases, both, with some of the prison terms being for a period of up to five years and fines of up to $220,000. It is not hard to see the difference between a maximum fine of up to $33,000 under the bill that we are currently debating for the union movement and a fine of up to $220,000 and up to five years' imprisonment for the corporate sector. It is very, very obvious to see why the Labor Party do not want its union mates subjected to the same accountability provisions that the corporate sector are subjected to. It may be convenient for the Labor Party to protect union officials and legislate to provide them with special treatment, effectively shielding them from the rigorous requirements imposed on the corporate sector, but the reality for the Labor Party and the unions is this: today, many of the national unions are huge business conglomerates and they should be subject to the accountability and transparency provisions of the Corporations Act 2001.
Given that section 351 of the Fair Work (Registered Organisations) Act operates as a statutory shelter from imprisonment in default of the payment of a fine or other pecuniary interest imposed under this act, it would be interesting to know from the minister the public policy reasons that underpin why such a statutory shelter exists and why similar offences should only attract a civil penalty under the Fair Work (Registered Organisations) Act, which is modified by statute to prevent imprisonment, yet under the Corporations Act an offender can be both fined and imprisoned for a similar offence. Remember this: the rationale given by the Labor Party for this legislation is that they want to toughen up the accountability provisions in relation to unions. However, when we compare and contrast the accountability provisions that we are discussing today under this legislation for unions with the accountability provisions in the Corporations Act that the corporate sector are subject to, this supposedly tough legislation, falls seriously short.
Section 184 of the Corporations Act deals with good faith, the use of position and the use of information, and consequential criminal offences—that is, five years imprisonment—and has much to commend it as a provision, and should have been included by the Labor Party in the amendments that we are debating today, if the Labor Party were serious about toughening up the laws in relation to accountability for its union mates. But what do we have? We have an absolute failure to include that provision. So the opposition have had to put on the table, in the interests of true accountability, a section 184 amendment. The rationale behind this amendment is the value of such a provision in the Fair Work (Registered Organisations) Act, especially given the performances, or rather lack of, of Mr Thomson and Mr Williamson, as clearly set out in the report handed down by Fair Work Australia. Good legislative practice would dictate that if the minister were dinkum when he said:
In recent weeks and months, conduct by a small number of officials in some parts of one organisation has dented public confidence in all registered organisations in this country—
and I do not disagree with the minister's remarks in that sense; however, I think they are quite banal and do not go anywhere near what has actually occurred—then the minister would have no trouble at all in accepting the section 184 amendment proposed by the opposition. Why is it that when you contrast the proposed amendments to the Fair Work (Registered Organisations) Act from the Labor Party with the penalties under the Corporations Act, it is patently obvious that the government, in its dying days, are yet again favouring its union mates by requiring a lesser standard of compliance and transparency compared with the obligations placed on the corporate sector? The fact that Labor blatantly favour its union mates is also highlighted by the extended dates on which many of the provisions of this bill will come into effect.
Another feature of the bill is clause 2, which deals with the commencement date of the various amendments to the principal act. It is important to note that the government have divided the bill into two parts. Part 1 is to commence on royal assent—in other words, it is to commence immediately; and part 2, which will come into effect on proclamation or no later than 12 months after the date of royal assent. Examples of matters included in part 2, which are to be delayed in coming into effect—possibly up to 12 months—include the following: proposed section 142A, which relates to model rules for policies relating to expenditure; proposed section 148A, which relates to rules to require disclosure of remuneration paid to officers; proposed section 148C, which relates to rules to require disclosure of payments made by an organisation or a branch; proposed subsections 148D(4) and (5), which relate to providing for alterations of the organisation's rules; proposed section 148E, which relates to the disclosure period; proposed section 148F, which relates to model rules relating to disclosure; and proposed section 154D, which relates to rules to require officers to undertake approved training.
I am sure that as soon as the bill passes the Senate, the government will stand in this place and crow that they have fixed the rogue union official problem. But that will be an absolute furphy, because the reality is that an artificial 12-month delay has been built into the bill quite deliberately by the government, during which time many of the important provisions, which are allegedly going to solve the Mr Thomson and Mr Williamson problem, will still not have changed. However, if you want to talk about accountability, it is interesting to note that the directors of a newly registered company are not given a free ride for 12 months, a start-up period of 12 months, in which to comply with the Corporations Act. But, then again, the Labor government have shown how they detest the corporate sector and are ever ready to help out their union mates when they have blatantly breached the trust of the members of the union movement. The government's announcement of the legislation that we are debating here today came, lo and behold, 10 days after the Leader of the Opposition announced the coalition's better plan for accountability and transparency for registered organisations. If I were a betting person, I would put money on the fact that, if the coalition had not made its hard policy announcement, the Labor Party would have quite conveniently and deliberately kept its head in the sand when it came to the accountability of its union mates. Labor is and always has been beholden and indebted to the union movement—you just have to look at the biographies of those on the other side of the Senate to understand why this is so. When you contrast the details of the bill that we are debating today with the coalition's proposal for accountability, it is patently obvious that Labor's plan is deliberately lacking on so many fronts.
Considering it is nothing more and nothing less than a stunt, why have Labor even bothered to bring this legislation into the Senate? It does not provide any worthwhile increase in accountability for unions at all. If the Labor Party were genuine about increased accountability for the unions, then they would come to this place and quite openly adopt the coalition's proposed plan. The coalition's plan will make sure that members of registered organisations, mainly small businesses and workers, can be assured that the hard-earned money that they pay over to the union movement is being used for the right things. We do not want to see union officials getting away with spending the hard-earned money of union members on elaborate dinners for themselves or on using escorts. That is an absolute disgrace and a blatant abuse of union members' funds.
Just as there are rules to ensure that companies and boards of directors do the right thing, there is no reason, quite frankly, that those same rules should not apply to registered organisations and their officers. If there is a reason, please stand up in this place and defend the actions of Mr Thomson and Mr Williamson. I do not believe that there is one member in this place who is able to do that.
Although the overwhelming majority of registered organisations do the right thing, the coalition will ensure that they are strongly deterred from doing the wrong thing at all times and that, where inappropriate action occurs—as we have clearly seen with the HSU—these registered organisations can be investigated by a genuinely independent regulator that has teeth. That is true accountability for unions, and the Labor Party is clearly unable to provide true accountability for unions—only a coalition can do that. Unlike Labor, which is driven by the politics of envy and good old-fashioned class warfare, we in the coalition will be the ones to ensure that workers who pay their union dues in good faith are not ripped off by shonky union officials and that the affairs of these unions, which are often massive business enterprises, are put on the same footing as the corporate sector when it comes to accountability and transparency.
The fact of the matter is: how can the people of Australia take this legislation and Labor seriously, when Greg Combet is a former head of the ACTU, Bill Shorten sat on the ACTU at the same time that Craig Thomson sat on the ACTU? How can the people of Australia take Labor and this legislation seriously, when the events that have triggered this proposed legislation happened right under Labor's noses while Mr Thomson was a member of parliament and Michael Williamson was the president of the ALP? How can you take Labor seriously when they still rely on the tainted vote of Mr Thomson?