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Tuesday, 26 June 2012
Page: 4536


Senator HUMPHRIES (Australian Capital Territory) (19:30): I rise to speak to the Fair Work (Registered Organisations) Amendment Bill 2012. I have to record a certain wry amusement at the nature of this legislation and the way in which it is coming forward to repair, or so it seems, some fairly obvious and serious flaws in the way in which the Fair Work Act and in particular Fair Work Australia have operated in the three or so years since the act was passed. I was a member of the Senate's Education, Employment and Workplace Relations Legislation Committee which examined the legislation for the Fair Work Act back in 2008. I remember the rhetoric that went around the creation of this new industrial regulator. I remember the hyperbole that came from the government in describing this as 'restoring balance' in the Australian workplace, as removing the iniquities of the previous Work Choices regime, how this was a new era and how, in particular, balance had been struck for the first time in rights and obligations between employers and employees.

It comes, no doubt, as a somewhat humiliating exercise for the Australian government to have to come forward with some fairly significant amendments to the structure of the Fair Work Act to deal with a series of inadequacies in that new structure it created only a few years ago, which were brought to light not by some parliamentary or auditors based process but by the practice of this act working out in the community, dealing with where the capacity of the act to test the circumstances of misbehaviour and malpractice within an industrial situation was found to be woefully inadequate. The investigation, such as it was, into the Health Services Union amply demonstrated for all Australians to see in a way which is not common for industrial processes. We do not generally have lots of public scrutiny of these issues but the investigation into the Health Services Union Australia amply demonstrated to every Australian that the new structure that the Australian government had set up, supposedly to create balance in Australia's industrial landscape, simply was not working.

Today we have an exercise in window-dressing going on, where the government brings forward a bill that is designed to require registered organisations—that is, essentially unions—to deal with disclosure of remuneration, pecuniary and financial interests; to increase penalties for malpractice or inappropriate activity or conduct under the Fair Work (Registered Organisations) Act; to enhance investigative powers available to Fair Work Australia; and to require some education of officials of registered organisations about governance and accountability mechanisms.

Why was it necessary to come back now and do all of this? Why was it not in the original legislation? The answer is that it was never intended to be there. It was never intended that an industrial organisation should be subject to the kind of scrutiny, which we now realise needs to be there, because it was the government's intention at the time that unions should be subject to considerably less scrutiny than were employer organisations or companies that were on the other side of that industrial ledger. It has only been the spectacular failure of Fair Work Australia to properly and adequately bring to light the inappropriate practices in the Health Services Union that has led to the point where the government has had to act to deal with this completely unsatisfactory situation.

I recall the government took great delight in ensuring that none of the amendments proposed by the coalition to the Fair Work Act was to be accepted. Even though there were quite worthy amendments brought forward by the coalition in the course of that debate, they were all rejected in favour of very similar amendments moved by members of the crossbench in the course of that debate, because the government did not want anything the coalition had to say about this legislation to be built into the legislation.

The result is that we come back to the legislation today because it was flawed. It was not properly balanced to deal with the practices at work in some unions in Australia. No doubt, the passing of the act in the first place created the impression in the eyes of some unions that accountability was now off the agenda, that it was perfectly possible to engage in the sorts of behaviour we have seen from the Health Services Union. Because this government was putting the watchdog back on a short leash, this government did not particularly want to hold its partners, the unions, to account and was prepared to compromise the effectiveness and the coverage of the law to achieve that objective. We now are able to repent at our leisure on that very flawed approach.

Even today, as the Senate comes to debate and vote on this extremely important legislation, we are subject to a time limit. There are speakers on the list to speak on this legislation who will not get to have their say because the government has seen fit to guillotine this legislation. How ironic that the Labor Party in opposition complained bitterly about the many hours set aside by the Howard government to debate Work Choices and talked about the travesty of democracy it perpetrated by limiting debate, and now comes to this place and attempts to use that very same guillotine to ensure that debate to fix its own mistakes in its own legislation has limited time. The irony is rich and delicious.

We are told that there needed to be an expedited inquiry into this legislation. The coalition sought referral of the bill to a committee as soon as it was tabled in the House of Representatives on 31 May. The committee was expected to review the bill in five working days. That is just appalling. We were told that the expedited inquiry and the sausage-factory approach to this was necessary because this was a budget bill or a key appropriation. That is strange because it does not appear to have any particular budget implications, not for government at least; it probably does for registered organisations. Indeed, in that abbreviated inquiry, which was ultimately conducted by the Senate, when Senator Abetz asked the department about the nature of this legislation and whether it was a budget bill or a key appropriation, the public servant concerned said:

It is certainly not a budget related bill.

Where is the attempt here to even get the story straight? A number of witnesses who might have been called to address these issues were not available because of the short time in which the committee had to address these issues. Quite rightly, the coalition senators who took part in the inquiry made very trenchant and apposite comments about the shortcomings in the legislation, because of the way in which it was rammed through that committee—and is being rammed through the parliament tonight with limited debate.

We on this side of the chamber support a greater measure of accountability. We support greater disclosure of issues such as the remuneration and financial interests of union officials. We support Fair Work Australia having greater powers to investigate breaches of the legislation. Even now, even in the face of the obvious evidence of a complete failure of process with respect to the HSU, we still find the government dragging its feet in coming to a point where this is dealt with properly. Still, we do not find a sense of parity in the accountability mechanisms required for registered organisations that legislation generally requires of companies and corporate bodies, which are almost invariably the employers of the members of those registered organisations. We still find that the penalties provided in the legislation are weak compared with comparable offences elsewhere in Australian law, certainly when compared with the law with respect to corporations. We find that the rules are still not well defined. The accountability expected of significant officers in organisations is less than that required of managers and directors of corporations.

We still cannot find in the legislation clear obligations on Fair Work Australia to cooperate with the police. Who would have thought in this day and age that Australia's parliament needs to legislate to require that a federal government organisation responsible for making sure that the laws of the land are obeyed cooperates with other organisations in the community charged with the task of enforcing the laws of the land. Why should we have to come back here and require that Fair Work Australia cooperates with the police in investigations into misconduct on the part of, among other things, members of registered organisations? We have to do it because it is not taking place now. Even today, Fair Work Australia continues to refuse to work with police in states such as New South Wales and Victoria, to properly bring to conclusion the investigation into the nefarious activities of certain officers in the Health Services Union. That is absolutely reprehensible. And we are asked again to support a piecemeal approach to this issue when stronger legislation not only is necessary but would be acknowledged by most Australians as being absolutely essential, given the appalling conduct of Fair Work Australia in bringing the misconduct of officers in the HSU to account.

I am concerned about this matter because, I am sure like every other senator in this place, there are members of the Health Services Union who live and work in my electorate, in the Australian Capital Territory, and I am concerned about the lack of protection for those members by virtue of the fact that the government have not got the guts to face up to questions of accountability of the affairs of unions, including unions in the ACT. I am relieved that some of the scandal which has touched other areas of Australia with respect to unions such as the HSU has not yet, to the same extent at least, reached unions in the ACT, but I do hold fears for the future if mechanisms of accountability are not properly built into the laws affecting those unions.

I note that the situation of union leaders in the ACT is probably worthy of some sober reflection. For example, the head of Unions ACT, Kim Sattler, was accused and, I think it could be said, was found to have played a key role in facilitating the protest outside the Lobby restaurant on Australia Day this year. I think it is well established that Ms Sattler connived with a person then in the office of the Prime Minister to incite a crowd to descend on the Lobby restaurant. I gather that the executive of UnionsACT subsequently asked Ms Sattler whether or not her actions brought UnionsACT into disrepute. I am not aware of any particularly serious sanctions being applied against Ms Sattler as a result of that. I would not really expect there to be any particularly serious sanctions against Ms Sattler because, in trying to discredit the Leader of the Opposition in some way, she was no doubt doing the bidding of the trade union movement and of the Labor government. Those sorts of events and that sort of behaviour on the part of high-ranking public officials in Australian unions does underline to all Australians the need for much greater levels of accountability.

The Health Services Union is well represented among low-paid hospital staff in the ACT. I am advised there are over 5,000 workers working for the ACT government's Health Directorate, principally in hospitals and health facilities around the territory. Almost 1,000 of those are at Calvary Health Care. I do not know how many of them belong to the Health Services Union—at least I do not know how many belonged as of the last annual report. It would not surprise me if there were a few less who belonged to the union as a result of the outrageous things that the union leadership has done.

It is important that we establish much stronger ground rules for the operation of unions in Australia. This is not to tar all the unions with the behaviour of bodies like the HSU, but it is deeply concerning that we should find union leaders able to behave in the outrageous way which the long-belated and late-arriving Fair Work Australia report into the Health Services Union described—behaviour which clearly reflected a culture where such union leadership did not expect to be answerable to anybody, much less its membership, for the sorts of things it did. That situation must end. We must not allow that kind of 'operating above the law' mentality to persist in organisations with such enormous power in our community and with so much money at their disposal—money from members who often have, apparently, very little idea of what is going on with the hard-earned dollars they contribute to the union that represents them.

It is unfortunate that tonight the government has brought forward only a tepid response to a very serious problem. It is extraordinary that these issues were not dealt with in a more forthright fashion by the government at the time of the original Fair Work Australia legislation, but at that time it was in no mood to be brooking any reasonable criticism of the way in which this structure was set up. I do not think that this will be the last time that we will have to come back to fix the problems in this regime. The fact that the government has been shamed into doing something, albeit inadequate, is a sad indictment of its commitment to a fair workplace where the rights of all are clearly defined and no particular players have unreasonable power over other players, and particularly over the membership of organisations that they might belong to.

I am concerned that these amendments come too late to effectively put a backbone back into Fair Work Australia when it comes to investigations against the Health Services Union. I am deeply concerned that that investigation has been dragged out to such an enormous extent that it has been charac¬≠terised by a failure to cooperate with police, that there has been an inability to prepare a brief of evidence to the Commonwealth Director of Public Prosecutions—a matter which this bill does not appear to fix—and that there appears to be some conflict of interest problems with the background of many staff in Fair Work Australia, because of their very strong associations as former leaders of unions. The imbalance in the organisation is a very serious problem. So against that very sober and— (Time expired)