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Education and Employment Legislation Committee
25/09/2019

BRAKEY, Mr Andrew, Executive Director, Australian Nursing and Midwifery Federation, Tasmanian Branch

GIDDINGS, Ms Lara, Chief Executive Officer, Australian Medical Association Tasmania

SHEPHERD, Ms Emily, Branch Secretary, Australian Nursing and Midwifery Federation, Tasmanian Branch

Committee met at 08:30

CHAIR ( Senator McGrath ): I declare open this hearing of the Senate Education and Employment Legislation Committee's inquiry into the Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019. This is a public hearing and a Hansard transcript of the proceedings is being made. The hearing is also being broadcast via the Australian Parliament House website.

Before the committee starts taking evidence, I remind all witnesses that, in giving evidence to the committee, they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee, and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee.

The committee generally prefers evidence to be given in public but, under the Senate's resolutions, witnesses have the right to request to be heard in private session. If a witness objects to answering a question, the witness should state the ground upon which the objection is taken and the committee will determine whether it will insist on an answer having regard to the ground on which it is claimed. If the committee determines to insist on an answer, a witness may request that the answer be given in camera. Such a request may of course also be made at any other time. The committee has resolved that answers to questions taken on notice should be provided to the committee by Friday 4 October 2019.

I now welcome representatives from the Australian Nursing and Midwifery Federation, Tasmanian Branch; the Australian Medical Association Tasmania; and the Australian Salaried Medical Officers Federation, Tasmanian Branch. I understand that information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. Do you have any comments to make on the capacity in which you appear?

Ms Giddings : I am the CEO of AMA Tasmania and the Executive Director of the Australian Salaried Medical Officers Federation, Tasmanian Branch.

CHAIR: I now invite you to make a short—and I emphasise 'short'—opening statement and, at the conclusion of your remarks, I will invite members of the committee to ask questions.

Ms Giddings : Thank you for the opportunity to address the committee on this bill that's before the Senate. It is a bill which ASMOF Tasmania Branch have real concerns about in terms of the impact on us as a union body representing medical officers. We are only a very small union body—in fact, we have around 336 members of our union here in Tasmania—and we have an annual budget of around $3,300. So we are no big fish with regard to the work of a union, but we are a very important union in supporting our doctors who work within the public health system.

By way of background, you might know that I was a former member of parliament. I have never been a union official in my career, but now, taking on this role, I have had my eyes opened as to what is involved for a union body, particularly one as small as this one. I am amazed at the amount of red-tape bureaucracy that currently exists for such a small union body in terms of the requirements of regulation and reporting on absolutely every step you seem to take—the reporting of course going to the ROC, the Registered Organisations Commission.

Prior to me becoming the Executive Director of ASMOF Tasmania Branch, last year we almost ended up in breach of ROC regulations and had to rectify and remedy a situation fairly quickly. That happened purely because of the amount of work and obligations that the former person had and the complexity of the need to cross every 't' and dot every 'i' when it comes to the regulations surrounding ROC and how that impacts on a union such as ASMOF. So you can imagine just how thrilled we are at the thought that there's going to be further regulation and further red tape that's going to cause our small branch even more headaches along the way.

The reality is that a budget of $3,300 per annum doesn't even cover the cost of my role as executive director. We have a conjoint agreement with AMA Tasmania to provide these services. There is no way—with the amount of time that I have to put into providing individual support to doctors, attending relevant meetings for the union and, of course, negotiating with government, on behalf of doctors, enterprise agreements and the like—that we would be able to do that for that amount of money.

The board that governs ASMOF is a volunteer board. It's run by doctors. They, as you would know, are very busy people who are volunteering and giving up their time to help this union operate. We are already finding that, through the red tape obligations of the current ROC, it is getting harder to actually get doctors to nominate for these positions.

We've had an instance where we had a doctor on the board of ASMOF who had completed all of the training that was required to take on that position. He then stood down from the board and was happy to come back onto the board in a different role, but when he was told he would have to repeat exactly the same training all over again, he said: 'Forget it. I don't have the time to be able to do that. If the ROC cannot recognise my past training and experience, I'm sorry, but I'm just not doing that again.' So it's already difficult for a volunteer board to recruit people. Putting even more obligations and threats against them for doing what they're trying to do, which is the best job possible, makes it more difficult.

We're also very concerned about the impact that this legislation will have in that it will allow third parties to effectively cause political pain. I don't think the power that's going to be allowable under this legislation for third parties to interfere in the business of the union itself will necessarily be used in a proper way; it could be used in an improper way. If the doctors end up taking industrial action of some sort and a third party decides that that is impacting on their business, for instance, they can go in and stir up problems for the union even if there ends up being no foundation to those allegations. What it will do is divert the necessary and few resources that we have into trying to support the union against any attack or allegation from a third party that may or may not be true.

We believe that there are already adequate mechanisms within the current legislation to ensure that we're accountable, that we do the right thing by our union members, that we do not misappropriate union funds and that there is a proper election process. In fact, until I took on this role, I didn't understand that the election process of ASMOF would require the involvement of the Australian Electoral Commission. That in itself—knowing that we failed to fill a position on our board recently—is quite a convoluted process to have to go through, and we now have to go out again to try to get nominations for our board.

I believe that there are already enough checks and balances in the system to give the Australian people and, more importantly, our union members comfort that their union is operating in their best interests and is, in fact, doing everything correctly. So we don't see that there is any role or need for this legislation. We're concerned with the powers that it provides to the minister, we're very concerned about the power it provides to third parties and we think that it could have very undemocratic outcomes. It appears in many respects to be a bill aimed, in the media at least, largely at one individual in one union. We just do not think that you should be passing legislation or law that affects everybody because of concerns with one individual. In our view, there are already sufficient legislative requirements in place that can deal with those sorts of people and behaviours. So our submission to you today is that we are concerned about this legislation, and we don't think it should be supported, on various grounds—and those are covered in our submission. We also of course support the much more in-depth submission that has been put forward by the ACTU, which goes into a great deal of detail.

CHAIR: Thank you.

Ms Shepherd : The Australian Nursing and Midwifery Federation, Tasmanian Branch, welcomes the opportunity to provide an opening statement in support of our written submission. As you would be aware, the ANMF is the largest professional and industrial body covering nurses, midwives and care staff in Australia—as I am sure you have heard from other branches around Australia—covering over 280,000 members. In Tasmania, we have over 7,500 nurses, midwives and careworkers across the state. Our members are responsible for providing care to the most vulnerable in our community. We provide care for individuals across the lifespan—from premature infants in the NICU at the Royal Hobart Hospital to elderly community members in aged-care homes in Devonport.

Nurses and midwives are advocates for their patients and clients throughout their careers—and this is not just in the clinical setting and ensuring that their patients' needs are met but also in instances where a health system or a provider does not provide the adequate resources to ensure that adequate care provision can take place. In instances where our members feel that adequate resources are not being provided and they feel they have exhausted their avenues within their organisations to access further assistance, they will turn to the ANMF as an avenue of external help to advocate and, if required, campaign for safe workplace for themselves, for their professions and also for the quality of care of their patients. In a hospital, our members work together as part of a health ecosystem to see patients move through that system as efficiently as possible. But they also have competing priorities with regard to access to a finite amount of resourcing.

The ANMF is concerned that the passing of this bill sees the potential for deregistration of the ANMF Tasmanian Branch purely for carrying out its advocacy work for the nurses, midwives and careworkers in Tasmania and indeed across Australia. ANMF members are the advocates for their patients and clients, and, at times, this extends beyond the traditional in ensuring that their health needs are met. It extends to the community as potential patients and future clients of our members to ensure that, when we are the ones who are in the vulnerable position in a hospital, an aged-care bed or sitting next to the bed of our own child while a nurse delivers care, we as a community have access to appropriate resources to ensure that we and our loved ones are safe.

ANMF holds concerns that, if this bill is passed, it will limit the ability of our organisation to provide support to our members to advocate for their patients and clients and that this will eventually lead to poorer outcomes and degradation of both private and public health services in our state. The union members elect their representatives. If that representative did something that is illegal, criminal charges should be brought. If proven, these charges will make the individual unfit to hold office. There is no need for a secondary way to remove people that are not liked for whatever reason. The real risk here is the potential for an abuse of power to remove people, including nurses and midwives, who are actively advocating on behalf of themselves, patients, clients and residents for an improved health system for all in Tasmania.

CHAIR: Thank you. Before we go to questions, I advise that there will be some photos taken from the back of the room. I will hand over to Senator Pratt.

Senator PRATT: I thank all of you for your submissions today. I want to commence by asking both of you about the public interest applications to deregister a union or a body under this bill and the context, if you like, of the political attack that that could leave you open to. In the submission from Dr Stuart Day, as the president of ASMOF, I can see that nurses and doctors operate in the environment where both their professional skills and their care for patients intersect with their own workplace rights. Is it possible that it could be state governments hospital boards, rival medical associations?

It does seem that almost anyone with a rival interest or different agenda in making a judgement about any number of different issues could seek to make an application under this bill.

Ms Shepherd : Thank you for the question. Yes, absolutely the ANMF Tasmanian branch are incredibly concerned about the ability of any person with sufficient interest to make application under this particular bill in relation to deregistration of a union. In our submission, we provide an example in relation to the Launceston General Hospital, where industrial action was undertaken by our group of members in the emergency department to campaign for additional beds and capacity. That involved one of our delegates speaking to a national television program in relation to a particular clinical incident. Whilst our delegate didn't actually talk in relation to the specific clinical incident, obviously the television program highlighted that incident with respect to a coroner's report that had recently been published by the coroner in Tasmania.

Certainly recommendations in the coroner's report highlighted the significant issues that our members have been campaigning about, and that is the lack of capacity within the emergency department, the bed block within the Launceston General Hospital and the onerous wait times for patients waiting in patient beds. The way that program conveyed that message and the story in relation to the coroner's report, there were members within the hospital in other health professions that may not have been in complete support of that particular program.

Obviously, that does leave us open under this proposed legislation for a person with a sufficient interest to make an application in relation to deregistration of the ANMF Tasmanian branch. We have real concerns about that when, ultimately, the entire campaign was really about—and continues to be about—ensuring safe and quality patient care of our community members and the recommendations of the coroner's report and also the Auditor-General's report with respect to increasing capacity supporting the intent of our campaign as well.

Senator PRATT: Was that unprotected industrial action at the time or protected industrial action?

Ms Shepherd : The action that was taken was undertaken by our members within the public sector and it was unprotected industrial action at the time.

Senator PRATT: So it seems it is certainly not an unlikely outcome that a state government or a hospital board—or even doctors—might say to nurses, 'We're going to take a public interest application here to contain your industrial action and possibly deregister the union.'

Ms Shepherd : Absolutely. It certainly is in the realm of possibility, and it doesn't even need to be a doctor or another health professional; it's 'a person with a sufficient interest'. That is why the bill is just so concerning. Anyone with a sufficient interest has the opportunity to make an application for deregistration of a union.

Ms Giddings : I might say that, from a doctor's perspective, it's very rare to take industrial action. You can understand why, but you would say that it's not out of the realm of possibility that they may at some point want to take industrial action and, if that were to occur, you would expect it to be a very difficult environment and a high-conflict environment in which that would happen. Therefore, this would certainly be a provision that is very likely to be used by another authority, whether it be at the current THS, Tasmanian health system, that may choose to use that clause to attack the union and try to bring down industrial action. So it is not out of the realm of possibly that that could happen.

Another thing that could happen—and that I am more aware of in a sense through problems that the doctors have with AHPRA and the medical board—is vexatious complaints put in against doctors and pursued. In some instances, these have actually seen doctors lose registration. So that would also be of real concern to us in relation to the definition of what is 'sufficient interest'. If we had a disgruntled doctor, for instance, who left the union and had a vexatious reason to try to undermine the union, could they develop a case that's strong enough to say that they have sufficient interest to disrupt the business of the union?

We don’t think that this is a necessary law to put in place at all. It's certainly not something—as far as we are aware—that other not-for-profits or the corporate sector or the public sector have to deal with. So why is it that unions are being treated differently?

Senator SHELDON: I have a question for Ms Giddings and maybe for the other people that are giving evidence this morning also. Thank you for joining us this morning as well. Thank you for your evidence so far. You would be aware that industrial action could include wearing badges. It could include communicating a message to a patient, regardless of how politely that might be done or how briefly that might be done. It could be wearing a piece of clothing. It could be wearing a bandana. It could be wearing something on your sleeve identifying a public interest dispute. All those matters could be seen as industrial action as well. You could be prosecuted for that. Are you aware also that, in those circumstances—if a prosecution were pursued, and you were taking unprotected industrial action—a single item could be used to frustrate the union and have resources allocated to the protection or defence of that particular action? I might just ask you to make any comments about that.

Ms Giddings : I'm not sure that my doctors would understand that to the extent that it could be as simple as a badge on a lapel. I suspect there would be some who would want to do that if the industrial need was there to support colleagues on an issue. So it's quite a frightening aspect of the legislation that this could in fact be due to just wearing a badge or a T-shirt or the like. So to me that just strengthens the reasons this bill should not proceed.

Senator SHELDON: What's your organisation's annual budget and surplus? As you find those figures or estimations, I want to ask this. There has been a lot of evidence that there are assertions by some employer groups, largely unregistered, describing the union movement as flush with money, saying that rivers of gold are flowing around and that there are unlimited resources to carry out campaigns and to represent both unionised and non-unionised workers in the public interest. What's your response to that?

Ms Giddings : My union budget for ASMOF is $3,300 and it doesn't even cover the cost of running the union. There's no money for campaigns.

CHAIR: I might just go to the coalition now. Senator O'Sullivan.

Senator O'SULLIVAN: Thank you everyone for attending today. Ms Giddings, you spoke about the increase in red tape. Can you explain that? How do you see that this particular bill is going to increase the burden of red tape over what already exists?

Ms Giddings : I started this job in March of this year and I have been amazed at the complexity of the position I hold as executive director of ASMOF in Tasmania—and the threats that sit over our heads every single day. In fact, if it weren't for the federal body of ASMOF and a particular officer who assists our branch, I'm sure I would already be in breach of the Registered Organisations Commission legislation, particularly as I'm brand new to this area and I'm trying to get my head around all of the reporting requirements. It is onerous already. It is difficult. When I am extremely part time, in terms of what I'm paid to do for the ASMOF branch, finding the time to understand exactly what ROC requires of me is very difficult. And then you get threatening letters as well, saying, 'You haven't put something in on time; where is it?' and you have to get onto some internet site and make sure that you've uploaded all the correct information and the rest of it.

It is a very difficult process, and we don't have somebody that we can employ. In fact, I tried bringing somebody in purely to look after the regulatory compliance that we already have to do. That person lasted three months, or four months maybe, and has gone already. So all of that compliance burden is now back on my shoulders, with the limited time and resources that I have. Seeing legislation like this which opens up the union to more scrutiny, opens up the union to more threats and opens up the union to have to consider who's going to potentially complain against us now using this new power that they have just compounds the issues that we've got with the Registered Organisations Commission. It's not fun I can tell you. It's difficult and stressful, I might say.

Senator O'SULLIVAN: You have explained what you're dealing with now. What are the extra administrative burdens that are going to be placed on you with this legislation?

Ms Giddings : As I said, I believe it's a fact that you will have the opportunity for third parties to involve themselves in the business of the union. It adds to the stress. It adds to the burden of what we have to do and what we have to consider. If we have a vexatious doctor out there, are they going to use this legislation? Will we have to seek legal advice and get others involved to support us through this process? If we do breach the current legislation, are we going to have the minister put a complaint in to us and look at suspending the branch and saying to ASMOF, 'You've got to run Tasmania's branch, because they're incapable of operating it themselves, because they didn't get a document in on time'? That's a reality of what this legislation is doing. This is absolutely against the democratic process of an organisation which is democratically elected by its members. To have the threat of a federal minister deciding that, in the politics of the day, it in fact works for them to look heavy-handed on unions and to step in and take over, of course it's going to cause us issues and of course it feels like the heavy burden of regulation has got even heavier above us.

Senator O'SULLIVAN: The Attorney-General's Department have told us that there are protections against frivolous and vexatious claims, including the Federal Court's existing powers to dismiss vexatious claims and order costs. So if a sufficient-interest party was to bring forward a frivolous claim at their own cost, your cost would be borne by them if it was decided by the court that it was vexatious.

Ms Giddings : Fantastic. Wonderful. But that's the end of the process. You've got to start on day one when that frivolous complaint is made. That person comes to you, or the minister gets involved—whatever it may be—and that's when the problem starts for us. We then have to go and seek legal advice. We have to expend money on legal advice. We expend our own time, resources, energy, stress and all the rest of it trying to put together a case to go to the Federal Court to be able to argue that this person should not have standing before the Federal Court. That can take weeks, months or potentially years if you look at the Tasmanian legal system and how you can get caught up in it, and then there could be appeals of that decision of the Federal Court as well. It's very simple to say, 'Oh no, we've got a system that will get rid of frivolous and vexatious complaints.'

Senator DAVEY: My understanding of the current law is that third parties can already make applications to deregister and that this is the law that, as per Labor's 2009 legislation—and that includes the minister as it currently stands—so—

Ms Giddings : So why do we need this legislation if that's the case?

Senator O'SULLIVAN: That's a good question. Is there any part of this legislation that you do support?

Ms Giddings : I am not close enough to every clause in the bill to be able to say to you whether or not there would be a clause that we would support in that regard. We are certainly very much against the larger intent of the bill, which seems to be a further attack on unions.

Ms Shepherd : If I can make a couple of comments in relation to previous questions as well. In relation to the reporting requirements, we are already contributing a significant amount of our members' funds to our audit and compliance officers, to our finance officers and to our external accountants to ensure that we are compliant with the Registered Organisation Commission's requirements and the Australian Electoral Commission's requirements. I think, in relation to the added risk associated with this bill, we would need to put additional resources in to mitigate the risk. The lower bar, in terms of people being able to make a vexatious claim, or in relation to our industrial action seeking an application to deregister us—the risks associated with the bill are far more significant, and we would need to put additional resources in to manage those risks and to ensure, ongoing, that we are doing so appropriately. Ultimately we're talking about the deregistration of our union. That's a significant risk.

In relation to support of the bill, we do not support the bill. We believe there are already legislative avenues in place to address—

Senator O'SULLIVAN: No part of the bill at all?

Ms Shepherd : We believe that there are appropriate concerns in relation to particular individuals, unions et cetera, as you've already alluded to, but there are already civil and criminal proceedings and avenues that are able to be undertaken, and we believe that they are appropriate. We also believe that the ROC and AEC reporting requirements are sufficient. It's just unnecessary, and we certainly believe that it's inappropriate to pass a piece of legislation to deal with an individual incident or a particular matter when it has the potential to undermine our ability to support nurses and midwives in Tasmania who are caring for our community.

CHAIR: Okay. I might just draw it to a close there. There will be questions on notice, no doubt, to be answered by 4 October. Thank you very much.