The Ensuring Integrity Bill is about one thing: curtailing union power

Last week I co-authored the Australian Institute of Employment Rights submission to the Senate Committee on the federal Government’s Ensuring Integrity Bill, with Renee Burns and Mark Perica. This is a summary of our submission with a few additional points from me.

The amendments proposed by the Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 (EI Bill) are in direct violation of Australia’s labour and human rights obligations under international law.

If legislated, the provisions of the EI Bill would directly interfere with the rights to freedom of association and independent functioning of trade unions guaranteed by (among other international instruments) ILO Convention 87 on Freedom of Association and Protection of the Right to Organise.

Schedule 1 of the EI Bill seeks to expand both the circumstances in which a person may be disqualified from office in a union, and the actors who may initiate disqualification. It introduces a criminal offence for disqualified persons who continue to hold office or act to influence the organisation. These provisions unjustifiably interfere with freedom of association and the right of workers and employers to elect their membership in full freedom.

Further, Schedule 1 expands the grounds for disqualification of union officials to include ‘designated findings’, which include findings that an official has committed a criminal offence under a ‘designated law’ (e.g. the Registered Organisations Act, Fair Work Act 2009, Building and Construction Industry (Improving Productivity) Act 2016, federal and state work health and safety laws); or contravened a civil penalty/civil remedy provision of any of these laws. This proposed definition conflates criminal and civil violations, potentially roping in a range of minor or technical contraventions, such as right of entry breaches in response to serious safety concerns or the late lodgement of a union’s financial records which do not justify disqualification from office.

Schedule 1 also proposes new provisions that would enable the Federal Court to make orders for disqualification of an office-holder for a specified period of time based on a wide range of grounds, including designated findings being made against that individual; multiple failures to prevent contraventions by the official’s organisation; or that the official is not a ‘fit and proper person’. This would constitute a sweeping new regime for the disqualification of union office-holders, which imposes unwarranted forms of double punishment in certain circumstances (e.g. in relation to right of entry breaches).

Schedule 2 of the EI Bill proposes to significantly expand the grounds on which the Federal Court may order the deregistration of a union, and enable a wider range of actors to seek deregistration. At present, deregistration is a remedy available to remove the benefits of registered organisation status from a union that has acted as a delinquent (e.g. by repeatedly taking unprotected industrial action). However Schedule 2 would enable deregistration to be obtained, for example, because a union has engaged in ‘obstructive industrial action’ or because designated findings (see above) have been made against it.

It is clear that the main target of these new provisions is the Construction, Forestry, Maritime, Mining and Energy Union. While this is in itself a spurious basis for expanding the capacity to obtain deregistration, the Government has made out no case whatsoever for adding multiple new grounds of deregistration that would apply not only to the CFMMEU, but to all registered unions. The proposed deregistration provisions in Schedule 2 further erode the balance between rights and obligations for trade unions, and may lead some unions to question the value of continuing to remain federally registered organisations which are subject to the disciplines of the FW Act and RO Act frameworks.

Schedule 4 of the EI Bill seeks to introduce a new ‘public interest’ test for union amalgamations. This is sufficiently regulated by the RO Act, which essentially provides for a democratic process involving the members of the unions seeking to merge, overseen by the Fair Work Commission. The provisions of Schedule 4 are a clear violation of the right of workers to determine their constitutions and rules in full freedom, in accordance with ILO principles.

There is no public policy justification for this major proposed change to Australian regulation of trade unions. It is well known that the Government was strongly opposed to the amalgamation in 2018 which created the CFMMEU, and that an earlier version of the EI Bill included provisions intended to thwart that merger. The irresistible conclusion is that the proposed public interest test is not intended to address any genuine concern or deficiency in current regulation, but rather is simply about combating union power.

And that, in a nutshell is what the EI Bill is all about. Since 2013 the Abbott/Turnbull/Morrison Governments have constructed the state apparatus to take down Australian unions – the Heydon Royal Commission and the series of restrictive laws which have followed it (albeit that some measures were necessary to address genuine instances of union corruption, fewer in number than Commissioner Heydon claimed). The EI Bill is the latest in that legislative series, but the one that – through its massive over-reach – displays the Coalition’s true objective.

Conservatives and employers in Australia can’t make their up minds whether trade unions are a relic of the past, facing imminent demise – or a serious threat that must be obliterated. Just as AMMA and others were frothing at the mouth last year over the calamitous potential of the CFMEU/MUA merger, the National Retail Association this week claimed that the current NUW/United Voice merger could lead to coordinated industrial action causing havoc across retail supply chains. What they are really worried about is workers acting through a democratic organisation to exercise power in the workplace.

The EI Bill could make future union mergers of this kind harder to achieve. It would make it easier for union officials to be disqualified from office and for unions to be deregistered, potentially on trivial grounds. It offends internationally accepted labour law and human rights norms. It should not become law.

The full AIER submission is available at: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_and_Employment/EnsuringIntegrity2019/Submissions