Fair Work Amendment Bill


Senator Seselja: (Australian Capital Territory) (11:41): I am pleased to be supporting this bill today, and I do have to respond to some of what Senator Bilyk had to say.

 Senator Bilyk: Of course you do.

Senator Seselja: I do, Senator Bilyk. I have to respond to some of it because, firstly, most of it did not make sense, and I want to go to where it did not make sense. It is important because I think the reason part of Senator Bilyk's response did not make sense is that the Labor Party do not really have anywhere to go on this. They are pretending that they are opposing it because it is just an attack on the union movement—in Senator Bilyk's words—or that it is an attempt to bring back WorkChoices. If you look at the bill, you will see it is absolutely nothing of the sort. It is actually doing what people such as Paul Howes agree with, which is to focus on those who do the wrong thing and to make sure there are strong safeguards and strong penalties.

This is so we can have confidence that the majority who do the right thing are not labelled as wrongdoers, as fraudsters—like the minority of leaders, not just in unions but also in other groups ,who do the wrong thing, who rort members' money. If we are going to have a debate about this, let's talk about the facts of this bill. Do we actually agree—and this is the question at the heart of this bill—that people who deliberately rort members' money—

Senator Bilyk: No, we do not. I just said that!

Senator Seselja: Well, that is at the heart of this bill. The heart of this bill is to ensure that there is a robust regime to ensure that those types of people are brought to account. It is not against the average, hard-working union official who is doing the right thing. They would have absolutely nothing to fear from anything in this legislation. I agree with Senator Bilyk that the majority do their best and are not seeking to rip anyone off. They would have absolutely nothing to fear. But we have senior judges such as Federal Court Judge Anthony North saying that the penalties under the current act are 'beneficially low to wrongdoers'. Let's reflect on that for a moment. Federal Judge Anthony North has said the penalties you are supporting are beneficially low to wrongdoers.

Let's ignore the fig leaf that the Labor Party has tried to use to cover their opposition to this legislation. If the Craig Thomsons and the Michael Williamsons of the world do the wrong thing—and in some cases they can be criminally prosecuted—and if judges like Anthony North say that the current penalties are beneficially low to wrongdoers, then I think the Australian people would look at legislation and say, 'Why wouldn't you want to fix that situation?' Why wouldn't you want to say to the community, 'We have zero tolerance for this kind of thing?' Occasionally, and sometimes too occasionally, we see people doing absolutely the wrong thing, and we should condemn it, and there should be a robust regime and robust penalties that provide a very strong deterrent and bring those people to justice. Surely that is something we should be able to agree on here.

Senator Ronaldson interjecting

Senator Seselja: Indeed. If you are voting against this, you can make all the arguments about things that it is actually not about, things that it does not do, but that is fundamentally what you have to answer. Paul Howes said:

I actually believe there is a higher responsibility for us as guardians of workers' money to protect that money and to act diligently and honestly.

The reality is I do not have any issue with increasing the level of requirements and penalties on trade unions for breaching basic ethics like misappropriation of funds.

And who would disagree with that? Who would reasonably disagree with that? Paul Howes, prominent union leader, has said he does not have any problem with having reasonable penalties.

Senator Polley: Former!

Senator Seselja: Well, at the time he said it, he was a prominent union leader. I do note the comments of Senator Polley that Paul Howes is no longer one of theirs.

Senator Polley: Mr Deputy President, I raise a point of order. I draw your attention to the fact that the good senator was misleading and was defaming the words that I said, so I want to correct the record.

The DEPUTY PRESIDENT: That is for me to decide, of course, and it is not a point of order, Senator Polley. Senator Seselja you have the call.

Senator Seselja: Thank you, Deputy President, I do appreciate that. It is interesting that they would distance themselves now from Paul Howes and say that he is not one of theirs, that he is no longer a senior union official, so it does not matter what he thinks on the matter. Well, they were happy for him to help knife the Prime Minister and they were happy for him to be a factional leader who no doubt supported a number of their preselections in this place. But if he agrees that wrongdoers should be brought to justice, well, he is no longer one of theirs; he is no longer in the labour movement. That is interesting. I certainly would not agree with Paul Howes on many things, but I would have thought he does have some authority to speak as a senior representative—now a former senior representative—of the Australian union movement. People like Paul Howes and Justice Anthony North say that something needs to be done. Justice Anthony North says that the penalties are too low, and Paul Howes says, 'I've got no problem with having better penalties, reasonable penalties, penalties that are more reflective of the seriousness of some of these offences.' Let's be clear: while not all registered organisations are large, many are. Many manage significant funds. So the potential for wrongdoing is serious and therefore the responsibilities are high. I think this is an absolute fig leaf.

Senator Bilyk was saying, 'This is just about an attack on the unions,' but then she contradicted herself by saying that it also applies to employer groups. So, if it were actually about attacking unions, why would it also include employer groups? Again, your argument very clearly falls down. In fact, your argument fell down as you were delivering it, as you contradicted yourself: it is all about unions, except it is also about employer groups. Well, it is actually about wrongdoers. It is about saying, 'If we can say to company directors that there will be serious fines and, in some cases, criminal prosecutions for serious wrongdoing as company directors, then why can't we say that to registered organisations? In many cases, they are very large organisations with large membership groups and large amounts of funds at their disposal. I would have thought that a reasonable person would look at this and say that that is reasonable—that those who do the right thing have nothing to fear and that those who do the wrong thing should have something to fear, and we should ensure that penalties are commensurate with the wrongdoing in particular cases.

Unfortunately, we do see examples where some organisations are out of control. I will give some examples. We saw eight days of unlawful industrial action by AMWU and CFMEU on a WA site—the Woodside LNG project—in 2008. CFMEU officials threatened to stop work at a Lend Lease site in Adelaide if the union flag was not flown: 'If you don't put it up there—' the union flag on the crane—'we'll bring back 10 brothers tomorrow and stop the job.' There were alleged threats of retaliatory, disruptive industrial action if a Darwin building firm did not give in to CFMEU demands. A WA unionist unlawfully told CFMEU union members to stop work five times at the Probuild construction site in Perth and unlawfully coerced a subcontractor to enter an enterprise agreement with workers. Just this year we saw a Western Australian union boss fined 35½ thousand dollars for bullying workers and threatening to have one contractor's workers thrown off every construction site they were on in Perth if they did not participate in a strike. There are some things I agree with Senator Bilyk on, and one of those things is that the majority of union officials are not in that category. But, unfortunately, we have serious examples of officials who absolutely do the wrong thing.

This legislation is about ensuring that we have law and order in all aspects of our community. Law and order should not stop at the worksite. It should not not apply on building sites, as we have seen in some cases around the country. That holds business back. That holds back the ability of business to be profitable and to employ more people—and in the end that hurts workers; that absolutely hurts workers.

If you are genuinely pro worker, then you would want to have a regime in place that discouraged the Craig Thomsons of the world from rorting union members' funds. You would want to have a regime in place that made it harder for another Michael Williamson. Those are two examples that absolutely appalled all of us. HSU members—hardworking union members and, in many cases, low paid—expect that as a result of paying their union dues they will get fair representation. I am not anti union. I was a member of a union when I worked as an employee of Woolworths. I was a member of the STA. There is nothing wrong with unions, in my opinion. They have a place. They have an important place. But, if individuals in registered organisations, be they employer groups or unions, do the wrong thing, they need to be held accountable. We need to have a robust framework that holds them to account so we can restore balance and fairness to the system.

Let us go to what the bill actually does—

Senator Lines: Finally! Finally, we get to the bill.

Senator Seselja: Well, I have been responding to what Senator Bilyk said and talking about all the things that it does not do. It does not bring back Work Choices. It does not go after people who do the right thing. It goes after those who do the wrong thing.

The bill establishes an independent watchdog, the Registered Organisations Commission, to monitor and regulate registered organisations, with enhanced investigative and information-gathering powers. It amends the requirements for officers' disclosure of material personal interests—and related voting and decision-making rights—and changes the grounds for disqualification and ineligibility for office. It strengthens existing financial accounting, disclosure and transparency obligations under the Fair Work (Registered Organisations) Act by putting certain rule obligations on the face of that act and making them enforceable as civil remedy provisions. It increases civil penalties and introduces criminal offences for serious breaches of officers' duties, as well as introducing new offences in relation to the conduct of investigations under the registered organisations act.

That is what the bill does. It does not do anything that Senator Bilyk claimed in her speech. I am not sure if she has read the legislation—

Senator Bilyk: I have, actually.

Senator Seselja: but it does not do any of that stuff. It does not bring back Work Choices. It does not go after those who do the right thing. It goes after those who do the wrong thing.

Senator Bilyk: It's the way you want to bring back Work Choices.

Senator Seselja: Senator Bilyk again says, 'This is the way you want to bring back Work Choices.' Under her theory, the secret, cunning plan to bring back Work Choices is to go after rotten officials! That would be the way to bring it back! I would have thought there would be bipartisan support for that. It is not a return to Work Choices or anything else. It means ensuring the public can have confidence that there is a proper regulatory regime in place so that those who do the wrong thing will be held to account, such as those who, in that minority of cases—that small number who put a stain on all other representatives—instead of doing their jobs diligently for the benefit of those that they represent, seek to enrich themselves through rorts. Surely, we should all be able to agree on that. But it appears, as we debate this legislation, that we cannot. We cannot agree on something that seems fairly straightforward to me.

The introduction of a registered organisations watchdog will ensure governance of these organisations is kept to a high standard, and a robust compliance scheme will deter wrongdoing and promote good practice. This watchdog will also have the capacity to lead better and more thorough investigations of misconduct. The new Registered Organisations Commission will have the necessary independence and the powers it needs to regulate registered organisations effectively, efficiently and transparently.

I have referenced the HSU scandals: the Fair Work Australia investigation into the Health Services Union took far too long, and the ensuing legal proceedings remain ongoing. A KPMG review of Fair Work Australia's investigations into the Health Services Union identified shortcomings in the conduct of those investigations. Again, surely we would all want to see little more efficiency in the way these things are investigated. That is fair to the accused and to those who have allegedly had wrong done to them, because when these things are not investigated properly and efficiently—if they stretch out for years—that is not fair to the accused. If you are innocent and you are being investigated and it takes years and years to resolve, that is unfair to you. It is certainly unfair in a case where wrongdoing is not proven. It is unfair to those who are seeking redress. It is unfair that it would take so long to get justice in those cases. I think that is another aspect of this legislation which is important.

The commission will have the power to commence legal proceedings and refer possible criminal offences to the Director of Public Prosecutions or law enforcement agencies, as is appropriate. The bill also ensures there are appropriate sanctions against efforts to hinder or mislead investigations. Again, I would think that any observer with common sense would look at that and say, 'That seems a reasonable safeguard to ensure that investigations can occur and that we don't have someone trying to block those investigations, so the commission can thoroughly investigate the alleged wrongdoing and get to the bottom of it.'

I do not know whether or not this legislation will have the numbers in the Senate today. I know that the Labor Party is going to oppose it; I know that the Greens are going to oppose it. I think that is unfortunate. If the Senate does block this legislation it will be a genuine case of obstructionism.

There are many things we disagree on; there are many contentious things. When we debate budget changes they are difficult and we all understand that. Presumably, we are trying to get to the same goal. But I understand the contentiousness of that. But I do not see why this legislation would be contentious to any reasonable person. I do not see what would be contentious to a reasonable person, in saying, 'Yes, we've had some problems. Are they isolated cases? We certainly do not believe they represent the majority, but we know of some very serious wrongdoing.'

Senior judges have identified the fact that the penalties are simply ridiculously low. They favour wrongdoers. So some people have absolutely done the wrong thing where the penalties, at least according to some senior judges, are too low. You have senior union leaders like Paul Howes, saying, 'I don't have any problem at all with there being proper penalties, proper oversight and a proper regime for the minority who do the wrong thing.'

I would say to those considering how they are going to vote on this bill: are you really doing the right thing by your community, by hardworking men and women in Australia, who, in some cases, have been ripped off, if you leave a regime which makes it easier for them to be ripped off? Are you really doing the job of representing your community? I would have thought that a common-sense look at this legislation would say that it is fair, it is reasonable and it absolutely deserves to be supported by the Senate today.