Stop Morrison govt move to strangle trade unions with Ensuring Integrity Bill

Prime Minister Morrison is now poised to force the Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill through the Senate. This cynically-named Bill is the most dangerous move against workers’ rights and living standards since Howard’s notorious WorkChoices in 2005.

What is in the Ensuring Integrity Bill?

Removing an official of a trade union

• The Minister, the Commissioner of the politicised Registered Organisations Commission, or any ‘person with sufficient interest’ (which could include an employer or employer organisation) could bring an application to disqualify a union leader.
• Grounds for disqualification include a single, minor or technical contravention of -- a civil penalty provision in the Fair Work (Registered Organisations) Act, such as filing financial or membership records even a day late; or -- a civil remedy provision in the Fair Work Act, such as “contravening a bargaining order” which requires a log of claims to be provided by a certain date.
• Grounds for disqualification include not meeting a ‘fit and proper person’ test. This is a broad and undefined ground with no equivalent in the Corporations Act and which has retrospective elements. For example, a person could have an application for a right of entry permit refused on the basis of an old conviction which happened before the commencement of this Act.
• Once a ground is made out, the Court can have regard to matters occurring before the Act even commenced to determine whether disqualification would be just. The Government cannot therefore claim that this amended Bill won’t apply retrospectively.

This means, for example, that an application for disqualification could be brought against a member of a branch council who changes position within a union and is unable to complete the required financial duties training within six months of taking office because they are a full-time shift worker in a rural location and are unable to take the time off work to travel to a metropolitan area to complete the training again. Similarly, an application could be brought against a union official for something as simple as misplacing a health and safety entry permit and not being able to return it after it had expired.

Deregister a trade union or interfere directly in its operation

The Minister, the Commissioner of the politicised Registered Organisations Commission, or any ‘person with sufficient interest’ (which conceivably could include an employer or employer organisation) can bring an application for deregistration, which cancels the union’s right to represent employees in collective bargaining and in the Fair Work Commission.

These people can also apply for so-called ‘alternative’ orders to:

• disqualify certain officers;
• exclude certain members;
• restriction and control of the organisation’s funds and property; and
• suspend any rights, privileges and capacities of the organisation or members or part thereof, including for example the right to represent its members in bargaining or to enforce an award, despite the organisation’s own rules.

The Court can make these orders on a wide range of grounds including that the union was unfair to a single member or class of members. For example, if the union won a flat dollar pay increase through bargaining which meant a bigger proportional pay increase for the lower paid members in that workplace, an application could be brought on the ground that it was unfair to the higher paid members and then the union’s resources must be spent defending the litigation.

Put the trade union into administration

The Minister, the Commissioner of the politicised Registered Organisations Commission, or any ‘person with sufficient interest’ (which could include an employer or employer organisation) can bring an application for the imposition of an administrative scheme on grounds such as multiple contraventions of the Fair Work Act or alleged unfair treatment of parts of the membership.

“Administration” means appointing an accounting firm to manage the union.

Make union mergers impossible

Industrial organisations wishing to merge would have to undergo a burdensome two-stage hearing process with no avenue of appeal. Previous union mergers – amalgamations – can be undone.

The Fair Work Commission would not be allowed to approve an amalgamation if a public interest test is not met. The Commission is afforded little discretion in determining whether a union has a record of not complying with the law, which is an automatic ‘fail’ on the test.

The public interest test includes the impact the union merger might have on employees or employers in the industry or industries concerned and any other relevant matters. This means that economic considerations and the commercial interests of industry and employers can trump the current democratic process of union members voting to merge in a democratic ballot conducted by the Australian Electoral Commission.

The Registered Organisations Commissioner, various Ministers and organisations who are not within the relevant industry but ‘that might otherwise be affected’ will have a legal right to address the public interest test. For example, this could conceivably include an organisation that represents the industrial interests of employers in another part of the supply chain.

What is the Morrison government objective?

The Morrison Coalition government wants to weaken and control trade unions by giving the Minister the tools to cancel a union’s registration, remove its elected officials, decide who can be a union member, and take control of a union’s finances.

This is a politically motivated attack on workers’ ability to run their own union and determine who leads them. It imposes harsher, higher and overly burdensome regulations on unions than it does on any other organisation in society, including corporations. It also allows employers and the Government of the day to interfere in the democratic operation of unions.

This anti-union move is calculated to immediately damage the Labor Opposition in the daily political debate, and in the long term to greatly reduce trade union financial and campaign support for Labor election campaigns.

It is also calculated to boost the profits of big corporations by greatly reducing the bargaining power of trade unions. These corporations, most of them owned in the USA, Europe and Japan, are key financial backers of the Liberal and national Parties.

It is shift away from democracy towards a one-party state, run by the Liberal – National Party Coalition.

Aren’t corporations treated the same?

Morrison makes the misleading claim that the Ensuring Integrity Bill brings the regulation of trade unions in line with the regulation of corporations. This is not true. This law would not apply to banks or other big businesses.

And unions are not the same as corporations, anyway. They are not-for profit organisations with an elected committee of management who are volunteers. They work for the interests of all members, not the profits of a few.

There are no equivalent provisions in the Corporations Act that specifically and directly allow for companies to be wound up due to a history of non-compliance with the law by them or their shareholders. Therefore, a company can repeatedly put workers lives at risk, commit wage theft, illegally dump toxic chemicals or produce dangerous products and not be wound up, whereas a union could have its registration cancelled if a group of members take unprotected industrial action.

The grounds for the appointment of an administrator under the Corporations Act are limited to insolvency and enforceable security interests. Under the Ensuring Integrity Bill, administration can be imposed essentially to punish unions rather than to help them sort out their affairs for the benefit of their members.

Corporations can have an extensive record of not complying with the law, including tax avoidance and wage theft, and not be prevented from merging, but unions would be prevented from merging for very minor technical failings.

What can workers do to stop the Ensuring Integrity Bill?

Call MPs now

Up until the Bill is voted on in the Senate, workers can contact their local federal MP or Senators to urge them to vote against the Bill in its entirety. Contact details for all Senators can be found at www.aph.gov.au/Senators_and_Members.

Key targets are the Centre Alliance Senators Rex Patrick and Stirling Griff, and Senator Jacquie Lambie.

MPs are sensitive to the voices they hear, and most of all to voters, so it is very important that they hear voters who strongly oppose this Bill. Our voices have to be civil, and clear.

If the Bill is passed and becomes law – protest!

The government aims to have this Bill through the Senate during November. If it is passed there will be a series of applications by the Minister, the Registered Organisations Commission and employers to remove certain elected officials, and likely to reverse the recent amalgamation of the Maritime Union of Australia and the Construction Forestry Mining & Energy Union. In the employer strategy, the strongest unions should be broken to weaken the entire union movement.

Unions faced with these attacks would initially try to fight the moves in the Court, and this may delay the impact – at a significant cost – for a few months. But the new law has been designed to make legal objection very difficult.

Popular protest and strikes driven by union members are a more powerful defence than the courts.

The Morrison government is presiding over a ‘national security state’ with unprecedented powers to put citizens under surveillance, to arrest journalists, and to potentially arrest anyone whose criticisms can be labelled as a ‘national security threat’. The Registered Organisations Commission is exposed already for its illegal raid on the Australian Workers Union in October 2017.

Basic democratic rights are now a feature of public debate, and the trade union movement can fight strongly on the democratic rights of workers to join the union of their choice, and to act in the interests of their members, and to oppose any use of the extreme undemocratic provisions in the Ensuring Integrity Bill.

The union movement should choose its moment, and be ready for mass protests when undemocratic action is taken against any union under this proposed law. The particular union targeted needs to give the lead by explaining their situation to the public, and being prepared to take strike action.

Remember – the Morrison Coalition government has a majority of just two. Despite the public bluster it is deeply divided, with virtually no positive ideas to address Australia’s economic stress. It is very sensitive to public criticism. Australia needs a strong union movement to maintain and improve equality and fairness, and to win badly needed higher wages.

The John Setka case

Victorian Secretary of the CFMMEU, John Setka, is a lightning rod for anti-union employers and politicians, and is being used by Senator Lambie as a major factor in her eventual vote on the Ensuring Integrity Bill.

The majority of the trade union movement have asked Mr Setka to resign because of his sentence for harassment of his spouse early in 2019, not because of his management of his union branch. The union movement does not tolerate domestic violence. It is up to John Setka and / or the Victorian Branch of the CFMMEU to decide what to do, and so far they have decided he won’t resign.

The Setka case demonstrates why trade union conduct has to live up to union principles of equality, democracy and solidarity. Rightly, the CFMMEU has removed any official whom they find to have broken the rules, especially in managing union finances. Across all trade unions, all elected officials complete governance training as required by current laws.

The John Setka case does not justify a law like that proposed in the Ensuring Integrity Bill, which attacks the basic rights of Australian workers to organise their unions and run them democratically. It is a sick joke to argue that this law is designed to protect women from domestic violence.

Stop Morrison govt move to strangle trade unions with Ensuring Integrity Bill