Australia : “Integrity” legislation flouts international labour standards

Australian PM Scott Morrison launches major attack on trade unions.

Thanks to Barry Camfield for sending this article from the Workplace Express workplace

Thursday, July 18th

New analysis warns the Morrison Government that it will breach two key ILO conventions if it proceeds with its revived legislation to make it easier to deregister unions and disqualify their officials.

The research by the UK-based International Centre for Trade Union Rightshas landed as the government and unions are lobbying key Senate crossbenchers over the Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019.

The paper, by the ICTUR’s director Daniel Blackburn and researcher Ciaran Crosson behalf of the ACTU says the Bill would allow the Minister, the ROC and any person “with sufficient interest” – which could include employer groups and lobbyists – to seek to have union officers disqualified or unions deregistered.

It says these provisions are “incompatible with Australia’s commitments” under the ILO’s Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

In particular, the report cites Articles 2and 3of Convention 87 which deal with workers’ rights to establish their own organisations and to draw up their own rules and elect their own officials.

It says the legislation conflates serious crimes and minor legal infractions, blurs joint and individual liabilities, and establishes “punitive sanctions that are both disproportionate and arbitrarily directed”.

It argues the criminal law should apply without special dispensation for unions, but the Integrity Bill allows for disqualification of officials and deregistration of unions for “designated offences” which include relatively minor breaches of industrial law.

The report notes that the standards for disqualification from office are stricter than those applying to Federal MPs, who are barred from nominating as candidates if serving a prison sentence of 12 months or more.

It argues that allowing persons with “sufficient interest” to apply for disqualification of officials and for deregistration of unions is not “a recipe for industrial peace.”

“In operation it turns the current system of registration into one under which the basic purpose of freedom of association – which should be guaranteed without restriction or impairment – may be severely curtailed on minor grounds, at the initiation of employers or other parties hostile to organised labour.

“This creates instability and unpredictability in industrial relations and such an outcome is unlikely to benefit even those who are advocating it.

“Deregistered unions are unlikely to roll over and die – a fact to which Australia’s own historical experiences with deregistration can testify.

“On the contrary, such measures are likely to exacerbate conflicts over industrial and employment policies.

Proposal aligned with oppressive laws in Turkey and Brazil

Overall, the report says the Bill is even more oppressive than Turkey’s labour laws and “invites comparisons with the regulations deployed by repressive regimes.”

It also compares the proposed legislation to laws introduced by a Brazilian dictatorship in the 1940s that was “probably the closest [to the Integrity Bill] of all those we considered”.

“For Australia to propose an industrial law reform that would bring it closer to the example provided by Brazil’s historical dictatorship than to those found in modern Western Europe illustrates just how alarming these developments are.

“The proposal is not merely ‘out of step’ with the industrial relations systems of comparable countries; it has no rightful place in a modern liberal democracy.”

Australian Congress Of Trade Unions president Michele O’Neilsays Australia already has one of the most restrictive regimes of regulations on workers’ organisations among democratic nations.

“This extreme new law would align Australia with authoritarian, undemocratic countries,” she said.

IR Minister Christian Porter has argued that the 2019 Bill introduces new and streamlined cancellation grounds to deal with registered organisations that are closer to the law relating to companies and company officers under the Corporations Act (see Related Article).

These changes have been made to an earlier Bill – which was introduced in 2017 but not passed before this year’s federal election – after it failed to win crossbench support.

Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019, Research paper by The International Centre for Trade Union Rights, on behalf of the Australian Council of Trade Unions, by Daniel Blackburn and Ciaran Cross,
July 2019

EM says Bill “reasonable and proportionate” on rights

The 2019 Bill’s  explanatory memorandum maintains that the changes do not affect the rights of workers to continue to be represented because an “organisation that obeys the law and complies with its rules is not at risk of having its registration cancelled”.

The EM says that the Federal Court can make alternative, lesser orders to disqualifying an official or deregistering a union.

“Providing for the possibility of disqualification from office and restricting who can be elected to office, in circumstances where a ground for disqualification has been made out and the Federal Court considers disqualification just, is a rational means of ensuring greater compliance with the standards of conduct reasonably expected of officers, and a rational method for improving governance of organisations more generally.”

“Any limitations on the capacity of registered organisations to regulate their affairs as they see fit are a necessary and proportionate means of ensuring greater compliance with the standards of conduct reasonably expected of officers and improving the governance of registered organisations,” it says.

“These are reasonable and proportionate methods of ensuring that officials who deliberately disobey the law are restricted in their ability to be in charge of registered organisation.

“It is also necessary and proportionate that the sanction of disqualification for a substantial number of members’ failure to comply with core industrial laws is placed on officials as it is incumbent on those in leadership positions to promote a culture of compliance.

“This will serve to protect the interests of members and support public order by ensuring the leadership of registered organisations act lawfully.”

The EM says that article 8(1) of ILO Convention 87 specifically provides that, in exercising the rights to freedom of association, workers, employers and their respective organisations shall respect the law of the land.

“Choosing to register under the Act is a privilege governed by the existing Act.

“Organisations registered under the Act do not currently have freedom to conduct their affairs in any way they see fit, but are bound by the Act.

“When organisations or their officers deliberately breach the Act then there must be an effective sanction if the system of registration is to remain meaningful. In the case of a registered organisation, the sanction could include losing the right to expand through amalgamation, being placed into administration, or losing registration.

“Consistent with the existing structure for the registration of industrial associations, the Bill makes clear that there is a framework within which registered organisations must operate.” 

The legislation has been referred to a Senate inquiry(see Related Article).

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