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senate vote 2017-08-09#3
Edited by
mackay staff
on
2023-11-17 12:12:44
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Title
Bills — Fair Work Amendment (Corrupting Benefits) Bill 2017; in Committee- Fair Work Amendment (Corrupting Benefits) Bill 2017 - in Committee - Meaning of 'related party'
Description
<p class="speaker">David Leyonhjelm</p><p> () (): by leave—I oppose schedule 1 in the following terms:</p>-
- The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2017-08-09.59.1) introduced by NSW Senator [Doug Cameron](https://theyvoteforyou.org.au/people/senate/nsw/doug_cameron) (Labor), which means it failed.
- ### What did this amendment do?
- Senator Cameron [explained that](https://www.openaustralia.org.au/senate/?gid=2017-08-09.59.1):
- > *This amendment changes the definition of 'related party' in relation to the new requirements to make disclosures during negotiations of enterprise agreements. The bill imposes disclosure requirements during the negotiation of enterprise agreements where a proposed term of an agreement will give either the union or the employer a financial benefit. The bill requires the union to disclose any potential benefits from an enterprise agreement that may flow to a related party, which, as currently defined, is an extended, unreasonable list of people and entities. The amendment defines 'related party' clearly and precisely as the branch or branches of the organisation which the members of the organisation—that is, the bargaining representatives—are members of, an officer of that branch, an entity controlled by the organisation, or a spouse of a divisional committee of management provided that an officer of the branch referred to in paragraph (a) is also a member of such committee. Again this is overreach. The amendment is needed to make this bill consistent with all the expert advice to the committee and the minister.*
- ### Amendment text
- > *(16) Schedule 2, item 1, page 11 (lines 8 and 9), omit the definition of related party in section 12, substitute:*
- >
- > *related party, of an organisation that is a bargaining representative for a proposed enterprise agreement, means:*
- >
- >> *(a) a branch of the organisation of which employees who will be covered by the agreement are members; or*
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- >> *(b) an officer of a branch mentioned in paragraph (a); or*
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- >> *(c) an entity controlled by the organisation; or*
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- >> *(d) a spouse of a person mentioned in paragraph (b); or*
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- >> *(e) if a person mentioned in paragraph (b) is a member of a committee of management of the organisation or a branch of the organisation—another member of the committee of management;*
- >
- > *where committee of management, control, entity, officer and spouse have the same meanings as in the Registered Organisations Act.*
<p class="italic">(1) Schedule 1, item 3, page 8 (line 16), subsection 536F(2) <i>to be opposed</i>.</p><p class="italic">(4) Schedule 1, item 3, page 10 (line 20), subsection 536G(2) <i>to be opposed</i>.</p><p>The Fair Work Act, with its minimum wages, its unfair dismissal law and its inordinate red tape, is preventing hundreds of thousands of Australians from getting a job. It's a cause of sheer misery. My party, the Liberal Democrats, would abolish the Fair Work Act. As a result, employers would not be forced to negotiate with unions and the artificial power of unions to extract kickbacks would disappear.</p><p>While the Fair Work Act remains, the Liberal Democrats support the government's attempt to ban kickbacks. As such, we support the intention of the government's Fair Work Amendment (Corrupting Benefits) Bill 2017. However, in its exuberance to attack union kickbacks, the government has forgotten the liberal values that underpin Western civilisation. One of these liberal values is the principle that the criminal law by which a person can be put in jail should be determined by the parliament. The government's bill violates this principle by seeking to empower the minister to expand a criminal offence by issuing a regulation.</p><p>The criminal offence involves an employer providing a benefit to a relevant union official and is punishable by up to two years imprisonment. The government's bill proposes that the legislated exceptions to this offence could be whittled away by regulation. This is wrong. It is true that a regulation expanding this criminal offence would be disallowable by the Senate. But, if a disallowance vote was tied, the regulation would remain. The criminal offence would be expanded, despite the government not achieving a parliamentary majority in support of such an expansion. This is undemocratic. I move amendment (2) and sheet 8191:</p><p class="italic">(2) Schedule 1, item 3, page 9 (lines 3 to 5), omit all the words from and including "However," to the end of subsection 536F(3) (not including the note).</p><p>Accordingly, item 2 on sheet 8191 removes the proposed power to expand a criminal offence by regulation. I commend this amendment to the chamber.</p><p>I move amendments (3) and (5) on sheet 8191:</p><p class="italic">(3) Schedule 1, item 3, page 10 (lines 13 to 15), omit paragraph (c), substitute:</p><p class="italic">(c) the provider is a national system employer other than an employee organisation; and</p><p class="italic">(d) the provider, a spouse (within the meaning of the Registered Organisations Act) or associated entity of the provider, or a person who has a prescribed connection with the provider, employs a person who is, or is entitled to be, a member of the organisation and whose industrial interests the organisation is entitled to represent.</p><p class="italic">(5) Schedule 1, item 3, page 10 (after line 20), at the end of section 536G, add:</p><p class="italic">(2) Subsection (1) does not apply to a cash or in kind payment mentioned in subsection 536F(3).</p><p>The remaining items on sheet 8191 remove strict liability. Under strict liability, a defendant can be found guilty of some harm, even if the defendant did not intend to cause harm and was not reckless about the risk of harm. The defendant can try to keep out of jail by claiming a relevant excuse, but the onus for proving this excuse would rest with the defendant. It is illiberal to put blameless people in jail and to treat someone as guilty until proven innocent. The reversal of the onus of proof is contrary to the most fundamental premise of the Australian legal system. The government has a criminal law policy that an offence punishable by imprisonment should not be an offence of strict liability. Unfortunately, the government somehow forgot its own policy and proposed a strict liability offence as punishable by up to two years for when an employer provides a benefit to a relevant a union official. Through my amendments, an employer or union official will only go to jail if they intended this to happen or are reckless about the risk. This is how it should be.</p><p>Western civilisation is the greatest civilisation the world has ever known. Fundamental to its success is the rule of law, where we are innocent until proven guilty and where only the blameworthy can be denied their liberty and thrown in jail, rather than just people the ruling powers do not like. The government would do well to remember this. I commend my amendments.</p> <p class="speaker">Doug Cameron</p><p>I will just indicate that Labor will not be opposing these amendments. We think they are a second-best option. With all due respect to the senator: he's a lion when he's out there in the <i>Fin Review</i> but a bit of a lamb when he's in here sucking up to the coalition. This doesn't go far enough. It doesn't protect the trade union movement. It doesn't protect working people. If that's the best you can do, Senator, I suppose that's the best you can do. But we won't oppose it.</p> <p class="speaker">Michaelia Cash</p><p>I thank Senator Leyonhjelm for working constructively with the government on this issue, which I do note is one of principle for him. I do indicate that the government will be supporting amendments (2) and (3) and items (1) and (4). We are of the view that Senator Leyonhjelm's amendments are reasonable alternatives that are consistent with the purpose and intent of the legislation. I don't think it will come as a surprise to anyone in this place that the regulation-making powers in the bill are, as they are in many Commonwealth acts, designed to allow for developments in law or practice that affect relevant provisions of the bill. Again we are happy to accept the amendment in relation to the changes, and it will be the existing list of legitimate payments in the bill.</p> <p class="speaker">Linda Reynolds</p><p>The question is that subsections 536F(2) and 536G(2) in item 3 of schedule 1 stand as printed.</p><p>Question negatived.</p><p>The TEMPORARY CHAIR: The question now is that amendments (2), (3) and (5) on sheet 8191 be agreed to.</p><p>Question agreed to.</p> <p class="speaker">Doug Cameron</p><p>I move amendment (16) on sheet 8143:</p><p class="italic">(16) Schedule 2, item 1, page 11 (lines 8 and 9), omit the definition of <i>related party</i> in section 12, substitute:</p><p class="italic"><i>related party</i>, of an organisation that is a bargaining representative for a proposed enterprise agreement, means:</p><p class="italic">(a) a branch of the organisation of which employees who will be covered by the agreement are members; or</p><p class="italic">(b) an officer of a branch mentioned in paragraph (a); or</p><p class="italic">(c) an entity controlled by the organisation; or</p><p class="italic">(d) a spouse of a person mentioned in paragraph (b); or</p><p class="italic">(e) if a person mentioned in paragraph (b) is a member of a committee of management of the organisation or a branch of the organisation—another member of the committee of management;</p><p class="italic">where <i>committee of management</i>, <i>control</i>, <i>entity</i>, <i>officer</i> and <i>spouse</i> have the same meanings as in the Registered Organisations Act.</p><p>This amendment changes the definition of 'related party' in relation to the new requirements to make disclosures during negotiations of enterprise agreements. The bill imposes disclosure requirements during the negotiation of enterprise agreements where a proposed term of an agreement will give either the union or the employer a financial benefit. The bill requires the union to disclose any potential benefits from an enterprise agreement that may flow to a related party, which, as currently defined, is an extended, unreasonable list of people and entities. The amendment defines 'related party' clearly and precisely as the branch or branches of the organisation which the members of the organisation—that is, the bargaining representatives—are members of, an officer of that branch, an entity controlled by the organisation, or a spouse of a divisional committee of management provided that an officer of the branch referred to in paragraph (a) is also a member of such committee. Again this is overreach. The amendment is needed to make this bill consistent with all the expert advice to the committee and the minister.</p> <p class="speaker">Michaelia Cash</p><p>The government will not be supporting this amendment. This amendment actually has the effect of limiting disclosure and transparency. What is being proposed by the opposition would prevent workers from finding out what benefits are flowing to those closely associated with their union—for example, payments made to a company run by a union boss. It would hide from workers the kinds of payments the royal commission uncovered that were regularly being made by employers to slush funds that were actually controlled by union bosses. We on this side of the chamber believe that these payments should be disclosed, as should payments to any legitimate entity controlled by a union official that is receiving payments from the employer. Again, this amendment will have the effect of limiting the disclosure and transparency that I would hope we're all trying to achieve.</p><p>In terms of the definition of 'related party' that is currently in the bill: it is an existing concept and it has been taken from the Fair Work (Registered Organisations) Act 2009. This is nothing new. There really is no credible argument for deviating from that definition. Again, the effect of the amendment would be that you may end up creating legal loopholes, particularly for employer organisations. This is because much of the proposed definition of 'related party' hinges on the existence of a branch of an organisation, whereas not all organisations are actually defined by 'branches'. This is a significant deficiency that we would not support, as the bill should apply equally to disclosure by unions and employer organisations.</p><p>The CHAIR: The question is that item (16) on sheet 8143 be agreed to.</p> -
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