The Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 (‘EI Bill’) has been re-introduced to Parliament couched in talk of the rule of law and “appalling behaviour” by union officials and sections of the union movement. But look beyond the rhetoric of ‘organised thugs’ and ‘union bosses’ and what you find are proposals that threaten the independent operation of democratic organisations and violate international labour and human rights standards. The practical impacts should the EI Bill become law are the stifling of worker voice and further impediments to workers obtaining fair pay and conditions of work.
The freedom to associate sits at the heart of democracy and enables workers to unite and work together to promote and protect their economic and social interests. The importance of this freedom to democratic society is reflected in its status as an internationally recognised human right. Absent a constitutionally enshrined bill of rights, Australian human rights law is unique in that it relies almost exclusively on the will of the Parliament. The lack of domestic human rights law bolsters the importance of those international conventions which Australia has freely signed onto; these include:
- United Nations International Covenant on Economic, Social and Cultural Rights (‘ICESCR’);
- United Nations International Covenant on Civil and Political Rights (‘ICCPR’);
- International Labour Organisation Freedom of Association and Protection of the Right to Organise Convention 1948 (No.87);
- International Labour Organisation Right to Organise and Collective Bargaining Convention 1949 (No. 98).
All of the above instruments support the right of workers to free association and require the free and democratic operation of worker organisations. Not only has Australia participated in the development of these conventions and freely agreed to be bound by them, it has also reaffirmed its commitment to the principles of freedom of association internationally – including most recently through the ILO Centenary Declaration and the inclusion of labour clauses in international trade agreements.
Australia’s obligation to observe international human rights law is acknowledged under the Human Rights (Parliamentary Scrutiny) Act 2011 which established the Parliamentary Joint Committee on Human Rights. The role of the Committee is to assess all new bills and legislative instruments and report on their compatibility with Australia’s human rights obligations under a range of instruments including the ICCPR and the ICESCR. In 2017 such a report was returned on the original version of the EI Bill (introduced into the last Parliament). This report deemed the proposed amendments unlikely to comply with Australia’s human rights obligations.
The rule of law is a foundation of democratic and responsible government and at its most basic ensures that citizens and government are equally bound by and entitled to the protection of law. The Attorney-General’s Department “supports the Australian Government in being accountable for actions, making rational decisions and protecting human rights” and “advance(s) the rule of law internationally by actively promoting adherence to the global rules-based system”. It is thus surprising that the Attorney-General and Minister for Industrial Relations, Christian Porter is urging the passage of legislation that is in clear violation of international human rights law.
The legitimate ills which the EI Bill purports to address, including financial misconduct and fraud engaged in by officers of registered organisations, are already appropriately subject to criminal sanctions and other measures already legislated in response to the Heydon Royal Commission. Rather than bolster the current criminal regime the proposed amendments threaten to dismantle worker organisations, unfairly punish workers and their organisations for the actions of individuals and in the process interfere with and obstruct the right to free association.
The provisions of the EI Bill are explored in a research report released last week by the International Centre for Trade Union Rights (‘ICTUR’). The report finds the proposals do little to address criminal behaviour and mismanagement and instead confuse issues of law by conflating serious criminal activity with minor or technical civil infringements; fail to distinguish between the actions of an organisation and those of its office holders; and impose the ‘nuclear option’ of deregistration as the default response to what may be minor or technical breaches of industrial law.
Adopting the principles of the ILO, the AIER works to promote the recognition of workers’ rights and a cooperative industrial relations framework. If legislated, the provisions of the EI Bill would directly interfere with the right to free association and the independent functioning of trade unions. Sanctions under the EI Bill may be initiated by persons of ‘sufficient interest’ – an invitation to employers, employer associations and industry lobby groups to hinder and attack trade unions. Such measures pose a direct threat to cooperative and harmonious industrial relations in Australia.
Protection of the principle of freedom of association and Australia’s international reputation as a guardian of human rights, along with adherence to the rule of law, demand the unequivocal rejection of the EI Bill.
The EI Bill has been referred for consideration by a Senate Committee, with a report due by 25 October 2019. AIER will make a detailed submission to the Senate Committee.