Passage of Registered Organisations Amendment: Government Succeeds in Pulling 1st Trigger
Wednesday 23 November 2016 @ 11.58 a.m. | Corporate & Regulatory | Crime | Industrial Law
On 22 November 2016, the Fair Work (Registered Organisations) Amendment Bill 2014 (Cth) (the Registered Organisations Bill) finally passed through both houses of the Federal Parliament. This result was achieved with a lot of compromise and negotiation and with an all night sitting of the Senate to finally pass the Bill.
The first version of the Registered Organisations Amendment Bill was introduced into Parliament in 2014 and encountered much resistance in the last parliamentary session; resistance to the point where, in June 2016, it became one of the the Bills (triggers) the Federal Government relied on to call its double dissolution election - the other "trigger" Bill being the Building and Construction Industry (Improving Productivity) Bill 2013 (the ABCC Bill) which is currently before the Senate at second reading stage (7 November 2016 - also the topic of much potential negotiation and compromise).
About the Registered Organisation Bill
In general terms, the Registered Organisations Bill amends the Fair Work Act 2009 (Cth) and Fair Work (Registered Organisations) Act 2009 (Cth) to bring the obligations and penalties applicable to union officials into accord with those applied to company directors and officers.
Further, the Registered Organisations Bill establishes a new regulator to be known as the Registered Organisations Commission, having investigative powers similar to those held by the Australian Securities and Investments Commission (ASIC) and having oversight of new and extended disclosure requirements.
The penalty structure for union officials found to breach the law will be increased to bring them into line with those faced by company directors. For example, at present, "failure to act in the best interests of the organisation" attracts a maximum penalty of $10,800. Under the changes made by the Registered Organisations Bill this increases to $18,000 and up to $216,000 for serious breaches. The Registered Organisations Bill will also introduces a criminal offence where the "failure to act in the best interests of the organisation" is found to be "intentionally dishonest", this attracting a maximum penalty of $360,000 and/or a jail sentence of five years, similar to the penalties imposed by the Corporations Act 2001 (Cth).
How it Passed - Extra Changes Negotiated with Crossbenchers
In the final vote in the Senate, the Registered Organisations Bill was opposed by the Labor opposition, the Greens Party and Tasmanian Senator Lambie, with the Xenophon Team (the NXT) and Senator Hinch, the One Nation block of Senators and the Liberal Democrat Senator Leyonhjelm voting with the government. To obtain this result, the government had to negotiate with the the NXT and Senator Hinch to obtain amendments to strengthen the safeguards around auditors and include major protections for "whistleblowers". Protections that the government, it is reported, has also "pledged in writing" to extend at a later date to the corporate and public sector.
The main effect of the whistleblower amendments is to broaden the range of people who can "make protected disclosures" and expanding the remedies that are available to whistleblowers, allowing them to pursue compensation, reinstatement to employment, injunctions and apologies - as protection for having taken action.
As part of the deal with NXT, it is reported that in a written agreement the government has promised a Parliamentary Inquiry to examine the whistleblower amendments:
The Parliamentary Inquiry would report by June 2017, with, were it to proceed, a Bill being introduced into Parliament by December 2017 and legislation in force no later than 30 June 2018.
Second Trigger Still to be Finally Pulled - Perhaps
Two Bills were in play as noted above, and the second, the ABCC Bill is still very much up for negotiation.
The acronym ABCC stands for the "Australian Building and Construction Commission", a building industry "watchdog" created following the Cole Royal Commission. The original ABCC was established in October 2005, surviving until February 2012 when the Gillard government passed legislation which replaced it with the "Fair Work Building and Construction Commission". The Coalition, since its return to government, has sought to revive the ABCC - a position based on the argument that it ". . . will tackle illegal behaviour on construction sites and improve productivity through the use of tougher penalties".
The ABCC Bill is now in its third iteration being reintroduced on 31 August 2016. Should the Bill be defeated again in the Senate, the government can now call, after the June election, a joint sitting of Parliament - a sitting where both the House of Representatives and the Senate join forces - in a bid to pass the changes and resolve the deadlock.
Essentially, the government argues, the Bill will settle an unruly building industry with tough penalties that will see productivity increase, while the opposition claims that there would be no improved productivity if the ABCC is revived and it warns that there will be ". . . increased coercive powers without adequate oversight".
The fate of the ABCC Bill is still in the balance with the government requiring 8 out of 10 possible crossbench votes to carry the Bill and most of those crossbench senators are as yet, at least publicly, undecided or holding reservations about the ABCC Bill.
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Sources:
Fair Work (Registered Organisations) Amendment Bill 2014 (Cth) and Building and Construction Industry (Improving Productivity) Bill 2013 and supporting materials as reported in the TimeBase LawOne Service
Deal on whistleblowers wins first double-dissolution bill (The Conversation)
