1.1
Labor Party senators broadly agree with the objectives of the bill.
Serious misconduct should attract appropriate penalties, and Labor senators
agree that, as their members' representatives, officials of registered
organisations should be held to a high moral standard. Corrupt behaviour –
where it exists – should not be tolerated, and the introduction of strong
penalties will be a positive step in eliminating it. It is for these reasons
that Labor senators' remarks take the form of additional comments, rather than
a dissenting report.
1.2
Notwithstanding Labor senators' support for the bill, the committee
received clear and repeated evidence that some amendments were necessary. These
shortcomings were identified in evidence from both employers and employees. For
example, Ai Group submitted that:
Some important changes are needed to the Bill to ensure
fairness to employers, employees, registered organisations, officers of
registered organisations, and employees of registered organisations.[1]
1.3
In summary, some parts of the bill lack sufficient definitional clarity,
while other provisions may give rise to considerable, quite possibly unintended
consequences not only for registered organisations, but also employers.
1.4
Having considered the evidence put to the committee, Labor senators
consider that some provisions of the bill as it stands could serve to hobble
its effective administration, and potentially hinder successful prosecutions.
The suggested amendments have been drafted to strengthen the operation of the
bill, and bring more certainty to those who would be subject to it.
1.5
Accordingly, Labor senators consider that the bill should be amended to
address the following significant problems.
Giving, receiving or soliciting
corrupting benefits
1.6
The ‘corrupt’ behaviour proposed in the offences is threefold:
improperly performing the duties of an official of a Registered Organisation,
exercising powers or functions under the FWA or Registered Organisations Act improperly,
and giving an advantage of any kind, which would not be legitimately due, to
the employer.
1.7
As drafted, the prohibition on giving an advantage ‘not legitimately
due’ would not have any connection to ‘the affairs of the organisation or
branch’ of the registered organisation, as was recommended by the Heydon Royal
Commission. This limb of the offence appears to have been lifted from the
bribery of foreign officials offence in the Criminal Code, but not
appropriately amended.
1.8
The remedy is to require that the advantage must be ‘in connection with
the affairs of the organisation or branch, including the affairs of the members
of the organisation or branch’.
Recommendation 1
1.9
Labor senators recommend the amendment of proposed subparagraphs
536D(1)(b)(iii) and 536D(2)(b)(iii) to require that an advantage must be ‘in
connection with the affairs of the organisation or branch, including the
affairs of the members of the organisation or branch’.
1.10
The bill would impose no requirement that conduct be engaged in
‘dishonestly’. Instead, it would require that the giving or receiving be
carried out with the intention to influence an officer of a registered
organisation to act ‘improperly’. The bill contains no definition of
‘improperly’, only that it is a matter for the trier of fact. In contrast, the
existing Criminal Code offences of bribing and providing corrupting benefits to
a Commonwealth public official require dishonesty, which is defined.
Recommendation 2
1.11
Labor senators recommend that these proposed new offences be amended so
as to make them consistent with the Criminal Code offences, and to define the term
‘improper’.
1.12
The proposed test for the employer offering or paying a bribe is an
‘intention to influence’ a registered organisation official to act improperly,
while the proposed test for the registered organisation official asking for or receiving
the bribe is an intention that the offeror believes that the official ‘will
tend to be influenced’ to act improperly. The Government's justification for
these different tests is wholly inadequate. Labor senators consider that the
‘tend to influence’ test should be removed, and the relevant provisions be
amended to be consistent with the drafting and penalties of the existing
bribery of Commonwealth officers and corrupting benefits offences in the
Criminal Code (sections 141.1 and 142.1).
Recommendation 3
1.13
Labor senators recommend that proposed paragraph 536D(2)(b) be amended
to remove the proposed 'tend to influence' test, and make it consistent with
the drafting and penalties of the existing bribery of Commonwealth officers and
corrupting benefits offences in the Criminal Code (sections 141.1 and 142.1).
Making cash or in kind
payments to a registered organisation
1.14
The bill would create a strict liability offence, where the giving or
receiving of cash or in kind payments between an employer and registered
organisation is an offence, unless it falls within the enumerated exceptions.
Given that the stated purpose of this offence is to prevent corrupt or
illegitimate payments, the offence should have a fault element of dishonesty.
Recommendation 4
1.15
Labor senators recommend that the proposed new offences in proposed
subsection 536F(1) be amended to include a fault element as a requirement for
the offences to be made out.
1.16
It is not currently clear whether proposed section 536F would make it an
offence for registered organisations to request and receive payment from
employers of wages or entitlements owed to ex-employees. Similarly, that
provision may make it an offence for registered organisations to negotiate the
settlement of disputes with employers before court proceedings are commenced.
Recommendation 5
1.17
Labor senators recommend that registered organisation requests for, and
receipt of, payments from employers of wages or entitlements owed to
ex-employees, and the negotiation and settlement of disputes with employers
before court proceedings are commenced, be enumerated exceptions under proposed
subsection 536F(3).
Disclosure requirements
1.18
The bill would require registered organisations to disclose any
potential benefits from an enterprise agreement that may flow to an extended
and unreasonable number of people and groups. Accordingly, 'related party'
should be defined more tightly than the bill does in its present form.
Recommendation 6
1.19
Labor senators recommend that the definition of 'related party' under
the proposed disclosure requirements be amended to specify the registered
organisation, all branches of the organisation, any entity controlled by the
organisation, and the officers and spouses and other family members of the
organisation or branch of the organisation that is the bargaining
representative.
Conclusion
1.20
Given the flaws in the bill identified by both employer and employee
representatives, the amendments proposed are a reasonable package of
improvements. None of them could be said to thwart the intention of the bill
or to render the offences impotent. On the other hand, they do address some of
the overreach, whether intentional or not, in the drafting of the offences
which have potentially significant consequences for registered organisations
and employers.
Senator Gavin Marshall
Deputy Chair
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