Royal commission proposes major attack despite its weak findings

Twenty-one months ago, Tony Abbott handpicked his man. He gave retired High Court judge Dyson Heydon the task of finding whatever muck he could in any corner of Australia’s trade union movement and dredging it up into the public arena.

At a cost so far of at least $50 million (a figure that will rise), the Royal Commission into Trade Union Governance and Corruption delivered its final report on 28 December. Among its more than 4,000 pages are 79 recommendations for law or regulatory change and the referral of 45 individuals, companies or other bodies for further investigation.

Given a very wide remit, unencumbered by the ordinary rules of process or evidence and with a troop of barristers, solicitors and police working “tirelessly” under his direction, the final report should have been arch-conservative commissioner Heydon’s crowning glory.

Instead, the product of 189 days of hearings – the equivalent, Heydon himself calculated, of a nine-month criminal trial – evidence from 505 witnesses and more than 2,000 notices to produce documents, is something else entirely.

It opens with a few paragraphs of creative writing about “louts” and “thieves” (media-grab fodder that was duly swallowed and spewed up in newspaper headlines across the country). Then there are reams and reams about a handful of cases of comparatively small-scale credit card misuse and embezzlement, mixed in with a fair amount of disingenuous hand-wringing about some of the sell-out deals done by the grubby and widely reviled Australian Workers Union.

 “You can look at any unionised industry. You can look at any type of industrial union. You can select any period of time. You can take any rank of officeholder, from Secretaries down to very junior employees. You can search for any type of misbehaviour. You will find rich examples over the last 23 years in the Australian trade union movement”, Heydon wrote in the preamble to his report.

If that’s the case, prime minister Malcolm Turnbull might reasonably ask the government’s $1 million commissioner, “Why, sir, didn’t you?”

Of the 45 referrals made by the royal commission, 24 are to the police. Fourteen of these are current or former union officials. The rest are company executives or corporations. Hardly a devastating hit rate if you consider that the commission had one job only – get the unions.

A fraction of these referrals might result in charges. Disgraced and crooked former Health Services Union official Kathy Jackson may well find extra charges added to her growing stock of legal problems. Jackson, though, was a one-time star witness of the commission, and not the scalp Heydon or the government wanted. Most of the referrals to police will go nowhere much, so flimsy are the claims of criminal malfeasance.

The rest of the referrals are to the Fair Work Commission and the construction industry regulator. They will consider whether particular union officials tried to coerce or induce people to join the union or breached various civil obligations under the laws regulating unions. From the government’s perspective, it all falls far short of the knockout blow it had hoped Heydon would deliver.

Tightening the noose

A paucity of credible evidence of widespread misconduct in the unions notwithstanding, the commission hasn’t let the last two years entirely go to waste. It has made a swathe of recommendations for law changes that constitute a serious attack on union independence, democracy and workplace health and safety.

The report recommends the establishment of a new national body with broad investigative powers to oversee the “registration, deregistration and regulation” of unions.

It calls for the state to be handed sweeping powers to veto and disqualify union officials, elected or otherwise, from holding any union position. For the CFMEU, it recommends parliament consider passing “special legislation” to immediately disqualify some current officials from holding office.

The mere suggestion by the commission that the government be given the right to determine trade union leadership is extraordinary. If any such recommendation were to become law, Australia – already on the list of consistent violators of international labour standards because of its major restrictions on the right to strike – would graduate to the list of fully fledged rogue states alongside countries such as Nigeria, Guatemala and China.

Heydon calls for an across the board jump in penalties for “illegal” union activities. The report recommends that fines for industrial action taken without the Fair Work Commission’s approval increase from $10,800 for an individual to $36,000, and to $180,000 for an organisation. With penalties to apply to each apparent “offence”, fines could quickly mount to a size that would ruin an individual and cripple an organisation.

He also calls for the creation of new industrial action offences and a clarification that pickets are illegal industrial action subject to significant penalty. He also wants rules prohibiting unions from paying fines levied against members or officials.

One of the most basic tools of union organising and the protection of safety standards – the right of union reps to enter a workplace – comes under particular attack by the commission. While Heydon expresses sympathy with the idea of scrapping union rights of entry entirely, he stops just short of this.

Instead, he recommends increasing the maximum fine for breaches of the right of entry provision of the Fair Work Act from $50,000 to $180,000. He wants the same fines to apply to breaches of the right of entry provisions of the health and safety laws. If union reps step into a workplace without the right permit, at the wrong time, with too many people, or walk into the wrong part of the site, they could be up for $180,000.

The report also recommends making it more difficult for unions to get and keep the permits they need to get on site and limiting unions’ ability to get into a workplace to investigate safety breaches.

Taken together, the recommendations are a plan to tighten significantly the regulatory strangulation of our unions’ organising and fighting capacity.

The question now is which of the recommendations the government will be able to get through parliament. While the findings of the royal commission haven’t given it all the political ammunition it wanted, the Australian ruling class is not yet giving up on this opportunity to make significant gains. 

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Steph Price will be speaking on royal commissions and the union movement at Marxism 2016 MarxismConference.org