agenda pg. 1 PRELIMINARIES Venue The meeting will be held in the Boardroom of the Master Builders Association of New South Wales, 52 Parramatta Road, Forest Lodge, beginning at 8.30 am. 1.0 ATTENDANCE 2.0 APOLOGIES 3.0 CONFIRMATION OF PREVIOUS MINUTES 4.0 BUSINESS ARISING FROM PREVIOUS MINUTES INDUSTRIAL RELATIONS 4.1 INTEGRITY BILL PASSES HOUSE – INTRODUCED TO SENATE SUMMARY The Federal Government's "Ensuring Integrity" legislation has passed the lower house, after IR Minister Christian Porter sought to "correct the record" on claims put by opponents of the Bill. REPORT The Committee is advised that The Minister told Parliament that "a number of things" had been said about the Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 that are "worthy of significant correction", starting with the matter of "standing" to initiate proceedings to remove union officials from office or deregister an organisation. He claimed that such formulations for standing had been a feature of IR legislation going back to 1904. As for the Minister having standing to make such claims, "it is already the case, under the existing provisions of the Registered Organisations Act, that the Minister has standing to make an application for cancellation of the registration of a registered organisation – and that surely accords with common sense.
Transcript
agenda
pg. 1
PRELIMINARIES
Venue
The meeting will be held in the Boardroom of the Master Builders Association of New South
Wales, 52 Parramatta Road, Forest Lodge, beginning at 8.30 am.
1.0 ATTENDANCE
2.0 APOLOGIES
3.0 CONFIRMATION OF PREVIOUS MINUTES
4.0 BUSINESS ARISING FROM PREVIOUS MINUTES
INDUSTRIAL RELATIONS
4.1 INTEGRITY BILL PASSES HOUSE – INTRODUCED TO SENATE
SUMMARY
The Federal Government's "Ensuring Integrity" legislation has passed the lower house,
after IR Minister Christian Porter sought to "correct the record" on claims put by
opponents of the Bill.
REPORT
The Committee is advised that The Minister told Parliament that "a number of things"
had been said about the Fair Work (Registered Organisations) Amendment (Ensuring
Integrity) Bill 2019 that are "worthy of significant correction", starting with the matter of
"standing" to initiate proceedings to remove union officials from office or deregister an
organisation.
He claimed that such formulations for standing had been a feature of IR legislation
going back to 1904.
As for the Minister having standing to make such claims, "it is already the case, under
the existing provisions of the Registered Organisations Act, that the Minister has
standing to make an application for cancellation of the registration of a registered
organisation – and that surely accords with common sense.
agenda
pg. 2
"That has been a longstanding provision in this legislation dating back to 1977.
"So the use of that as a reason to oppose the bill is unfounded," the Minister said.
He also defended the use of the term "person with a sufficient interest" for those
seeking to deregister unions or remove officials, noting that then IR Minister Bill Shorten
used it when he sought that the HSU East Branch be put into administration in 2012.
After the House passed the legislation, the Government introduced it to the Senate.
The Senate had already referred the legislation to an inquiry that is due to report by 25
October 2019.
Meanwhile, a Coalition-dominated lower house human rights committee has repeated its
earlier criticisms of the "integrity" legislation.
RECOMMENDATION
The Committee note the Report.
ATTACHMENT
Nil
WORK HEALTH AND SAFETY
4.2 2019 REVIEW OF THE DUST DISEASES SCHEME
SUMMARY
The NSW Legislative Council's Standing Committee on Law and Justice has sort
submissions from interested parties into the 2019 Review of the Dust Diseases scheme
REPORT
The Committee was previously advised that the 2019 review will focus on the response
to silicosis in the manufactured stone industry in New South Wales.
The Committee is advised that Master Builders NSW has provided a submission to the
NSW Legislative Council’s Standing Committee on Law and Justice on reviewing the Dust
Diseases Scheme.
The MBA NSW submission contains a number of important Recommendations to the
Committee on the monitoring and use of crystalline silica in the workplace.
A copy of the submission is attached to the Agenda.
RECOMMENDATION
The Committee recommends that:
“MBA NSW support the Submission to the NSW State Government on 2019 Review of
the Dust Diseases Scheme submitted by MBA NSW.”
ATTACHMENT
Attachment #1
agenda
pg. 3
5.0 NEW BUSINESS
INDUSTRIAL RELATIONS
5.1 “INTEGRITY” LEGISLATION FLOUTS INTERNATIONAL LABOUR STANDARDS
SUMMARY
New analysis warns the Morrison Government that it will breach two key ILO conventions
if it proceeds with its revived legislation to make it easier to deregister unions and
disqualify their officials.
REPORT
The Committee is advised that research by the UK-based International Centre for Trade
Union Rights has landed as the government and unions are lobbying key Senate
crossbenchers over the Fair Work (Registered Organisations) Amendment (Ensuring
Integrity) Bill 2019.
The paper, by the ICTUR's director Daniel Blackburn and researcher Ciaran Cross on
behalf of the ACTU says the Bill would allow the Minister, the ROC and any person "with
sufficient interest" – which could include employer groups and lobbyists – to seek to
have union officers disqualified or unions deregistered.
It says these provisions are "incompatible with Australia’s commitments" under the
ILO’s Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
In particular, the report cites Articles 2 and 3 of Convention 87 which deal with workers'
rights to establish their own organisations and to draw up their own rules and elect their
own officials.
It says the legislation conflates serious crimes and minor legal infractions, blurs joint
and individual liabilities, and establishes "punitive sanctions that are both
disproportionate and arbitrarily directed".
It argues the criminal law should apply without special dispensation for unions, but the
Integrity Bill allows for disqualification of officials and deregistration of unions for
"designated offences" which include relatively minor breaches of industrial law.
The report notes that the standards for disqualification from office are stricter than
those applying to Federal MPs, who are barred from nominating as candidates if serving
a prison sentence of 12 months or more.
It argues that allowing persons with "sufficient interest" to apply for disqualification of
officials and for deregistration of unions is not "a recipe for industrial peace."
"In operation it turns the current system of registration into one under which the basic
purpose of freedom of association – which should be guaranteed without restriction or
impairment – may be severely curtailed on minor grounds, at the initiation of employers
or other parties hostile to organised labour.
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pg. 4
"This creates instability and unpredictability in industrial relations and such an outcome
is unlikely to benefit even those who are advocating it.
"Deregistered unions are unlikely to roll over and die – a fact to which Australia’s own
historical experiences with deregistration can testify.
"On the contrary, such measures are likely to exacerbate conflicts over industrial and
employment policies.
Overall, the report says the Bill is even more oppressive than Turkey's labour laws and
"invites comparisons with the regulations deployed by repressive regimes."
It also compares the proposed legislation to laws introduced by a Brazilian dictatorship
in the 1940s that was "probably the closest [to the Integrity Bill] of all those we
considered".
"For Australia to propose an industrial law reform that would bring it closer to the
example provided by Brazil’s historical dictatorship than to those found in modern
Western Europe illustrates just how alarming these developments are.
"The proposal is not merely 'out of step' with the industrial relations systems of
comparable countries; it has no rightful place in a modern liberal democracy."
ACTU president Michele O'Neil says Australia already has one of the most restrictive
regimes of regulations on workers’ organisations among democratic nations.
"This extreme new law would align Australia with authoritarian, undemocratic countries,"
she said.
IR Minister Christian Porter has argued that the 2019 Bill introduces new and
streamlined cancellation grounds to deal with registered organisations that are closer to
the law relating to companies and company officers under the Corporations Act.
These changes have been made to an earlier Bill – which was introduced in 2017 but
not passed before this year's federal election – after it failed to win crossbench support.
Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019,
Research paper by the International Centre for Trade Union Rights, on behalf of the
Australian Council of Trade Unions, by Daniel Blackburn and Ciaran Cross – July 2019.
EM says Bill "reasonable and proportionate" on rights
The 2019 Bill's explanatory memorandum maintains that the changes do not affect the
rights of workers to continue to be represented because an "organisation that obeys the
law and complies with its rules is not at risk of having its registration cancelled".
The EM says that the Federal Court can make alternative, lesser orders to disqualifying
an official or deregistering a union.
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pg. 5
"Providing for the possibility of disqualification from office and restricting who can be
elected to office, in circumstances where a ground for disqualification has been made
out and the Federal Court considers disqualification just, is a rational means of ensuring
greater compliance with the standards of conduct reasonably expected of officers, and a
rational method for improving governance of organisations more generally."
"Any limitations on the capacity of registered organisations to regulate their affairs as
they see fit are a necessary and proportionate means of ensuring greater compliance
with the standards of conduct reasonably expected of officers and improving the
governance of registered organisations," it says.
"These are reasonable and proportionate methods of ensuring that officials who
deliberately disobey the law are restricted in their ability to be in charge of registered
organisation.
"It is also necessary and proportionate that the sanction of disqualification for a
substantial number of members’ failure to comply with core industrial laws is placed on
officials as it is incumbent on those in leadership positions to promote a culture of
compliance.
"This will serve to protect the interests of members and support public order by ensuring
the leadership of registered organisations act lawfully."
The EM says that article 8(1) of ILO Convention 87 specifically provides that, in
exercising the rights to freedom of association, workers, employers and their respective
organisations shall respect the law of the land.
"Choosing to register under the Act is a privilege governed by the existing Act.
"Organisations registered under the Act do not currently have freedom to conduct their
affairs in any way they see fit, but are bound by the Act.
"When organisations or their officers deliberately breach the Act then there must be an
effective sanction if the system of registration is to remain meaningful. In the case of a
registered organisation, the sanction could include losing the right to expand through
amalgamation, being placed into administration, or losing registration.
"Consistent with the existing structure for the registration of industrial associations, the
Bill makes clear that there is a framework within which registered organisations must
operate."
The legislation has been referred to a Senate Inquiry.
The Committee will be kept informed of the Bill’s passing.
RECOMMENDATION
The Committee note the Report.
ATTACHMENT
Attachment #2
Attachment #3
agenda
pg. 6
5.2 ETU READIES FOR ACTION OVER UNDERPAID CASUALS
SUMMARY
The ETU's newly re-elected leadership has reaffirmed its commitment to pursue
underpayments to long-term casuals, vowing to conduct a targeted national program of
timesheet and wage record inspections to build its case.
REPORT
The Committee is advised that the ETU assistant national secretary Michael Wright said
that thousands of workers are owed back payments in the wake of the Skene decision,
in which a full Federal Court held that a long-term casual was an employee entitled to
annual leave payments.
Earlier this year, the union established a campaign website calling for casual workers to
register if they had been engaged in regular, systematic and predictable rosters.
Wright said that workers engaged as casuals are more vulnerable than other workers –
being effectively "sacked" after completing each shift – and this raised difficulties in
gathering evidence to support legal claims for back payment.
"It has a chilling effect on people being willing to give affidavits and other evidence," he
told Workplace Express.
"We're looking for people working regular, systematic and predictable shifts.
"There's nothing casual about those workers being flown into a remote mine site in WA."
Wright said that inspecting time sheets and wage records would allow a "safety in
numbers" approach and the union would not run a case "if our members say 'Don't'."
He said that class actions could be a "useful tool" in different situations, such as the
Queensland coal mining industry, which has thousands of casual and labour hire
workers.
However, companies and contractors operating with FIFO arrangements and remote
construction projects might only have 30 to 40 employees each.
In a separate development, the ETU says it will seek to roll out across the NSW
construction sector the pay and conditions included in a new deal struck last month
covering the NorthConnex tunnel project in Sydney's north.
Recently approved by Commissioner Bissett, the Fredon NorthConnex and CEPU Project
Agreement will run from late July until a nominal expiry date of September next year and
includes pay rises of about 5.4% for a grade 5 worker.
It includes back pay to January 1, plus a $3.75 per hour site allowance, a $2 per hour
productivity allowance and improved travel time arrangements.
agenda
pg. 7
The agreement also includes apprentice rates for directly-hired apprentices, with first-
years paid between 50% and 55% of the grade 5 pay rate, rising to 82% for fourth years.
RECOMMENDATION
The Committee note the Report.
ATTACHMENT
Nil
5.3 NEW SOUTH WALES SECURITY OF PAYMENT CHANGES
SUMMARY
The NSW State Government has announced that the latest round of security of payment
reforms will commence on 21 October 2019.
REPORT
The Committee is advised that in 2018, the NSW State Government enacted the
Building and Construction Industry Security of Payment Amendment Act 2018 (NSW)
(Amendment Act), which was to commence on a date to be fixed. The New South Wales
government has now announced that the Amendment Act will commence on 21 October
2019.
The Amendment Act introduces a number of significant reforms to security of payment in
New South Wales, including:
Abolition of the concept of 'reference dates'. Under the Amendment
Act, the most significant change is the removal of the 'reference date'
concept, with progress payment and payment claim provisions being
simplified. A claimant has a default entitlement to serve a payment claim
on and from the last day of the month in which construction work was
first carried out (or related goods and services first supplied), and then
on and from the last day of each subsequent month. If a construction
contract provides for an earlier date for the serving of a payment claim in
a particular month, the claimant may serve the payment claim on and
from that date;
Re-introduction of the endorsement. The Amendment Act re-introduces
the requirement that payment claims must expressly state that they are
made under the Building and Construction Industry Security of Payment
Act 1999 (NSW);
Shorter subcontract payment terms. The Amendment Act shortens the
maximum payment period for payments from a head contractor to a
subcontractor, from 30 business days to 20 business days after the date
of the payment claim;
Payment claims following termination. Where a construction contract
has been terminated, the Amendment Act introduces a statutory
entitlement for a claimant to serve a payment claim on and from the date
of termination. This amendment will overcome all court decisions to the
contrary.
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pg. 8
Withdrawal of adjudication application. The Amendment Act introduces
a right for a claimant to withdraw an adjudication application. However, a
claimant will not be able to withdraw an adjudication application if the
respondent objects to the withdrawal and the adjudicator considers that
it is 'in the interests of justice' to uphold the objection.
Severance of an adjudication determination. The Amendment Act
expressly provides that, if upon a review of an adjudication
determination, the Supreme Court finds that part of the adjudication
determination is affected by jurisdictional error, the Supreme Court can
set aside only that part of the adjudication determination. This avoids the
instance of a jurisdictional error in only part of an adjudication
determination affecting the enforceability of the entire determination.
The New South Wales government has also made a new amending regulation,
the Building and Construction Industry Security of Payment Amendment Regulation
2019 (NSW). Among else, this amending regulation specifies:
the offences for which penalty notices may be issued; and
the executive liability offences, which is where individuals may be liable
for offences committed by a corporation (broadly, these are offences
which relate to the obligations to keep trust accounts for retention
money).
RECOMMENDATION
The Committee note the Report.
ATTACHMENT
Attachment #4
Attachment #5
5.4 SUPPORTERS PAY CFMMEU OFFICIALS’ PERSONAL PENALTIES
SUMMARY
Supporters of the CFMMEU have kicked-in $20,000 to pay personal fines imposed on
two officials.
REPORT
The Committee is advised that an online crowd-funding appeal, authorised by Victorian
Trade Hall Council secretary Luke Hilakari, raised the money to pay the personal
penalties levied on CFMMEU Construction and General Division Victorian Branch
organisers Stephen Long and Drew MacDonald in the Qanstruct case.
The Federal Court made personal payment orders (PPOs) against Long ($11,500) and
Drew MacDonald ($7,800) for entry rights and adverse action breaches, while also
imposing fines of $100,000 on the union.
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pg. 9
Justice Mordy Bromberg barred the organisers from receiving money or financial
benefits from the union to pay the fines, but did not bar public fundraising that did not
involve the union or its resources.
In February, the VTHC said it raised $44,000 in four days to pay the fine of another
CFMMEU official, Joseph Myles, who received a PPO in separate legal proceedings.
The latest fundraising effort featured in discussion on a weekly community radio show,
Concrete Gang, which is presented by the Victorian Branch.
One host said: "It's something we've got to get used to, as rank-and-filers and community
members, because these fines are going to continue. . . we don’t want it to be the same
people all the time. We're going to have to share the burden."
Another host said the fundraising efforts gave "other officials confidence" that the
community supported them on the job, while sending a similar message to the Federal
Government.
According to the ABCC, PPO’s are currently being sought against 33 CFMMEU
representatives in 14 cases.
The courts have made four PPO’s so far – two against CFMMEU official Joseph Myles
and one each against Long and MacDonald.
The ABCC has a number of prosecutions afoot in which individual workers are named as
defendants, along with CFMMEU officials and the union.
These include cases in Victoria, Queensland and Western Australia.
One involves an alleged walk-off in Brisbane after workers complained about employers
taking down CFMMEU flags (Brisbane) and an alleged walk-out and picket in Perth over
redundancy payments.
The construction watchdog has launched civil prosecutions of 53 Melbourne workers
from Liberty OneSteel for allegedly taking unlawful industrial action during the last
national union rallies in October 2018.
An ABCC spokesperson said the regulator is not currently seeking personal payment
orders against individual workers.
"It will be up to the courts to determine whether any individual worker is penalised if
their actions are proven to be unlawful.
"The ABCC has not made any application that the workers be personally liable for the
payment of their penalties."
The CFMMEU declined to comment.
The Committee is also advised that fines imposed on individual workers arising from
ABCC prosecutions – as opposed to personal payments orders - are generally paid by
the CFMMEU.
agenda
pg. 10
RECOMMENDATION
The Committee note the Report.
ATTACHMENT
Nil
5.5 NEAR RECORD NUMBERS COVERED BY MARCH QUARTER AGREEMENTS
SUMMARY
Bargained private sector pay rises remained below 3% in the March quarter, but the
number of employees covered in the period rebounded to near-record levels, according
to new Attorney-General's Department data released.
REPORT
The Committee is advised that the Attorney-General’s Department Trends in Federal
Enterprise Bargaining Report shows that the 1,256 private sector agreements endorsed
in the March quarter provided an average annualised wage increase (AAWI) of 2.9% to
284,600 employees over 3.2 years.
The 2.9% private sector quantum is the same as that for the December quarter last
year, but down from 3% in the September quarter.
However, the latest quarter delivered a rebound in private sector agreement numbers,
which are at the highest level since the December quarter of 2016.
Meanwhile, the number of employees covered by March quarter private sector deals is
the second-highest of any quarter since the official start of enterprise bargaining in
1991.
The number covered in the March quarter was only exceeded by the 364,100 under
deals approved in the December quarter of 2012.
Large private sector agreement deals approved in the quarter included the Victorian
