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Game, Setka, match

Aug 6, 2019 • 14m05s

As the Morrison government pushes for legislation to more easily deregister unions, there are questions over timing and the new laws’ real intent.

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Game, Setka, match

51 • Aug 6, 2019

Game, Setka, match

[Theme music]

ELIZABETH:

From Schwartz Media, I’m Elizabeth Kulas. This is 7am.

The Morrison government is pushing for legislation to more easily deregister unions. It argues the new laws are needed to respond to figures like John Setka. Mike Seccombe on the laws already in place and the Coalition’s real intent.

[Theme ends]

Archival tape — John Setka:

“Apart from goin’ to work every day and trying to get home safe. What do they do? They pull us over. On weekends, in unmarked police cars. They prosecute junior officials, they prosecute shop stewards and they prosecute rank and file members.”

Archival tape — Unidentified Man 1:

“This is a bloke that the labour party gives life membership to and holds parades for. This guy shouldn’t have a parade, he should be paraded out of the place.”

Archival tape — Unidentified woman 1:

“...It’s really not surprising, then, that a federal court judge described the CFMMEU as the most recidivist corporate offender in Australian history.”

Archival tape — Unidentified Man 2:

“And you need to look no further than the secretary of the CFMMEU in Victoria, John Setka. He heads up the CFMMEU, the bikey wing of the union movement…”

ELIZABETH:

Mike let's start with John Setka.

MIKE:

Well John Setka is the Victorian state secretary of the Construction Forestry Maritime Mining and Energy union, the CFMMEU.

ELIZABETH:

That Second M always gets me, I've got to say.

MIKE:

Well that's recent. They only recently amalgamated with the Maritime Union of Australia to the annoyance of the government.

ELIZABETH:

Mike Seccombe is The Saturday Paper’s national correspondent.

MIKE:

Setka is currently fighting an attempt by the Labor Party to expel him from the party. He's serving a good behaviour bond after pleading guilty to harassing his wife and breaching a court order. She's apparently forgiven him. And as the Coalition continually reminds the parliament and anyone else who will listen, and they seem to have a script for this: he is a, as they call him, a criminal union boss. He's amassed 59, in their telling, court convictions for a multitude of offences including assaulting police five times, assault by kicking five times, wilful trespass seven times, resisting arrest five times, theft, attempted theft by deception, intent to coerce nine times, and ten charges of coercion.

Archival tape — Unidentified Man 1:

“You’ve been an industrial bully over the years…”

Archival tape — John Setka:

“Well, depends what that means. I mean, if one of my members is being bullied on site, we’ve gotta go down there and protect them. I mean, that’s what we do, that’s what they pay us for.”

MIKE:

So he's a fair sort of a rap sheet.

ELIZABETH:

So beside the rap sheet, I mean probably because of the rap sheet, why else might the government be interested in Setka?

MIKE:

Setka’s, you know, not on his own. His union is fairly lawless, I suppose you would have to say as well. And that's the main reason that the government is giving for its newest round of anti-union or as it's commonly portrayed in the media, union-busting legislation, which is called the Fair Work brackets registered organisations close brackets amendment open brackets ensuring integrity close brackets Bill of 2019. The names of bills are getting increasingly long and also increasingly descriptive, you know? The government's try to put words in there that convey a political message as well as a straight legislative message

Archival tape — Christian Porter:

“There are also, presently, grounds to de-register either an employee or employer organisation…”

MIKE:

Christian Porter, who is now both the Attorney-General and Minister for Industrial Relations, and perhaps the busiest man in the parliament, says the CFMMEU has been ordered to pay four million dollars in court ordered fines in the past financial year alone. The record stretches back a long way. The government clearly wants to pull the reins in on this union and Porter says that this current legislation would be a significant step towards curbing behaviour which he says poses a threat to the rule of law in the Australian workplace.

ELIZABETH:

Okay and so what does that legislation actually mean? If they were to pass it what would it do?

MIKE:

Well they would make it easier for the courts to remove union officials who flout the law. So if you commit a significant criminal offence, you could be disbarred from having a position of power in a union. They would also make it easier to de-register entire unions, or parts of unions, that persistently act unlawfully. Cases where the organisation has ceased to function effectively, so they could whip out the existing union hierarchy and put in an alternative one. Furthermore, the legislation would give the Fair Work Commission the power to veto Union amalgamations if they were deemed not to be in the public interest. We already mentioned the fact that the Maritime Union has been subsumed into the CFMEU. That's the sort of thing the government would like to see ended.

ELIZABETH:

So when the govt talks about unlawful behaviour on the part of the unions, what are they talking about?

MIKE:

Well, anything that breaches current workplace law. I mean, things like seeking access to building sites without approval, trying to strong-arm people into becoming members of the Union, that sort of thing.

ELIZABETH:

And how would that legislation work in practice?

MIKE:

Well if we consider a case study; if we think about nurses, for example under the current system. If the nurses union was negotiating a new agreement with their employers, they can take certain kinds of industrial action, so they could impose bans on performing certain kinds of work as part of the negotiation. If, for example, they were worried about staff patient ratios or something. So they can do that within the protected negotiating period, but if they do it outside the negotiating period, well, at the moment their employer can head off to the courts and apply for an injunction to stop them doing it. If this bill passes, there will be a much tougher avenue open to that employer. They can then go to the courts and try to get the union officials disqualified or in extreme cases get the union itself deregistered, and it's not only employers that can do that. The government and other people who could claim to be stakeholders can also initiate such action. So if the government decides it doesn't want this kind of thing going on in the public hospital system, it could also apply as an interested party and potentially achieve the same outcomes, either disqualifying officials or de-registering the union.

ELIZABETH:

Mike, de-registering the union, is that basically the equivalent of saying that union no longer exists, it's shut down?

MIKE:

Well it's probably more complicated than that, but essentially that's it. It's happened before, it was done with the Builders Labourers Federation under the Hawke government. So yes, it essentially just wipes them off the books.

ELIZABETH:

We’ll be right back.

[Music ends]

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ELIZABETH:

Mike, the Government is pushing for new legislation that would empower it to de-register unions or individual union representatives who break the law. What is the state of unionism in Australia, more broadly?

MIKE:

Well, that's part of the interesting thing about this law, because it seems to be taking a sledgehammer to a walnut quite frankly. Awful as the CFMMEU is, they are by no means typical of unionism in Australia at the moment. In the first place, union power is declining along with union membership. The rate of union membership now is down to just under 15 per cent of the workforce, and in the private sector it's only about 10 per cent. So unions are much less powerful than they once were. It's not only apparent in the numbers, it's apparent also in the kind of industrial outcomes that we see. If you have a look at the rate of wage growth in Australia, for example, wages have not been growing much above inflation for about five or six years now, and that appears to be getting worse. And there are those who would argue that part of the reason for this is that the power of unions to campaign for higher wages has been so eroded in the face of employer and government opposition. So there's been an increasingly hostile legal and regulatory environment and part of the consequence of that is that unions do not have anywhere near the clout when it comes to negotiating pay rises that they once did.

I spoke to Jim Stanford from the Centre for Future Work at the Australia Institute, who takes the view that the government is doing exactly the wrong thing at this point in time, given that everyone up to and including the governor of the Reserve Bank is saying that we need wage rises to stimulate the economy. Stanford's argument is that it's precisely the wrong time to be adopting measures that would further curtail union activity.

Furthermore, he says that he says that he can think of no other country in the industrialised world where a union has to jump through so many hoops in order to take industrial action of any kind. No other country where the government can tell a union and an employer what's legitimate issues to talk about in collective bargaining. No other country where the government has to give permission for a union to reorganise itself or amalgamate. So while the CFMMEU is a rogue union, they're by no means typical.

ELIZABETH:

So what is the typical union member, I mean, there is all this focus on the CFMMEU but as you say, they are closer to an anomaly than anything else.

MIKE:

Well they are. And the fastest growing parts of the workforce of course are the parts that aren't unionised. The areas where unions are still prominent are in the public sector, among people like nurses, teachers. The typical unionists these days is not a large tattooed blue collar bloke, it's probably a middle aged woman working in aged care.

ELIZABETH:

Are those unions militant?

MIKE:

No, no they're not. In fact, if we look at the state of industrial action in the country, the number of days lost to strikes has been in quite steep decline over several decades. It's now down more than 95 per cent compared with the levels of the 1970s and 1980s. So the number of workers involved in disputes is down. And as Jim Stanford points out, a lot of working days lost these days are due to employer lockouts rather than action taken on the union side. So really the problem of industrial lawlessness is nowhere near as dramatic as it's being painted.

ELIZABETH:

But Mike, if we accept that the CFMMEU is a rogue organisation that it is criminal, that it is recalcitrant, would we need this legislation that Porter is proposing in order to control it?

MIKE:

Well, I spoke with Anthony Forsyth, who's a professor of workplace law at RMIT about this, and he makes the point that there are already provisions for this. The propensity of the construction unions to act in defiance of the law goes back a long way and he acknowledges that and points out that the solution that the Howard Government came up with, and which is the case under this government and which was also maintained in somewhat diluted form during the intervening Labor government, was to have a specialist regime of regulation in the construction sector, separate legislations, a separate regulator, the Australian Building and Construction Commission -- the ABCC -- and higher penalties which send a very strong message specific to this sector that disregard for the law won't be tolerated. So in Forsyth’s opinion, the government could move to have the CFMMEU deregistered under current laws.

ELIZABETH:

That law’s an existing law, they could do that already?

MIKE:

They could do it already, he believes, given that the laws now take account of a union's history of non-compliance. It's interesting that the government hasn't done that, but instead it's pushing through with these new laws that would apply across the board and that would seem to suggest that John Setka and the CFMMEU, unattractive as they may, be are not the reason for the proposed legislation, but they're actually an excuse to strip further rights from workers.

ELIZABETH:

And where is the bill now?

Archival tape — Unidentified Man 1:

“Government business…”

MIKE:

It passed the House late last week.

Archival tape — Unidentified Man 1:

“...fair work registered organisations amendment…”

[Music starts]

MIKE:

It won't be voted on in the Senate before October and it's going off to have a parliamentary inquiry in the meantime. And in the meantime, of course, both sides of the argument will be doing their best to convince the various members that the crossbench in the Senate that they should look at it very closely and vote one way or the other. Labor and the Greens are opposed. The government is in favour. So it will come down to people like Jacqui Lambie, the centre alliance, and Pauline Hanson's people. And at this stage it's very line ball.

ELIZABETH:

Thanks so much Mike.

MIKE:

It's a pleasure.

[Music ends]

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[Theme music]

ELIZABETH:

Elsewhere in the news:

United States Democrats are calling for an emergency sitting of congress to debate gun control legislation after the second mass shooting in as many days. Following a shooting in El Paso, Texas, where at least 20 people were killed, a lone gunman opened fired in Dayton, Ohio, killing nine and wounding 26 others. Democratic presidential candidates Bernie Sanders and Beto O'Rourke have both linked the shootings to Donald Trump's rhetoric on race and nationalism. Both shooters were white men.

And Kerry Robertson, a 61-year-old grandmother, has become the first person in Victoria to chose to end her life under the state's voluntary assisted dying legislation. She had terminal cancer. The laws came into effect on June 19th and allow adults with less than six months to live and who meet strict eligibility criteria to access to lethal drugs.

This is 7am. I’m Elizabeth Kulas. See you Wednesday.

[Theme ends]

The Morrison government is pushing for legislation to more easily deregister unions. It argues the new laws are needed to respond to figures such as John Setka. Mike Seccombe on the laws already in place and the Coalition’s real intent.

Guest: National correspondent for The Saturday Paper Mike Seccombe.

Background reading:

Coalition bets anti-union bill on Setka rebuke in The Saturday Paper
The Saturday Paper
The Monthly

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7am is hosted by Elizabeth Kulas. The show is produced by Emile Klein, Ruby Schwartz and Atticus Bastow. Our editor is Erik Jensen. Our theme music is by Ned Beckley and Josh Hogan of Envelope Audio.

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51: Game, Setka, match