Bills

Fair Work (Registered Associations) Amendment Bill

Second Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Local Government, Minister for Veterans Affairs) (19:46): I move:

That this bill be now read a second time.

I am pleased to introduce the Fair Work (Registered Associations) Amendment Bill 2024 to the house. The Malinauskas government has strongly supported the federal Labor government's decision to place the CFMEU into administration following disturbing reports of criminal misconduct within the Construction and General Division. Using the force of the law to place an organisation into administration is an extraordinary act, and not one that we wish necessarily to become more common.

However, the need for decisive action in relation to the Construction and General Division has been reinforced by Geoffrey Watson SC's independent investigation into the activities of the Victorian branch. Mr Watson was initially engaged to conduct the investigation by CFMEU National Secretary Zach Smith, and that investigation has continued under the appointed administration of Mark Irving KC. Mr Watson has found that the Victorian branch is 'caught in a cycle of lawlessness where violence was an accepted part of the culture,' and has been infiltrated by bikie and organised crime figures.

The state government is not aware of any evidence that these criminal links have extended to the Construction and General Division's operations here in South Australia, and that is supported by the findings of the Commissioner of South Australia Police following his own look at this matter. However, as long as the South Australian branch remains under the functional control of Victoria, it is untenable for South Australia to be excluded from the current federal administration.

Building and construction is one of the most dangerous industries in Australia and, just like every other worker in our society, construction workers deserve to have access to a strong trade union that stands up for their health and safety and advocates for fair wages and conditions. However, Victorian control over the SA branch has been a failed experiment. South Australian construction workers have not been well served by the influence of people like John Setka, who embodies the most irresponsible elements of our union movement.

Those workers deserve a union that is free of corruption and violence, and which is not associated with the criminal behaviour of any outlaw motorcycle gang. That kind of behaviour has not only been condemned across the political spectrum, it has been condemned by the mainstream Australian trade union movement. Figures like the ACTU Secretary, Sally McManus, have been firm that there is no place for corruption or criminality in the organisations workers rely on to protect their interests.

Our South Australian government has been very clear that we want to see the SA branch of the CFMEU returned to responsible local South Australian leadership and free of Victorian control. Once that occurs, we hope to see the SA branch back on its own two feet and released from administration as soon as is appropriate. South Australian workers and businesses alike have been well served by the harmony we have seen in our state's industrial landscape. The return of the South Australian branch of the CFMEU to local leadership is the best outcome to support that balance.

Turning to the substance of this bill, following the passage of the federal administration legislation the federal government has recommended that jurisdictions with their own registered counterparts of the CFMEU take complementary action to ensure the administration of the Construction and General Division is effective. This is necessary to safeguard against two avenues by which elements of the CFMEU may attempt to evade federal administration.

The first is by shifting assets and personnel from the federally registered union to its state-registered counterpart, out of reach of the federal administrator. The second is for officials of the union to attempt to operate in an entirely unregulated capacity outside of the established legal framework of the industrial relations system.

Legislation has already been introduced in Queensland, New South Wales and Victoria in relation to their state-registered counterparts. This bill will make similar amendments to ensure the integrity of the federal administration in South Australia.

In South Australia, there is a counterpart to the CFMEU registered under our state industrial relations system, known as the Australian Building and Construction Workers' Federation (ABCWF). The bill inserts part 3A of the Fair Work Act 1994 to enable the federal administration of the CFMEU to be extended to the ABCWF if that is necessary. These provisions permit the federal administrator to apply to the minister to place the ABCWF into administration—for example, if evidence comes to light that there has been an improper transfer of assets or personnel to the organisation. The minister must place the union into administration if requested by publishing a notice in the Gazette.

The federal administrator is then automatically appointed as the administrator of the ABCWF and is conferred with the same functions and powers in respect of the ABCWF as they have in respect of the administration of the CFMEU under the federal act. Importantly, the administrator is required to act in the best interests of the members of the ABCWF when exercising their functions and powers. If necessary, regulations can be made to supplement or modify those functions and powers inherited from the federal scheme. The minister may also appoint a different person as the administrator if necessary—for example, if there is a conflict between the federal administrator's duties to members of the ABCWF and their duties to members of the CFMEU.

The bill provides for a maximum penalty of $100,000 for persons who engage in conduct without reasonable excuse that prevents the effective administration of the ABCWF. These provisions only apply to the extent the Construction and General Division of the CFMEU is in administration under the commonwealth Fair Work (Registered Organisations) Act 2009 in respect of its operations in South Australia.

This means that if the South Australian branch of the CFMEU is released from administration, no application for administration of the ABCWF can be made and any administration in effect at that time will cease. This is consistent with the government's support for the South Australian branch to be detached from Victorian control and returned to local leadership so it can be released from administration as soon as appropriate.

The bill also amends the Fair Work Act 1994 to encourage representation by registered associations and to prevent unregistered associations and their officials from purporting to exercise the functions and powers of registered trade unions. This provides an important safeguard against officers or employees of the CFMEU or the ABCWF attempting to evade administration by operating in an unregistered capacity outside the reach of industrial law.

The bill inserts a new object of the act to encourage representation by registered associations. The bill clarifies that various functions and powers of industrial associations under the act may only be exercised by associations that are registered and therefore subject to the obligations which come with registration, including transparency requirements, supervision by the South Australian Employment Tribunal, and potential deregistration for improper or oppressive conduct. This includes functions and powers such as rights of entry, the right to commence legal proceedings in the SAET on behalf of members, and the right to act as a representative of a party in proceedings before the SAET as a non-legally qualified union official.

The bill also inserts part 3B of the act to enable SAET to make orders in relation to unregistered associations. These include orders to restrain an association from holding out membership on the basis of representing workers in matters before SAET or from acting as a representative of a person or group of persons in proceedings before SAET. Part 3B also includes penalties for unregistered associations that make false or misleading representations about their right to represent the industrial interests of employees under the act. This will strengthen SAET's capacity to uphold the integrity of the registration scheme under the act by preventing unregistered associations from evading or undermining that scheme by purporting to exercise the functions and powers of a registered association.

The bill also makes amendments to the process for federally based associations, which are already registered under the commonwealth Fair Work (Registered Organisations) Act 2009 to be recognised as a registered association in the state industrial relations system. There are several associations of this kind, which have been active representing members—in the public sector, for example—for many years and whose current exercise of functions and powers under this act would otherwise be affected by the amendments in this bill.

The bill streamlines the registration process for existing federally registered associations, acknowledging they have already gone through an extensive process to become registered under the Fair Work (Registered Organisations) Act 2009 and are already subject to strict reporting and compliance conditions in the federal system. These amendments will encourage federally registered associations with members in the state system to register under the act without the need to relitigate the registration process that has already occurred federally. Registration will mean those associations will be subject to the same obligations as other state-registered associations, including supervision by the SAET and, importantly, the potential for deregistration.

The bill also includes several technical provisions to deal with demarcation disputes between state and federally registered counterparts of the same association and to ensure that existing federally registered associations can only seek state registrations if they are entitled under their rules to represent South Australian workers. A consequential amendment is made to the South Australian Employment Tribunal Act 2014 to clarify that only officers and employees of registered associations may act as representatives in the SAET without requiring leave of the tribunal.

The bill also amends the maximum term of an enterprise agreement in the state industrial relations system to four years. This brings South Australia into line with the maximum term of an agreement in most jurisdictions around the country, including the national industrial relations system covering private sector employers as well as the systems that apply to the commonwealth, Queensland, Victoria, ACT and Northern Territory governments. The four-year period represents a maximum term only, and the length of enterprise agreement is ultimately a matter for negotiation between an employer and their employees during the enterprise bargaining process.

I note in the Legislative Council an amendment to the bill was successfully moved by the Hon. Tammy Franks and not opposed by the government, providing for a review of these amendments by the Parliamentary Committee on Occupational Safety, Rehabilitation and Compensation after three years of operation. That review will provide an appropriate opportunity to consider the effectiveness of these amendments and whether any further reform is necessary. I conclude by commending the bill to the house and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Fair Work Act 1994

3—Amendment of section 3—Objects of Act

This clause inserts a new object of the Act that states: 'to encourage representation of employees and employers by registered associations'.

4—Amendment of section 4—Interpretation

This clause amends section 4 of the principal Act to provide for a definition of unregistered association.

5—Amendment of section 18—Advertisement of applications

This clause amends section 18 of the principal Act to ensure that SAET is satisfied that reasonable notice of an application involving a demarcation dispute between associations representing employees has been given.

6—Amendment of section 25—Representation

This clause amends section 25 of the Act to substitute references to an industrial association with references to a registered association. The proposed amendment also provides that the Tribunal must not give leave for a person to appear as a representative in proceedings before the Tribunal if the grant of leave would be contrary to an order made under section 136H or an order made in settlement of an industrial dispute.

7—Amendment of section 32—Who may make a claim

This clause amends section 32 of the principal Act to substitute a reference to an association with a reference to a registered association.

8—Amendment of section 77—Form and content of enterprise agreement

This clause amends section 77 of the principal Act to substitute a reference to an association with a reference to a registered association.

9—Amendment of section 83—Duration of enterprise agreement

This clause amends section 83 of the principal Act to change the maximum term of an enterprise agreement from 3 years to 4 years.

10—Amendment of section 120—Application for registration

This clause amends the notice requirements in respect of an application for registration.

11—Substitution of section 131

This clause substitutes section 131.

131—Eligibility for registration

This clause provides for the eligibility of associations to be registered.

12—Amendment of section 132—Application for registration

This clause amends the notice requirements in respect of an application for registration.

13—Amendment of section 134—Registration

This clause makes changes to section 134 of the principal Act so that SAET must register an association if satisfied of certain matters.

14—Insertion of Chapter 4 Parts 3A and 3B

This clause inserts new Chapter 4 Parts 3A and 3B into the principal Act.

Part 3A—Extension of Federal administration of CFMEU

136A—Interpretation

The proposed section inserts definitions.

136B—Application by Federal administrator of CFMEU

The proposed section facilitates the placing of ABCWF into administration.

136C—Effect of administration of ABCWF

The proposed section sets out the effect of placing ABCWF into administration.

136D—Administrator not liable in civil proceedings

The proposed section provides for a civil liability provision for the benefit of an administrator, or person acting under the direction of an administrator.

136E—Regulations under this Part

The proposed section provides for the power to make regulations.

136F—Cessation of administration

The proposed section provides for the cessation of the administration of ABCWF.

136G—Anti-avoidance

The proposed section creates an offence provision where a person, without reasonable excuse, engages in conduct or a course of conduct and as a result of that conduct or course of conduct, another person or body is prevented from taking action under an administration or the administrator is prevented from effectively administering ABCWF.

Part 3B—Orders in relation to unregistered associations

136H—Power for SAET to make orders in relation to unregistered associations

The proposed section provides that SAET (constituted as the industrial relations commission) may make certain orders to encourage representation of employees and employers by registered associations.

136I—Misrepresentations by unregistered associations and agents

The proposed section provides for offence provisions where an unregistered association or an officer, employee or agent of an unregistered association make false or misleading representations about the right of the individual or the association to represent the industrial interests of employees under the principal Act.

15—Amendment of section 140—Powers of officials of employee associations

This clause amends section 140 of the principal Act to substitute a reference to an association with a reference to a registered association.

16—Insertion of section 144A

This clause inserts proposed section 144A into the principal Act.

144A—Demarcation agreements etc

The proposed section provides for the effect of a demarcation agreement operating between associations. It also provides that SAET must give preference to the right of a locally based association to represent the industrial interests of employees if there is a demarcation dispute between a locally based association and a Federally based association that is a Federal counterpart of the locally based association.

17—Amendment of section 147—Exercise of powers of SAET

This clause amends section 147 of the principal Act to exclude Parts 3A and 3B (as inserted by clause 14) of Chapter 4 of the principal Act from the statement that the powers of SAET under Chapter 4 will be exercised by the Registrar.

18—Review of Act

This clause inserts a provision to provide for a review of the operation and impact of the amendments to the Fair Work Act 1994 made by the Fair Work (Registered Associations) Amendment Act 2024. The review and a report on the outcome of the review is to be conducted by the Parliamentary Committee on Occupational Safety Rehabilitation and Compensation.

Schedule 1—Related amendment and transitional provision

Part 1—Related amendment to the South Australian Employment Tribunal Act 2014

1—Amendment of section 51—Representation

This clause makes a related amendment to the South Australian Employment Tribunal Act 2014 to apply limits around the right to represent employees in proceedings before SAET where the representative is not from a registered association.

Part 2—Transitional provision

2—Registration of associations under Chapter 4 Part 3 to continue

This clause provides for transitional arrangements in relation to the registration of associations.

Mr TEAGUE (Heysen) (19:59): I rise to indicate that I am the lead speaker for the opposition and will address my remarks primarily to those aspects of the bill that are rather so understated that they suit the atmosphere in the chamber in this almost dead of night on the occasion that the government has decided to come on through from the introduction of this bill last thing on the last day of sitting in the previous week in another place to all of a sudden finding its way here late in the night, this Wednesday night sitting of the parliament.

We have put aside other work in progress, including a body of work on the Children and Young People (Safety and Support) Bill, a long-awaited piece of legislation, so that this can take priority and proceed now in a matter of short sitting days from introduction in one place to passage and then introduction and passage in another—that is the government's approach.

We know clearly what the headline purpose of the act is, and it occupied the bulk of the speech of the Attorney in addressing it in another place. We have just had the opportunity to hear that rehearsed here and, I acknowledge, with the addition of the insertion of a review clause since the debate in the other place and the bill finding its way here.

The bill deals in broad terms with three matters: first, the headline issue dealing with the CFMEU all the belligerence and allegedly criminal conduct of a whole variety of kinds that has been so unacceptable as to motivate the federal government to move the CFMEU into administration. We have found that the state act does not have quite the same statutory capacity to deal with the CFMEU's activities in the state, so, while there might be criticisms about due process, the insertion of those powers by those relevant provisions in this bill is supported by this side of the house. It will enable the South Australian operations of the CFMEU and its equivalent South Australian body, the ABCWF, to be caught up in the administration. That is aspect number one.

Then we see the two other aspects that meet the suitability for this dead of night aspect of it all. I think the government has more or less admitted, if not owned, that it is possible to draw some sort of connection about an opportunity to deal with these aspects, but they are completely unrelated to the process of dealing with the CFMEU. First is the extension of the maximum term for an enterprise bargaining agreement—that is very straightforward, it is just the change of one numeral to extend the length of an enterprise bargaining agreement. The government has put its case in terms of the debate that is on the public record.

From all that I can see and gather, there has not been a process of consideration and consultation about whether this is a good idea, and this is something that has always been on the government's mind and it has not taken anybody by surprise. On the contrary, it appears to have the character of an opportunistic add-on to a bill that has this headline imperative to it. It is a straightforward change.

The case is made that there are advantages for the government to have a maximum length of an enterprise bargaining agreement that might have the effect of it going over the course of an electoral cycle, and it is a maximum only so there might be very little change, and so on. But we are all left a bit mystified as to how this has arisen and why it has been regarded as desirable, let alone necessary, to include it in this bill. I flag that there is concern, and it is concern expressed not just by me and by this side of the house as to its genesis but by others who are affected by this process. So that is under-the-radar aspect No. 1, the second aspect of this bill.

The third aspect of the bill—and this is something that has been dealt with in almost Orwellian language in the course of the debate by the government—is the process of, while dealing with the CFMEU administration, somehow regarding it as an opportune moment—to use the words of the government now in both places, but I draw on the words of the minister just now—to 'streamline' the registration process for existing federally registered associations. It has taken, I think, everyone who has been interested in following this by surprise, so I have endeavoured to work through the reasons why this would occur.

I understand that a proposition has been put that you might connect the CFMEU administration process with what has been a longstanding set of circumstances in South Australia where bodies that are not registered as unions, for a whole variety of reasons, operate as unregistered associations and have representative capacities of various discrete kinds in the state, the case being made that it might be desirable at this time to say, 'We are dealing with the CFMEU. We wouldn't want the CFMEU to come in and somehow start operating in an unregistered way in the state. Therefore, we will make these arrangements to require more universal registration of bodies that are representing workers.'

I hear all that, and I acknowledge, albeit in recent days, the opportunity afforded to me by the government for briefing on the bill. I acknowledge the capacity of those involved in that I have been afforded the opportunity to walk through the provisions of the bill. I am grateful for that assistance and I think I have hopefully made it tolerably clear that I have remained troubled by the proposition that this third aspect of the bill is somehow intrinsically necessary, before even getting to whether it is desirable.

I think I have come to the view that what is really happening here is something that looks as though it might apply as a matter of general application, adopting a principle that registration, generally, is a good thing and that while dealing with the administration of the CFMEU, it now might be a good idea, to use the government's word, to streamline the local registration of federally registered entities that are within a particular class—that is, already federally registered and already operating here in some capacity—and to basically give them a direct run straight through to registration.

But you look at it more closely and then you find out that while that can be described in the general term, there are actually only two of them—that is, the Professionals federally registered union and then there is the HSU, a federally registered union that happens to be based in Victoria. It has that in common with the CFMEU. Members will recall that the CFMEU was another organisation based in Victoria that came over and took over in South Australia and we know where that led and I think the minister has referred to the fact that that was a regrettable state of affairs to have allowed that to occur in the first place a couple of years ago. I think plenty of us have been telling the government that from the get-go.

It is ironic that this bill would say, 'Look over here, look over here. We're acting to support the federal government's action against the CFMEU. We ought to be doing that and the bill needs to be supported,' but, at the same time, guess what? We have Victorian takeover number two coming along—streamlined. I might just unpack that characterisation.

We boil it down to really being essentially a special purpose piece of legislation that will be utilised in all expectation by only one entity—this federally registered Victorian-based HSU—that, apart from the merits and apart from its current activities, has a particularly chequered history all of its own. If we were going to line up unions in the rogues' gallery, then you have certainly got the CFMEU playing a starring role, but no-one could argue that the HSU is not far behind in terms of its chequered history. The HSU has long been operated out of Victoria and its special brand of misconduct and misadventure is in the area of financial matters and financially fraudulent behaviour by those who have lead that particular union over the last many years.

So you might say that the effect of your special purpose legislation in this regard also happens to be targeting itself at another one of these Victorian unions with an unusually sort of chequered history and tarnished reputation, but the bill, the very bill that is for the purpose of wielding the big stick on the CFMEU, is bringing in a brand new. Who knows? In two years' time, are we going to have the same conversation about the HSU and for no need?

The bill unnecessarily, in addition to dealing with the CFMEU, deals with this EBA extension and then rolls out the streamline for the HSU to come over from Victoria and be registered as a union in South Australia. I am really just coming up to speed on this and I defer to the minister who knows much better than I do about how the internals of the union movement work locally and across the board and to the bulk of those on the government side who are far closer to the union movement than I am.

But what I am satisfied about is that sections 131 and 134 of the act as they presently stand set out what are decades-long criteria that establish the basic case for an entity to go to the SAET and to apply to be registered as a local union in South Australia and they are not really all that complicated.

Firstly, that there is a sufficient degree of autonomy in South Australia that that body exercises. As presently stands, have a look at the HSU and we can see straightaway that the HSU fails that test. So, as presently standing, as is presently advised, vis-a-vis the HSU, it fails that test. It does not have the requisite, or any, as far as I understand, autonomy in South Australia such as would meet that test criteria. It has an operating address in Adelaide. It might have a post-office box equivalent. It shares its address with, I think, SA Unions. It certainly does not have much of a standalone address or presence in South Australia. That is autonomy. So it seems to fail the test on that score.

Then the other big one, the other criterion—and I get out the sort of statement of principle of the SDA, for example, and I am sure they are not alone, and it might be convenient to sort of set out the words of section 134(c)—is that there is no other association registered under the act to which members of the applicant organisation or branch might conveniently belong. That is the second of the longstanding criteria.

Again, I would like to think those opposite would be proud of me for reciting some of these articles of faith that have applied for a long period of time in terms of the union movement, that, if you are going to have a South Australian union, it ought to be South Australian and it ought to be an association that is unique in the sense that there is no other such organisation that members of the applicant branch might conveniently belong.

Just to draw out the SDA's article of faith in that regard, that is with the laudable objective that workers in a particular field are going to benefit from being represented by a single union and from the solidarity involved in all that—the common interest, the common purpose—and there will therefore not be any dilution contradiction that is in the interests of workers to operate that way.

We can have a conversation on the side, particularly on this side of the house, about general principles of competition and diversity and all the rest of it, but the longstanding criteria—which I do not see anyone in the union movement, affiliated or not, looking to move away from as a matter of general application—are that if you want to be a South Australian union registered here then you better have SA autonomy and you had also better be unique and serving workers in that regard.

The retort that will come will be, 'Well, hang on, the HSU has been operating in South Australia for years and represents workers and all the rest of it.' That is true and it has status, as I understand it. It has status as a bargaining agent and it has status as a registered agent and it can do a whole range of things in that regard. In fact, it can do all that it needs to do within those two capacities. So one is left to wrestle with the question: why the imperative to streamline the registration of this foreign union in South Australia? Why the imperative to say, 'Right, you can remain a Victorian union, federally registered, with no administrative presence control in South Australia, but now you can be a South Australian registered union'?

I will just dwell for a moment more on the particulars of the doing away with the criteria, because the government has not argued that these criteria are no longer useful. The government has not argued for some sort of new competition policy with regard to unions in South Australia or, indeed, across the country. Section 131(3) as it presently stands, as I have indicated, requires, in terms of setting out the criteria for eligibility for registration, that:

A branch of an organisation is eligible for registration under this Part if the rules of the organisation confer on the branch a reasonable degree of autonomy in the administration and control of South Australian assets and in the determination of questions affecting solely or principally members resident in this State.

That is what we are all here to ensure as well. Clause 11 of the bill deletes that and instead substitutes a provision that is instantly grandfathered and provides that those bodies that are registered at the time that the bill passes, and only those, can be registered as a union, regardless of that requirement.

I am at a loss as to what cause in principal, let alone any justification, exists for that change. There is not even any requirement for those organisations to satisfy anyone that they are going to conduct themselves any differently, so they may as well remain completely as they are, operating out of Victoria, and those eligibility for registration provisions are just deleted.

The second one that almost completes the duo is first in clause 13 where we see the role of SAET is now changed from its longstanding discretionary role and purpose when it comes to registration and deregistration. We see a change from a discretion providing that SAET may, after considering a range of things—objections to registration duly made and the receiving of evidence in that regard—exercise that discretion if it is satisfied that the body seeking that registration has satisfied the criteria, including the uniqueness criteria I described earlier.

We see that clause 13 does away, first of all, with that discretion in SAET, again for no apparent reason, and we do not hear that really talked about too much by the government. We have a new compulsion on the tribunal: 'This is the way it will go, SAET.' Then the second part of clause 13 just deletes those criteria altogether.

What we are left with is that the amendment to section 131 has done away with the autonomy criteria and has identified the HSU effectively as the one body that is going to take advantage of this provision, and then the amendment to section 134 has rendered SAET compelled to register the newly eligible HSU. That seems to be the simple effect of those changes.

So here we are, in the dead of night, not talking about all the uncontroversial matters—making sure that the CFMEU is appropriately administered—but instead puzzling over why the government has seen fit then to jettison all these longstanding criteria for union registration in the state of South Australia and do it only once in the interests of this one Victorian organisation.

People watching will be tempted to think, 'Hang on, is the government at it again?' The government has not learnt the lesson. They have seen the CFMEU sweep in from Victoria and that has ended very, very badly. Now, in the bill that we are having to debate that deals with that whole train wreck, they are streamlining, rolling out the red carpet to another Victorian takeover in South Australia.

It seems to be really as simple as that. It has been put to me, 'Well, we've got this uncertain environment around how we deal with those entities that have representative capacity that are not registered.' It is always good to take opportunities to make legislation clearer and, where it is possible, to improve the way that we define and identify different organisations that are operating, particularly on behalf of workers in the state. Great, let's do that. But this is not such a case, it seems to me.

The risk that the CFMEU might seek to come into South Australia and operate unregistered is able to be thwarted in a whole range of ways, it seems to me, and I hazard to say it is a risk that has not been really identified as anything realistic in the first place. The whole question of why this is here must remain a matter of concern and of some scrutiny.

What else might be a reason for the red carpet treatment for the HSU from Victoria? Well, apart from the HSU's chequered history, which has seen changes in the administration and various sanctions that have been applied along the way and so on, as we on this side understand it the HSU is an affiliated union that has had a history of being affiliated and associated with the left of the Labor Party, and that has played out nationally.

Recently, we understand that the HSU has seen fit to change its affiliation, its factional allegiance, within the Labor Party, and guess what? The HSU is no longer aligned to the left, but it has now recently joined the Premier's faction within the Labor Party. That is called the Unity faction on the ALP right. They have joined the Unity faction.

Again, it would be one less cloud over the whole situation if we were seeing an unaffiliated organisation that was conveniently able to improve their services if they were to be treated differently somehow, but we are not. We are not in that category. We are dealing with an organisation that operates wholly and solely out of Victoria. It has recognition to do what it does in South Australia. It has done so without complaint for a long period of time. It has also been associated with the left of the Labor Party and, curiously, right about now has changed over and now is associated with the Premier's Unity right faction.

Again, the minister might be able to enlighten the house better than I can about what that means in terms of power structure within the Labor Party. We have that to contend with when we are searching for a rationale for making this change at this time. Let's be clear: the HSU has never been registered in the South Australian state jurisdiction and it has never been able to meet the criteria that I have described, those long-settled criteria, which have been in place for the decades. It has never met them.

If the HSU were serious about registering in South Australia—especially in circumstances where it is associated with the Premier's faction and it might be a cause of some embarrassment, let alone a need for some sort of declaration or explanation from the Premier and those in the government that might be so aligned as well—then it might have actually taken some steps—

The SPEAKER: Member for Heysen, you have been going on for a long time now. Can I ask you to stick to the substance of the debate. You talked before 8 o'clock about us being here in the dead of night. It is not the dead of night, it is just after the dinner break, but we will be here for the dead of night if you do not stick to the point. This has been a fairly rambly sort of contribution and I do not think the faction that the Premier has belonged to has got much to do with what we are discussing in here tonight.

Mr TEAGUE: Speaker, I beg to differ. It will certainly be a feature of the committee stage of the debate, and I have flagged that loud and clear in the course of my second reading contribution. It may well be that there are important matters that the Premier needs to address. I am simply seeking to explore that matter. I am not an expert on that aspect of this union's operations, let alone its affiliation and so on.

What is clear is that clauses 11 and 13 of the bill are specifically directed to the facilitation of the registration of that union in this state against the background of the criteria that are set out in the act presently prior to the amendments.

The SPEAKER: The minister.

The Hon. J.K. SZAKACS: I raise a point of order. You have brought to the member's attention your remarks on his contribution, particularly in respect of sticking to the substance of his contribution. If the member seeks to either explicitly or implicitly raise improper motive of the Premier, there is a mechanism by which he can do that. Alternatively, and in the absence of that, through you, I urge you to bring him back to the substance of the matter.

The SPEAKER: Thank you, minister. Member for Heysen, please stick to the subject matter.

Mr TEAGUE: Thank you for your guidance, Speaker. If I was to dissent from a ruling, certainly I would make that clear; I do not intend to do that. In responding to your guidance in that regard, I am really seeking to make it clear as to where I am directing my remarks vis-a-vis their application to the bill and where I am likely to direct my interest at the committee stage.

On the point of order, I do not characterise my contribution vis-a-vis the Premier in that regard. Those are matters for the Premier and for the government. I am seeking to understand a rationale for clauses 11 and 13 of the bill, nothing more and nothing less, but this is my understanding of the circumstances.

If any federally registered body presently was minded to seek registration in the state of South Australia then the criteria for doing so are straightforward. They would go to section 134, the section of the act that is amended by clause 13, and they would present their case to the SAET in the time-honoured tradition, they would establish the criteria, they would give an opportunity for those who might be wanting to object to do so, and SAET would consider that matter and then exercise a discretion. This bill takes away all of that in one fell swoop.

The government describes it as 'streamlining', I have described it as 'streamlining' as well and I have added to that 'rolling out the red carpet.' The extent to which the red carpet has been rolled out and the reasons why are very much central to what I have described as provisions that are not in the least bit connected to the important work that the bill does in other respects to ensure that the federal administration of the CFMEU is effective including in terms of how it applies in South Australia.

If that constitutes rambling, I apologise. I am not an expert on the intricacies of the union movement, let alone factional allegiances and affiliations to the Labor Party. I am looking for a rationale for the inclusion of clauses 11 and 13, and clause 15 is in that mix as well, the moving away from the operations of an unregistered association in the interests of workers in this state and the claimed virtue in clause 15 of moving towards a sort of set of circumstances where registration is the order of the day.

The proposition I am putting in the course of this second reading debate is that that is actually no more than cover for the facilitation of a single union, a single federally registered entity, to become registered in South Australia as a union despite the fact that it does not meet any of the time-honoured criteria. Any bill that might deal with this that wanted to say 'Welcome to South Australia' would do away with those criteria holus-bolus.

The fact that it is sort of attached to the CFMEU administration process and it is an opportunity to deal with definitions and make things operate in a generally registered environment is not a compelling argument at all, it is not necessary, it ought to be done away with. We could do away with this whole matter in a short moment or two if the government was willing to just jettison it from the bill.

The SPEAKER: We can only pray that it will be in a short matter because this is unbelievable. It is an hour of largely rambling when you are posing questions that you can ask during the process.

Mr TEAGUE: I am certainly flagging that is the nature of the questions that will be asked. I do not have that opportunity now. I will have the opportunity in the committee. These are views that are sincerely held by those who are committed to workers' rights and the union movement in South Australia. I know that because I have heard it from them direct.

For example, the United Firefighters Union has been moved to share with me the letter that it wrote to the Attorney-General in this regard. That is a letter dated 11 October this year, just a short couple of weeks ago. The reason for that is that this is a bill that has had a very short gestation indeed. It has gone through a whole number of iterations. It has moved very swiftly from genesis to introduction.

The SPEAKER: Sorry, member for Heysen. Member for Bragg, when we have students in here and they play with the microphone, I tell them off. You are being quite violent with it and it is very expensive equipment. I ask you to leave it alone, thanks.

Mr TEAGUE: I am with you in that regard, Speaker. It is the first thing I say to the school children. I say, 'I will be in even more trouble than I am in already if you do that', so they do not. They step back.

The SPEAKER: Step away from the microphone.

Mr TEAGUE: I am with you. I am with you completely. So what did the United Firefighters Union say to me and by this letter to the Attorney? Again, I am really interested. The minister has provided the government's speech, but we have a lot more to learn from the minister than what we have heard in the course of the second reading debate. I say again, I defer to the minister's eminently greater experience in this regard than mine.

If the minister can provide some compelling rationale for the inclusion in this bill of clauses 11, 13 and 15, then let's hear it. But we have not heard that, what we have heard is the rehearsal of the government speech which I read after last Thursday in another place which had little sort of voce references to this kind of apparent virtue of using the CFMEU administration to kind of give the HSU the red carpet from Victoria into South Australia, so I am trying to keep up.

What does the United Firefighters Union say to the Attorney-General by its letter dated 11 October 2024? First of all, it was not entirely satisfied with the sort of due process applied to the CFMEU but everyone knows the CFMEU has got it coming, so they sort of say, 'Alright, we will suffer that.' They are not too happy about the length of the enterprise agreements being changed unilaterally for no reason, and they say that to the Attorney as well.

Then they get to registration of federal associations, and they get a bit rambly as well, because we are all a bit troubled by it. By the way, this is a letter from the union secretary, Max Adlam, who will be well known to members in this place. The United Firefighters Union said to the Attorney:

We do not support the changes which are proposed to be made to the long-standing arrangements for registration of employee associations in South Australia.

Max Adlam goes on:

As you know, Fair Work Act 1994 (SA) currently confers eligibility for registration under that Act for the purposes of operating in the South Australian industrial relations system upon organisations which are state based, and also which are registered under the Commonwealth (Registered Organisations) Act which applies to the Federal industrial relations system.

Although we fit within the former category, this letter is primarily concerned with the criteria applied to registration of the latter. Those organisations can apply for registration, and if they are successful can be treated as a registered employee associations in the South Australian industrial relations system under the Fair Work Act 1994 and obtain the rights, privileges, and responsibilities that flow from that.

The tests to be applied to whether a Federally Registered employee association can be registered in the South Australian system are straight forward, and have obvious public policy bases, in particular:

1. If the rules of the Federal Association provides for a South Australian branch, the organisation is not eligible unless its rules confer on it a reasonable degree of autonomy in the administration and control of South Australian assets and in the determination of questions affecting solely or principally members resident in the state; and

2. Registration may be granted if the organisational branch is eligible for registration, the registration would be consistent with the provisions and objects of this Act, and if there is no other association registered under this Act to which members of the applicant organisation or branch might conveniently belong.

Max Adlam goes on at some length, and for the convenience of members I would be glad to table the contents. It is not the practice of the house to do that but I commend the balance of the letter to all members for the purpose of this debate.

Suffice to say that there is not a union that I have heard from that—let me put it this way: the view expressed there by the United Firefighters Union is not a view that I have heard contradicted by any organisation registered in this state committed to workers' rights affiliated or otherwise. My understanding is that the United Firefighters Union is an affiliated union.

I have heard also from the PSA. The PSA represents, as I understand it, 40,000 public sector workers in South Australia. It might be regarded, at least as far as I am concerned, as a particularly credible voice in this debate because it happens not to be affiliated, and its commitment is to the best interests of workers in this state. It is not concerned with any of these questions about affiliation, let alone factional allegiance, and I can say that the PSA is up in arms about this.

It is basically saying that for no good reason and at no notice the government has come along and it has decided that it is going to jettison 30 years or more of these longstanding criteria that have provided for harmony and capacity in terms of the representation of workers in South Australia. All this comes along at a time when the government ought to be in learn-your-lessons mode.

The government ought to be coming along and saying, 'Right, we are doing what we are doing to make sure that the CFMEU is in administration, we are toeing the line, we have got the message, we are going to do the right thing as best we can, and we are going to look to apply what is going on federally because we really made a big error here. First of all, we accepted $125,000 from this union, and that helped us get elected, and then we kind of got dragged kicking and screaming, several months after the election, to give the money back, and then the union has proved to be everything that we were told that it might be both on this side of the house and from the poor folks out there in the real world who have to live under the increasingly belligerent cloud of the CFMEU.

Yet, when they come to bring a bill into this place that deals with the CFMEU finally, what do they do? They cause a whole new set of drama by providing inexplicably for the streamlining, as they say, of the registration in South Australia—mandatory registration in South Australia, so far as SAET is concerned—and the jettisoning of the longstanding criteria, solely, it would appear for practical purposes, in the interests of one entity alone. It is a mystery and is not satisfactory. It is not supported by this side of the house.

I say all that with an open mind. If someone wants to come along and persuade me—and I know that there are many able minds devoted to the task of reform in this area—that I have somehow got any aspect of that completely dead wrong, then please come and do so. I recognise the fact that the bill has only really been in existence for a little over a week and no-one has really had very long to take it in, but that is yet to occur.

So I flag that all those matters that I have just addressed—I apologise to the extent that they might have been characterised by the Speaker as rambly—might be addressed in the course of the committee process. Subject to that, this side of the house cannot support those particular provisions and I welcome the opportunity to explore them further in the course of the committee process.

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Local Government, Minister for Veterans Affairs) (20:53): As always, I thank the member for his long-considered contribution. There was an invitation by the member in his remarks to inform him if there were a view that he was dead wrong. Well, let me take this opportunity to inform the member that he is dead wrong. Not only is he dead wrong in fact but he is dead wrong at law.

As the member has said, there will be a committee stage at which he will seek to interrogate, but let me take this opportunity to strongly indicate on a number of fronts just how wrong the member is. He is right to graciously suggest that I have a bit more experience with the internal governance of trade unions than he does; that is correct. In the same vein, the member has an esteemed career in the law that I do not have, which makes it even more perplexing that he can make such incorrect attestations regarding the application of South Australian law in respect of registration.

Notwithstanding that, there are two important matters—should they not have the opportunity to come up in committee—that I think are important to note, contrary to the member's remarks. The first is a suggestion that the Health Services Union SA/NT branch is run out of Victoria or, more importantly, is run out of a post office box. It is just wrong. The Health Services Union is a union that is run here, its secretary is from South Australia and, in fact, its governance is entirely from hardworking individuals based right here in South Australia.

Let me take the opportunity, because the member did get this so wrong, to let him know where some of those members are based. The governance of the Health Services Union pulls together workers from a variety of public and private sector employers in South Australia, from pathology to allied health to phlebotomists to associated industries, all of which are based here in South Australia. Certainly, and quite importantly, they are not based out of a post office box, as the member has so incorrectly put.

In the member's remarks he also sought, I think, to hedge his bets—possibly because he knew that he was on a hiding to nothing on this one—that there may be some illumination as to reasoning or illumination as to clarity on this matter, I think, in his words, about: should this not be about one union that is not affiliated to the Labor Party? Well, one union that will also be subject to this new scheme is a union that is presently the subject of binding signatories to enterprise agreements on behalf of their members and a union that has extensively negotiated with both this government and the cabinet of which the member was a former member, and that is Professionals Australia, a union that is not affiliated to the Labor Party.

Notwithstanding the fact that those on this side proudly look to our history of the Labor Party as being the organised political voice for working people, there is a wide variety of unions in this state. In fact, by total membership, about half or a bit less than half are not affiliated to the Labor Party, Professionals Australia being one of them. The member has made the suggestion, as tenuous as it might be, that there is improper motive to introduce a scheme to seek to work off federal registration of unions to impose state obligations upon them, but the tenuous link is the improper motive that he has suggested upon those on this side.

I am not certain what tenuous link the member would seek to draw to a non-affiliated union like Professionals Australia. For the member, seeing he did not mention them once—I am not certain whether that is because he just conveniently forgot about them or, through his lack of understanding, did not even know they existed—this union is a South Australian-led union, a South Australian-organised union, a South Australian-based union with members from a variety, again, of public sector, private sector employers, from pharmacists and pharmacy assistants in National Pharmacies, engineers in the Department for Infrastructure and Transport (DIT), members across local government and other public and private sector memberships. Again, this is a union, under the member's own reasoning, that does not fit his mould of implying improper motive yet conveniently skates past.

I understand that it will be the will of members to enter committee. I will not hold out all hope, but I am not certain that I or others will be able to persuade the member on this, as he has invited us to do so. Of course, persuasion is always in our endeavour, but it is also tricky when we are seeking to persuade from a position entered into without great reasoning, rationale or fundamental understanding of existing schemes.

In saying that, I will again thank the member. He has also raised within the other two pillars of this important bill the length of enterprise agreements as well as the broad application of unregistered unions operating here in South Australia. I take it from the first pillar, which is the action taken to seek to apply administration to the state-registered body of the CFMEU that there is support from those opposite. I note that.

I also note in the member's remarks there was some degree of critique about the speed and efficiency with which our government has sought to bring this before the parliament, pursue it through the Legislative Council and now consider it before the house this evening. I am not sure if, in doing that, the member is asking us to slow it down or is asking us not to proceed with great urgency the significant, important piece of work in front of us, being ensuring that the CFMEU has no legal opportunity to act outside of federal administration.

Certainly in this government's engagement with business, we are hearing from them that this needs to move forward for certainty. In fact, as I have mentioned in my second reading speech, this is also a path of action that is being strongly supported by the vast majority of our proud, outstanding trade union movement here in this country, led in no better way than by the Secretary of the ACTU, Sally McManus, and the President of the ACTU as well.

Effective, well-organised, strong democratic trade unions are essential to our democracy. Those on this side of the house know that. Certainly, those on this side of the house know that even though we are the organised political voice of working people, there comes with that the rightful place of trade unions to operate independently, to operate in the interests of their membership and regularly, and at their discretion, to take positions contrary to the Labor Party.

There is a strength in that and there is a proud approach which many of us on this side, myself included, have exercised in our professional careers. But to suggest that we should not take decisive action when necessary to clamp down on behaviours, influences and actions within that movement that undermine the rest of it is quite a sorry state of affairs.

The average union member in this country is a middle-aged woman who works in health care or personal care: a nurse comes to mind. The largest trade union in this country is a nurses' union. That nurses' union has the same obligations imposed upon it under the federal system as the CFMEU. That nurses' union has the same obligations imposed upon it as the Health Services Union.

The member, again in some misguided reasoning, has sought to oppose sections of this bill on the basis of a historical impropriety on behalf of a number of leaders of health services unions in other states. What I need to break to the member is that the whole reason—the sole reason—that harsh, remedial action could be taken against both those individuals as well as that union is by virtue of them being federally registered. Registration is not a ticket to a holiday park and a carousel at Christmas. Federal registration means that you have imposed upon you serious obligations and, in breach of those serious obligations, significant penalties.

I would think that the Liberal Party—who, unlike those on our side, have historically proven that they do not see a reasonable, considered or material place for trade unions in our economy—would argue, just like we are arguing, that the capacity for penalties and the capacity for deregistration on a union is a good thing. We do not want to see it; we do not want it to happen. We wish that this had never happened from the CFMEU. But through the abject failure of leadership in the CFMEU, they have now put at risk the democracy of their union in an industry that is the most dangerous in our country.

There is a really good reason why construction workers are well paid. There is a really good reason why union density in the construction industry across the country, and frankly across the world, is high. It is because they deserve and demand good, strong unions. We believe that we get to good, strong unions through registration, through the imposition of obligations and, more importantly, in circumstances where fit, the capacity to either impose administration or potentially deregister. I commend this bill to the house, and I hope that in doing so I have plugged some of those holes that the member for Heysen asked me to.

Bill read a second time.

Committee Stage

Clause 1.

Mr TEAGUE: I take the opportunity at clause 1 to indicate a couple of things. I appreciate the minister's closing remarks in the second reading debate. I did, as the record will show, mention Professionals Australia as the second of the two federally registered associations and, if there are more, I am happy for those to be described.

My understanding is that Professionals Australia applied once for South Australian registration as a union, about 25 years ago, and they failed because they did not meet the criteria, and that Professionals Australia is not interested in registration, even under these circumstances. I might stand to be corrected on that, but hence my focus in the bulk of my remarks to the HSU only.

The second general aspect is that I welcome the minister's more free-ranging remarks drawn from the minister's experience and expertise in then indicating that I had somehow got it wrong or got the wrong end of the stick entirely. I did not hear in that an explanation as to why, so I remain troubled by the effective removal of the criteria for eligibility for registration presently the subject of sections 131 and 134. They constitute the thrust, therefore, of my inquiry in the course of the committee.

I reiterate, if I did not make it sufficiently clear in the course of the second reading debate, that there is support on this side of the house, as there has been for years, for appropriate action to be taken to prevent union belligerence so far as the CFMEU is concerned. It is welcome that that is to take place in terms of these administration provisions the subject of the bill, but for these super-added matters the bill would have passed the parliament within a short compass of debate.

I say that, notwithstanding the fact that the provisions for the administration of the CFMEU, as everyone knows, are to some extent circumventing due process—that criticism might be levelled. That is something that, in the circumstances, is justified so far as this side of the house is concerned and that is supported, so let us be super clear about that. I did not hear the minister make very much of that particular proposition, but to the extent it was trailed out I certainly reject that.

The concern here is that by means of this bill we are seeing the passage of a process that would do away with the criteria for registration. I mentioned that Professionals Australia, on my understanding, applied once many years ago.

The question that will arise at the relevant stage will be: if the HSU is somehow limited in its capacity to operate in South Australia now or in the years past, why has it not sought registration in the past? If indeed its South Australian personnel are more than simply fly-ins from Victoria that would not meet the criteria, then why has it not availed itself of the time-honoured process to meet the criteria and make the application and so on?

My understanding is the answer to that is a combination of fear that it might not achieve registration and, secondly, it does not need to because it is a bargaining agent, it is a registered agent. So the status quo is perfectly suitable, which leaves a mystery as to why the jettisoning of the criteria for this particular purpose applies now. To the extent that is a flagging of my interest, I deal with that by way of comment at clause 1.

The Hon. J.K. SZAKACS: I am just going to use this opportunity, as the member has, to seek to put a couple of matters on the record in respect to his question, but also I think there are two important matters in direct response to his question, which I think was regarding why a union has not sought registration or why a union has not subsequently sought to exercise matters under the state act. That is obviously a matter entirely for them. If the member seeks that question, I would direct him to ask that union that question.

Also—and I do not mean this as an accusation, please—if there has been any suggestion that I have made that has given the member an understanding that I have sought to put on the record that there has been an attempt by the CFMEU to circumvent current laws, it is not. I do note that there has been nothing available to the government that gives us any information that there has been any attempt to date.

Mr Teague interjecting:

The Hon. J.K. SZAKACS: No, I appreciate it. As a matter of principle, the member proffers a proposition, 'Is the status quo sufficient?' or he puts that the status quo in respect to registration is sufficient. It is firmly the position of the government that it is not, and the reason it is not is that if the position of the opposition is supported by the government—that is, not to change the system or the scheme in respect to the status quo for registration—it would allow, it would permit, it may even give a welcome mat to, a cohort of officials banned from working for a union that has been placed under administration to set up in South Australia to operate and exercise functions in South Australia without any reach of the South Australian law.

So, a suggestion from the opposition that the status quo is okay is not just perplexing but is firmly opposed by the government. We do not want to see a system where we effectively provide a legal framework for a lawless disregard for federal administration to exist. In saying that, there is a flow-on that if we as a government say, as we are, that we seek not to allow a legal framework or a legal hide-out for those cohorts that would seek to operate outside of federal administration here in South Australia, in doing so we say, 'If you are going to exercise the powers, the rights, the privileges of a trade union, then you should be a union registered here in South Australia.'

The natural consequence of that is that, in doing so, if we do not permit a scheme that leverages off the incredibly rigorous federal framework for registration—incredibly rigorous; in fact, so rigorous that it has been routinely criticised by trade unions for being too rigorous and too onerous. So what we are seeking to do is to leverage off that, so that workers who work in pathology, who work in engineering, who work in personal care, who work in our hospitals, and who provide allied health care into our schools are not disenfranchised from exercising their collective power as workers with the stroke of a pen, because under the proposition put by the opposition that is precisely what would happen.

We do not believe in a cascading series of priorities that the CFMEU, or any other union, should be able to set up and exercise here outside the law, first. The second thing is we believe that union should be registered here in our state. It affords them obligations, it affords them rights and privileges, but we believe that that is, as part of a modern industrial framework, critical. In doing so we will not be part of a suggestion that thousands of workers overnight should be without collective representation.

Mr TEAGUE: I appreciate that contribution from the minister, and in that context I am drawn to what would be the new part 3B, introduced later in the bill, so far as the overarching objective of the government is concerned. It is the subject of clause 14, and it starts with the introduction of the new part 3A dealing with the CFMEU, that is fine. The new part 3B empowers SAET to deal with, in the appropriate circumstances, precisely such conduct, it seems to me.

If the CFMEU sought to get around the administration by operating as an unregistered entity, then isn't that what the new part 3B is capable of answering, insofar as the new section 136H would empower SAET to make orders in relation to unregistered associations? It would need to be approached by an applicant-registered association, or an employer, and it would need to be 'satisfied it is appropriate and consistent with the object of this Act to encourage representation of employees and employers by registered associations' and could make a whole range of different orders to sanction such conduct.

So far from there being any evidence that the CFMEU is going to act that way, and sure, you need to circumvent it, or any evidence that the HSU is presently interested or eligible for registration in the ordinary course to depart from the status quo—then why isn't the regime in part 3B perfectly suitable to deal with such activity by an unregistered association? I just draw particular attention to that. I realise we are dealing with the overarching aspects at clause 1.

The Hon. J.K. SZAKACS: A very fundamental difference is that if the proposition of the opposition became law then these rogue operators who would seek to have the capacity to operate outside of the legal framework of federal administration could get a foothold in South Australia. The door would be open for them. They could operate, they could exercise effectively as a de facto union and it would then be incumbent upon a party to bring an application for them to seek redress. The position of our government is quite clear, we do not want to have the door open; in fact, we are going to slam the door shut, lock it, padlock it, and not let them in in the first place.

Clause passed.

Clauses 2 to 8 passed.

Clause 9.

Mr TEAGUE: So we get to that rather straightforward point about the change of the term of the EBA. I am interested to know why this particular change finds a home in this bill?

The Hon. J.K. SZAKACS: The position of the government is that we are using the opportunity whilst the act is open to, in our view, find consistency across jurisdictions. The overwhelming majority of employers and workers in the country are covered by a scheme that provides for a maximum of four-year agreements under the commonwealth industrial laws. Commonwealth employees themselves and I understand the Northern Territory—and correct me if I am wrong, I did refer to them in my second reading speech—and the majority of states, the majority of jurisdictional governments and the overwhelming majority of workers and employers who are covered by enterprise agreements are covered by this similar timeframe.

So it is a view of the government that it is for both consistency and also for budgetary cycles. You know as well as I do, member for Heysen, that we work through four-year forward estimates. It is a view of the government that we see fit to find consistency, as well as a better frame for future economic considerations through forward estimates.

Mr TEAGUE: I understand all of that. The question was directed to: why this bill? Why now? It is not a miscellaneous bill. There is no greater reason? It just happens to find its way in now as a matter of convenience?

The Hon. J.K. SZAKACS: I directly answered that question as part of my first response.

Clause passed.

Clause 10 passed.

Clause 11.

Mr TEAGUE: The first of the trifecta that do away with the longstanding criteria for registration and instead provide for this grandfather process. Perhaps I might start by asking then in relation to clause 11, and there might be a good answer for this: why the instant grandfathering? Why not leave the door open through this regime, if it is so worthy as a means of providing for registration for federally registered organisations, for future such federally registered organisations?

The Hon. J.K. SZAKACS: Again, I will refer the member to my answer in respect to some of the more broad-based questions that he had for me in clause 1. It is both clear and fundamentally why we have chosen this approach and that is that we do not see it being either equitable, right or just that we implement a scheme that requires greater regulation and greater onerous approaches for unions in our state whilst simultaneously overnight disenfranchising members of unions who are subject to longstanding collective agreements with the government that we hold and, in that period of which the member was a member of the Marshall government cabinet, agreements collectively negotiated and executed as well.

It is a matter of principle, and we do not believe that it is proper to disenfranchise thousands of workers in South Australia just at the expense of shutting out potential rogue elements of a federally administered union.

Mr TEAGUE: With respect, that does not seem to be a rationale for the action that is the subject of the bill or an answer to the question as to why the door is not left open if this is so virtuous. I will put the question this way: the new section 131 will, as I have characterised it, be instantly grandfathered—so it will be instantly redundant but for those federally registered associations that are caught by it now. Once they are registered, if they choose to under this new mandatory process, then that is the end of 131, and effectively the same goes for 134, which is the SAET obligation to register them, because they are eligible, they go together. I am seeing some frowning, but I think that is right.

The Hon. J.K. Szakacs interjecting:

Mr TEAGUE: No, I think that is right, though. So 131 and 134 become a special purpose—I think I described them in my contribution to the second reading. They effectively become special-purpose provisions for those two federally registered associations, and I have put the emphasis on one of them that is more likely to be the target of it.

So questions remain. The first question is: if that is so virtuous, why grandfather it instantly? The second question is: is the government therefore content—and it would appear the government is—to do away with the criteria for all time for any future registrant? Maybe the answer is that it is vanishingly unlikely that there would be any such future applicant. Is this entirely a matter of, from the government's point of view, mopping up these anomalous entities, and in future we are going to see all the applications come through the section 119 process? Is that what is envisaged by this kind of doing away with 131 and 134 for future purposes?

The Hon. J.K. SZAKACS: I am advised that, on balance, the way the clause has been constructed is for three reasons. One is that it was widely consulted on with the union movement, and the second is that the clause both preserves, as the member has it, those transitional, grandfathering matters and also contemplates, should there be radical changes to the federal scheme in the future, that there is not then an automatic flowthrough for registration into South Australia.

Thirdly, there is the futureproofing. It is a statement of fact, borne out by decades of lived history, that new unions now just do not pop up from the ground—in fact, quite to the contrary. There are mergers. It is directly to the question from the member that I can provide some advice to him on futureproofing. It is mergers and it is demergers, of which a couple have been widely reported on for some time now in the public discourse. One of these of course is again a consequence of the allegations of really appalling behaviour out of the CFMEU and seeing workers like textile workers, who are largely female and largely a migrant workforce, seeking to decouple themselves from that union. That is the likely—that is almost the guaranteed—proposition by which new entities are formed; it is mergers or demergers, and the construction of the clause, as I am advised, contemplates that futureproofing.

Mr TEAGUE: I appreciate that, and I think the example the minister has given is certainly practical. It seems the minister is also comfortable with the characterisation that this is otherwise it. So I just remind ourselves, mainly me, that presently section 131 confers eligibility for registration on, in subsection (1):

An association that is an organisation registered under the Commonwealth (Registered Organisations) Act…

That is eligible for registration, and then you see subsections (2) and (3) that impose some criteria, the key one being subsection (3), that we have addressed along the way.

So if you are an organisation registered under the Commonwealth (Registered Organisations) Act then you are eligible. So if in future there is a new one and it gets registered, then presently the act will talk to it—and I hear the government saying, 'That's not what occurs; what's happening is likely to be a demerger of some sort—'

The Hon. J.K. Szakacs interjecting:

Mr TEAGUE: —or merger. If we go to the substituted section 131, apart from what I have described as the instantly grandfathered aspect of it, we see now that:

…an association that is an organisation or branch of an organisation registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth is eligible for registration under this Part.

Okay, but it is subject to this section, and subsection (2), now, says:

An association that is an employee association is only eligible for registration if—

(a) immediately before the commencement day, the association was entitled under its rules to represent the industrial interests of employees in South Australia; or

(b) the association—

(i) has, in accordance with the 2009 [act]…amalgamated with or withdrawn from amalgamation with, an organisation or branch…that was, immediately before the commencement…

It is only covering those circumstances the minister has just described. So even if we were to extend beyond the automatic grandfathering to apply only to these two presently, the only things that it is then contemplating beyond that in the future are, prior to demerger or merger, enjoying that status presently. You have to be in the game in some regard presently, whereas there is no such criteria as presently set out in the act.

If that is intended the question really becomes: are we now just dealing once and for all with these federally registered associations, even if the jettisoning of the merits criteria is regarded as a good thing?

The Hon. J.K. SZAKACS: Largely, within a series of questions the member has just asked, yes, we are dealing with this once and for all. It is also correct that an entirely new union that has not existed previously—that has not merged, that has not demerged, that has not previously operated in the state system—will not be able to seek that registration into the state system.

Also the point the member made early in his remarks in that question was to seek to put that I or the government are comfortable with his or the opposition's remarks when I do not respond to all of them. That is an entirely unfair characterisation of my failure to respond or otherwise. The member has made a 1½-hour contribution tonight. I will not seek to respond to all of it, but for the sake of the record, no, it is not a correct characterisation to say that I am otherwise comfortable with the member's proportion of facts.

The committee divided on the clause:

Ayes 24

Noes 14

Majority 10

AYES

NOES

PAIRS

Clause thus passed.

Clause 12 passed.

Clause 13.

Mr TEAGUE: Clause 13 is the second of the trifecta.

Members interjecting:

The CHAIR: I have asked members to either keep quiet or leave the chamber; you cannot do both.

Mr TEAGUE: As I said, clause 13 is the second of the trifecta, the third being clause 15, as I referred to along the way. In clause 13 we see, first, the removal of SAET's discretion, so we now have SAET compelled to act in accordance with what is otherwise there, but then we proceed further and not only does SAET have a discretion to register, according to criteria, but those criteria are deleted altogether. The only thing that remains as a modicum of criteria is section 134:

(a) that the organisation or branch is eligible for registration under this Division…

The new section 134 would effectively read as follows:

SAET must, after considering objections to registration duly made in accordance with the rules, register an organisation, or a branch of an organisation, under this Division if satisfied—

(a) that the organisation or branch is eligible for registration under this Division;

That eligibility will be obviously according to the new section 131, which is the instantly grandfathered (almost) provision that deals with those two federally registered associations. So section 131 becomes almost as perfunctory as it can be. My question to the government is: has the government obtained advice and is it satisfied that section134 really has any work to do in terms of the judicial operation insofar as, for all intents and purposes, the tribunal has its discretion entirely removed. Has the government obtained advice? Is it satisfied that that will continue to stack up as a matter of law? I will get to the single proviso in a moment.

The Hon. J.K. SZAKACS: Yes, the SAET will still have work before it. If a union that is to be registered under this clause fails under the legislative framework—for example, its rules do not allow it to cover or represent workers in South Australia—it is then for another union or another registered association to object. In direct response to the member's question, yes, there remains a body of work and, more importantly, the exercise of judicial discretion or decision-making under the act before the SAET.

Mr TEAGUE: That is a marginally surprising answer from the minister, and I appreciate it. The question there is: why not therefore leave the discretion expressly there—'SAET may register'?

The other words that are left there in the body of the provision are that SAET implicitly is required to consider objections to registration duly made in accordance with the rules, but that is all. It has to consider the objections, but if the organisation or branch is eligible for registration under the division, unless the objection goes to that—

The Hon. J.K. Szakacs interjecting:

Mr TEAGUE: It goes to the eligibility.

The Hon. J.K. Szakacs interjecting:

Mr TEAGUE: Yes, that is true. Unless it goes to the eligibility, then the objection does not have any work to do.

The Hon. J.K. Szakacs interjecting:

Mr TEAGUE: It is a good point, with respect, that the minister makes.

The CHAIR: You should not be responding to interjections.

Mr TEAGUE: I stand corrected, Chair. I appreciate your guidance just at this moment of elucidation because objections did have work to do or do presently have work to do under the expanded criteria, because an objection certainly goes to the strict question of are they or are they not an association registered under the commonwealth registered organisations act, but presently such an objection might go to the merits that are otherwise contained in subsection (2) and subsection (3) of section 131, but they are gone.

It might be anticipated that an objection to registration might be duly made in accordance with the rules and it might be an objection that goes far more than the minister suggests than to the vibe but goes to the traditional criteria and an objector, a good old bona fide sincere union, wants to come along to the SAET and say, 'Hey, we object. We object because this applicant does not meet the criteria to be able to act in the interests of South Australian workers'—the longstanding, decades-long criteria. SAET might be required to consider such an objection because it would be duly made, but SAET would have nowhere to go but to consider the only remaining test, that being in (a) which is that the organisational branch is eligible for registration under division.

You have section 131 constraining the eligibility process and section 134 constraining the SAET application of that process of registration. You have a double up. The question is, and it speaks directly to what the minister's concern is, if you have an objector who is capable of coming along and duly making their objection, what is SAET to do with that?

The minister has posited that SAET retains a necessary modicum of discretion. What is SAET to do with that? Is SAET to turn around and go, 'Well, yes, thanks, I hear that. I have to refer to the minister's words in the course of the committee debate and for present purposes that amounts to nothing more than the vibe. I am sorry. It's all over. The organisation or branch is eligible for registration under the division so SAET must get on with it'?

The Hon. J.K. SZAKACS: I think it is important that within the member's attempt to construct the scheme, or his interpretation of the scheme, is the failure to recognise that the SAET can only exercise its statutory obligation to grant registration, whether it be 'may' or 'must', if that registered association meets the criteria. If they do not meet the criteria they cannot be registered, and if the objection is brought against one of those criteria not being met, of course, the SAET will exercise their discretion and not grant registration. If, as the member has put it, an objection is brought on the vibe, then there either will not be standing or the matter will not be heard, or the SAET will exercise discretion to grant the application if the criteria under the act are met.

Mr TEAGUE: I say again, the 'vibe' is the minister's word not mine. I am concerned that SAET is going to turn around and have to let the poor old objector down by reference to that. I am concerned that the registration process—it may as well do away with the objection process altogether, it seems to me. I cannot see what the purpose of an objection might be. It might say that SAET must satisfy itself that the applicant is an organisation or branch eligible for registration. Sure, it might say that, but the purpose of retaining the capacity for objection seems to be somewhat barren where there is nothing else to address.

The Hon. J.K. SZAKACS: Again, I think that the member is becoming unnecessarily preoccupied by the capacity to object when the fundamentals of the section are unchanged, being the criteria or, in fact, some of the disqualifying criteria that need to be applied for that registration. For example, if a union has previously been deregistered then that objection can be forthcoming. Again, I just refer to my previous answers. I reiterate now that the matter of the objections is almost immaterial to the construction of this section because the construction of this section remains that registration will occur—must occur, in this wording—only if criteria are met.

Mr TEAGUE: Very briefly, for the sake of the record, I concede sub (7) but, again, that is just a matter of fact and it should not be necessary for an objector to roll up and satisfy SAET of that. It is just a matter of fact. It might be put that SAET needs to be satisfied as to these matters, but the very purpose of an objector is to go to the sorts of merits criteria that are to be jettisoned, it seems to me.

The Hon. J.K. SZAKACS: I am being very kind, giving the member a question, and I think it is important that I respond. It is not the case that an objection needs to be brought for the SAET to not approve if criteria are not met. If criteria are not met, then the SAET will not approve. That is a statement of fact, and the member, again, seeks to conflate either various matters or a degree of sort of fundamental misunderstanding of the way that the registration system is. But, again, I place firmly on the record that it need not be that an objection be brought for the SAET to or not to apply the criteria correctly.

The committee divided on the clause:

Ayes 23

Noes 14

Majority 9

AYES

NOES

PAIRS

Clause thus passed.

Clause 14.

Mr TEAGUE: Part 3B got a mention in the course of the second reading, and I am grateful to the minister for the treatment of it at clause 1. At clause 14, we have the insertion of the new parts 3A and 3B, and they are welcome. At part 3B, there is the capacity for orders to be made in relation to unregistered associations. The first question, and a quite straightforward question: what, if anything, is the defect or gap in SAET's power that is not provided for there in the new part 3B, in that we have heard a lot about dealing with, and I think we dealt with this a bit at clause 1, the actions of unregistered associations?

We have talked about the actions of unregistered associations, and I think the minister—and I do not mean to misrepresent the expression—has talked about the government's resolve to lock the door ahead of time. So the question might be asked another way: if the door is locked so effectively ahead of time, why is there need for SAET to have powers to deal with unregistered organisations, and if the capacity is still there for unregistered organisations to operate in such a way that might be so objectionable that a registered association or an employer comes along to SAET and says, 'Hang on, they're doing the wrong thing,' why can all the work that has been so controversial in this bill not be dealt with at part 3B?

The Hon. J.K. SZAKACS: The rationale is precisely, if I can use a different example of which the member would be also very aware, is that it is like saying, 'We don't need to have a penalty attached for murder because murder is illegal.' Because we are having a scheme which prohibits, we also must have a scheme which seeks to penalise and act as a disincentive or persuasion not to offend, in the same way the criminal justice system provides for very strict penalties even in the event that the behaviour is illegal in the first place.

Mr TEAGUE: I get that; I understand. But a lot has been put about how it is not just the spectre of the CFMEU kind of phoenixing itself into operation in an unregistered way but that it is somehow necessary for presently unregistered associations, the federally registered unions—and particularly those two—to become registered, as the government describes, in this streamlined way. What is wrong? Put it this way: where is the submission from the HSU or from Professionals Australia that says, 'We need to be instantly registered so as not to get caught up in the risk of the unregistered operations of a new CFMEU offshoot'?

Why is it that those who are operating now, the federally registered associations, cannot continue to do so in the present capacity: HSU, bargaining agent, registered agent, continue to do what you do, represent your South Australian workers? If they do so in a way that is objectionable, they are exposed under part 3B, but there is no need to close the door because they are here already. Why the rush to provide for instant registration, jettison the whole scheme that is longstanding for anyone else who might come in, and then have part 3B come along? As I said at the outset, I am in praise of part 3B—yes, you want to guard against bad actors who are unregistered—but why not status quo plus part 3B, everything is solved and we get on with sanctioning the CFMEU?

The Hon. J.K. SZAKACS: Fundamentally, under the opposition's construction, that would mean that if a union was operating in the state jurisdiction unregistered, under the government's construction of the scheme we would have no ability for SAET to place them under administration or, under particularly significant circumstances, deregister them. What that would do is provide this perpetual legal opportunity for a federally registered union to be administered or deregistered under serious circumstances and then phoenixed across states. That is where it is correct for the member to use my phrasing about us shutting the door, locking it, bolting it and throwing away the key. But, in doing so, there has to be an equitable approach and an equitable application at law, and that is fundamental to the commitment that we as a government have to having a state system that operates that can under very serious circumstances administer or deregister a union.

Mr TEAGUE: Yes, I understand all that. I do not see why part 3B is not suitable for precisely that purpose. Let me spell it out.

The Hon. J.K. Szakacs: You have. It is alright. We have recognised that question now.

Mr TEAGUE: Let me be clear: SAET—

The Hon. J.K. Szakacs interjecting:

Mr TEAGUE: Let me clear: I am welcoming new 136H. That will empower SAET to do a whole range of things: to make orders prohibiting an unregistered association from representing a person or group, among many other things. There might be this mingling of objectives that is going on. If we can talk on the one hand about what I have described as a lack of imperative to change the status of the federally registered organisations and then, on the other hand, to look at the adequacy of the measures that are available in terms of sanction to the SAET to deal with unregistered associations.

Much has been put by this government in this whole debate about the merits of registering everybody so that they can be appropriately sanctioned when they do the wrong thing. They can be deregistered, for example, but if we have this regime in place that will deal with the actions of unregistered associations, then why not satisfy ourselves with that? Why also have this, again, as the government describes it, streamlining process, jettisoning of the ordinary criteria, for those federally registered associations? The minister might be right: that might be repeating a point that has been made several times.

The Hon. J.K. SZAKACS: As I have previously responded to the member's questions, this acts in conjunction with the pathway to registration which the bill provides. If that did not operate, or, as the member puts, there was to be a construction of the section that looks at or that allows for one cohort of unregistered unions to operate here, another to operate here, and one to have penalties apply and the other not to, this section, in the member's construction, would seek to immediately impose sanction on the two unions currently operating in South Australia doing the right thing, doing an outstanding job for their members, operating democratically and justly. It would apply to them and it would impose sanctions upon them for doing nothing else but operating as they have now for many, many years in South Australia.

Mr TEAGUE: I just have to contradict that.

The CHAIR: You are using this question to contradict it?

Mr TEAGUE: Yes. I just have to contradict that. On the contrary, it certainly would not do that. It would render their activities liable to be the subject of an application by a registered association or an employer. Why not by others? I would be open to consideration of that as well. The point is they are vulnerable to an application, and if they are doing the wrong thing, if SAET are satisfied they are doing the wrong thing, then SAET can sanction them, but no-one is suggesting that. No-one is suggesting that they are doing anything other than what they are appropriately doing.

We are talking about two organisations that have been operating perfectly happily in South Australia for many years and, as the minister says, representing all sorts of people according to their capacities: HSU, bargaining agent, registered agent—perfectly happy as far as everyone is concerned.

Yes, they would be potentially subject to these provisions; that is welcome. But they are certainly not immediately on the receiving end of sanctions. On the contrary, they would have to be doing the wrong thing. They would have to be a registered association that would apply to SAET and provide good reasons why something heretofore unknown, and a complete red herring to this whole process, was somehow satisfying SAET that they ought to be the subject of any of these sanctions that are here below.

I appreciate that part 3B might be intended to direct itself only to CFMEU or such phoenix operations and be ready there for that purpose. If so, it might have been even more explicit to say, 'CFMEU shall not phoenix and operate as an unregistered association, and if it does this is what can happen.' But really and truly, why not have a process such as part 3B applying, as it does on the face of it, generally? I make no suggestion whatsoever that either of those two federally registered associations would be somehow immediately liable to sanction under it; I just talk about the sufficiency of part 3B for the purposes of the bill.

The Hon. J.K. SZAKACS: I think the only other thing I can add on this member's questions, which I have sought to answer quite extensively and also through the second reading speech, is that the application of part 3B, and particularly the decision of the SAET on application, is subject to the consideration being consistent with the objects of the act, which is to encourage representation of employees and employers by registered associations.

Clause passed.

Clause 15.

Mr TEAGUE: Clause 15 is the third in the trifecta. It provides for this new process of the anticipation of, as I understand it, the CFMEU phoenixing and then operating as an unregistered association. Does the minister put this in the category of closing the gate and bolting it and locking it and all the rest of it?

The Hon. J.K. SZAKACS: What I do put it in—just for the member's benefit, because I would be somewhat surprised, if not shocked, if he would be arguing to the contrary—is this section will ensure that an official must be part of or employed by a registered association to exercise right of entry privileges.

Mr TEAGUE: Let me be clear: I am getting to grips with the work that the clause is doing in the context of streamlining the registration of HSU and, to the extent that they want to, I do not want to leave Professionals Australia out of this. It is basically now saying that because everybody who we now regard as bona fide representatives of anybody in the state of South Australia is going to be registered, we are therefore comfortable to move away from this looser, broader definition and then say it is only registered associations that will be allowed. In a way, it is a sort of backwards justification for registering them in the first place.

I concede it might be a subsidiary point that the guts of the principle is dealt with vis-a-vis clause 11 and clause 13—what are the criteria for registration in the first place, the 131, 134 criteria. Here we are saying that we now need to talk about a registered association because we have now drawn everybody into that frame. Is that a fair characterisation?

The Hon. J.K. SZAKACS: I have given up on trying to deduce whether it is a fair characterisation, because I probably lost the member about five minutes ago in that question. The simple answer is, yes, it is the government's view that only registered associations should be afforded the rights and privileges of right of entry.

Mr TEAGUE: So we are now going to be in a regime—is this right—for better or worse where any unregistered association that would purport to represent workers (it is a corollary to this whole process) will be excluded from the powers subject of division 2? If they want those powers they are going to need to get registered, and that applies to the local operations that will need to apply under section 119 or those that are in that future merger/demerger environment that will be the subject of the new 131. To the extent that we move away from the federally registered associations and talk to the 119 process, you are going to need to be registered if you want section 140 powers?

The Hon. J.K. SZAKACS: I have sought to be very clear, and I have been asked the same question three times: yes, to exercise right of entry powers to be afforded the privileges under section 140, that will be afforded only to registered associations.

Clause passed.

Remaining clauses (16 to 18), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Veterans Affairs, Minister for Local Government) (22:23): I move:

That this bill be now read a third time.

Bill read a third time and passed.