Changes to union elections rules
The Coalition promises $25 million in savings by requiring unions to fund the election of union office holders, which the law says must be conducted by the Australian Electoral Commission. How does this fit with the promise not to alter the Fair Work Act during the life of the next Parliament? And where does the policy proposal sit in relation to recent political settlements on the role of unions in Australian society?
The law governing union elections, the obligation to use the AEC and the fact that the Commonwealth will fund the elections is found in the Fair Work (Registered Organisations) Act 2009, not the Fair Work Act itself. Tony Abbott could presumably argue that he could amend the former Act without changing the latter one, thus keeping faith with his key election promise on industrial relations. However, Mr Abbott has said he will amend the Commonwealth Electoral Act to require unions to reimburse the Commonwealth the cost of AEC elections imposed by federal law. According to principles of statutory interpretation, the amended Commonwealth Electoral Act would override inconsistent terms in the Fair Work (Registered Organisations) Act 2009 to the extent of any clear inconsistency, although the situation is not clear-cut. Julia Gillard claims advice to the contrary.
The legal requirement for publicly-run elections is based on the concept that democratically accountable unions are essential for the proper conduct of the Australian system of workplace regulation. Unions which seek registration under the system, and the legal protections this brings with it, give up certain freedoms in exchange. The policy is designed to avoid despotic or corrupt union leadership which is able to exercise the rights and power conferred on registered unions by the statute in defiance of the real views of their members.
The requirement for proper elections in registered unions is only part of a large armoury of union regulation, which 'manages' Australian unions and their activities to a very significant extent. Because of the peculiar nature of the Australian system, our laws have often been in breach of the principles of the fundamental human right to freedom of association. The International Labour Organisation has found that the Fair Work legislation, like Work Choices before it, crosses the line in constraining certain fundamental freedoms of unionists and their organisations.
Unless the legal obligation to use the AEC is also removed, unions will be prevented by federal law from seeking cheaper alternatives or running the elections themselves. The Coalition policy is likely to take Australian law further outside the scope of international labour norms: unions will be legally bound to utilise the AEC and then billed for the privilege. One possible consequence might be a shift in the cost/benefit analysis of unions when assessing registration under the federal Act, in which case Australia will need to find new ways to regulating for democratic and transparent unions.
Dr Jill Murray