Submission of the Health Services Union to the Senate Standing Senate Standing Committee on Education and Employment

Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019

9 September 2019

Authorised by Lloyd Williams, National Secretary HSU National Suite 46, Level 1 255 Drummond Street Carlton VIC 3053

Contact: Lauren Palmer HSU National Research and Policy Officer Introduction The Health Services Union (HSU) is a growing member‐based union with some 85,000 members working across health and community services sectors in every state and territory. Our members work in public and private practices and hospitals, and not-for-profit organisations. HSU members are social workers, paramedics, disability support workers, aged care workers, community workers, psychologists, physiotherapists, occupational therapists, podiatrists, diagnosticians, doctors, nurses, medical scientists, medical librarians, pharmacists, administrative staff, cooks and cleaners.

The work of our members is at the heart of strong, healthy and connected communities. HSU members are incredibly proud of the work they do in providing care and giving a voice to society’s most vulnerable. Most HSU members earn sub-standard wages and work in arduous conditions; they are Award-reliant, employed on precarious or casual arrangements, work with little-to-no formal supports from employers, and face the threat of workplace violence on a daily basis. Yet day-in and day-out, they offer unwavering commitment to those in need.

The HSU is a driving force to make Australia a better place. We work to ensure the rights and entitlements of not just our members, but all working Australians, are protected and advanced. We engage in campaigning, workplace activism and education, as well as providing a range of services and support to assist members with many aspects of their working and personal lives. The work and advocacy of the HSU is in recognition of the inextricable link between accessible, quality and safe healthcare, and meaningful social and economic participation.

The Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 (the Bill) seeks to introduce extreme regulations for unions, despite an effective and stringent governance regime already in place. The Bill will allow for undue interference in the democratic operation of unions and poses a serious threat to the rights of workers, including the freedom of association, right to collective bargaining, and choice of representation. The Bill is not just an attack on unions; it is a brazen display of Government disdain for the rights and voices of working Australians.

The Bill is an attack on the aged care worker holding the hand of your loved one in their final days. It is an attack on the disability support worker advocating for those who cannot advocate for themselves. It is an attack on the allied health professionals who carry out the research that makes Australia a world-leader in healthcare. It is an attack on the paramedic who tended to your child in their medical emergency. The Bill is an attack on the social fabric of our country.

The HSU opposes the Bill in its entirety.

While this submission has been prepared by HSU National, it is made on behalf of our branches1 and members Australia-wide. The HSU refers members of the Education and Employment Legislation Committee (the Committee) to the submission of the Australian Council of Trade Unions (ACTU). Th HSU supports the ACTU submission in its entirety.

1 HSU National is the trading name for the Health Services Union, a trade union registered under the Fair Work (Registered Organisations) Act 2009.The HSU is a federated union with individual branches for New South Wales, Australian Capital Territory and Queensland; South Australia and Northern Territory; Tasmania; Victoria (four branches); and Western Australia. The HSU story

A history of workers joining together via union amalgamations – why the proposed amalgamation scheme ought to be rejected The HSU’s history dates back over a century when hospital workers began to formally organise in Victoria. Over the next few decades, the union continued to expand its coverage and establish itself in other states and territories, via a series of amalgamations voted on by the rank and file membership.

The HSU as it is formally known today came into operation in 1991 after members officially voted to merge the Hospital Employees’ Federation of Australia and the Health and Research Employees Association in 1990. Throughout its history, the HSU has worked to secure and protect the rights of every worker–including the freedom to associate, to seek representation of their choosing, to collectively bargain for fair wages and conditions, and to carry out their jobs in safe workplaces.

Given our union’s history of workers joining together via union amalgamations to best support and advance their interests, the HSU is particularly concerned by the proposed amalgamation scheme in the Bill. The Bill introduces a protracted amalgamation process, designed to provide various third party interests the maximum opportunity to interfere in and delay an amalgamation process. Most disturbingly, the Bill positions employer interests as of equal importance to the interests of union members in the FWC’s consideration of whether a union amalgamation ought to proceed.

The case of a few bad apples – why the existing provisions work The modern HSU has an important story to tell about the effectiveness of the existing frameworks to address corruption and maladministration in registered organisations. The HSU shares this story with the Committee to provide evidence that the proposed legislation is unnecessary and an overreach of Government authority.

The HSU has previously been affected by serious corruption and maladministration within two of its branches. An internal committee of HSU officers was established and with the majority support of the national executive, moved swiftly to investigate and address the wrongdoings it uncovered. The work of the investigative committee, operating within the existing legislative and regulatory frameworks, and despite resistance from the offending officials, built the case to formally eradicate the dysfunction and criminal activity within the union.

In both cases outlined below, it was the work of these committed HSU officers that made it possible for the Court to remove the offending officers who had brought the union into disrepute, appoint an administrator to clean up the branches and install proper governance policies and procedures, and return the branch to the democratic control of the members via elections conducted by the Australian Electoral Commission (AEC).

HSU Victorian No. 1 Branch

Over the course of a year, in and around 2008, the Victoria No. 1 Branch of the HSU became progressively more dysfunctional. At its root, the cause of this dysfunction was antagonism between two groups formed by members of the Branch’s committee of management and their supporters within the Branch membership. One group coalesced around the Branch President, who was also a paid employee of the branch. The other was led by the Branch Secretary.

Disputes between the two groups gave rise to a series of events which severely undermined the functioning of the Branch. The result was that Branch officers were deflected and distracted from the pursuit of the industrial interests of the members.

In 2009, the Federal Court, made a declaration, on application by the union, that the HSU Victorian No. 1 Branch had ceased to function effectively and that there were no effective means under the rules of the union by which it could be enabled to function effectively.2 The Court made an order approving a scheme whereby all elected officers offices of the Branch were declared vacant. An administrator was appointed in their stead, to have all the powers of the Branch Secretary, President and committee of management, subject to certain limitations. The scheme further provided for the conduct of an election of all offices by the AEC. A copy of the order is provided at Attachment 1. Through the course of the scheme, the parties were able to return to the court to seek amendments to the order as required.3

Additional actions were also taken in relation to the maladministration of the branch. The General Manager of the Fair Work Commission (FWC) successfully obtained declarations and pecuniary penalties against the union and several officers relating to the financial administration of the Branch.4

HSUeast Branch

In late 2011, Ms Kathy Jackson, the Branch Executive President and National Secretary of the federal union, referred allegations of corruption levelled at Mr Michael Williamson, the Branch Secretary and President of the federal union, to the New South Wales Police. Ms Jackson referred the matter to the police at the urging of members of the federal union’s national executive, who were working to collate evidence and pursue suspected corruption within the union’s branches. The allegations also pertained to the counterpart state-registered HSUeast union, in which Ms Jackson and Mr Williamson held equivalent offices. Subsequent events uncovered corruption by Ms Jackson as well.

The unhappy events in which both the HSUeast Branch and the state union were embroiled ultimately led, in June 2012, to a Federal Court declaration that the HSUeast Branch had ceased to function effectively and that there were no effective means under the rules of the union by which it could be enabled to function effectively.5 The declaration and consequential orders were mirrored in relation to the state union, under equivalent provisions of the Industrial Relations Act 1996 (NSW). The application was brought by the secretaries of all other branches of the HSU.

The Court made an order approving a scheme whereby all elected offices were declared vacant and an administrator, being a former Federal Court judge, was appointed in their stead. The administrator

2 Health Services Union, in the matter of Health Services Union [2009] FCA 829. 3 Health Services Union (No 2) [2010] FCA 485. 4 General Manager of Fair Work Australia v Health Services Union [2013] FCA 1306; General Manager of Fair Work Australia v Health Services Union [2014] FCA 970. 5 Brown v Health Services Union [2012] FCA 644. was given a range of powers and duties, including those usually vested in the officers and executive committee of the Branch. The administrator was required to carry out certain tasks, including the preparation of financial accounts and a current membership roll, and the implementation of internal control policies and procedures to ensure that the Branch was conducted in accordance with the principles of good corporate governance and accountability to members. On completion of these tasks, the administrator was required to arrange for an election of all offices by the AEC. A copy of the order is provided at Attachment 2. The parties returned to the Court for amendments to the scheme several times, including for an extension of time.6

Additional actions were also taken in relation to these events and the corrupt conduct that was uncovered. Ms Jackson was found to have contravened her statutory duties in relation to the financial management of organisations,7 and the Court ordered her to pay $1,406,538.16 to the federal union, by way of compensation for damage caused to it by reason of her contraventions, along $554,215.67 by way of judgement interest and $365,500 in costs.8

The state union also brought proceedings in the NSW Supreme Court to recover losses and damages suffered as a result of conduct by Mr Williamson and other officers. These proceedings settled. The settlement included a judgement in favour of the Union against Mr. Williamson in the sum of $5mil.9

Mr Williamson was sentenced to seven-and-a-half years of imprisonment, with a non-parole period of five years, for criminal offences including fraud and dishonesty. Under the RO Act, this conviction renders him ineligible to hold office in a registered organisation without leave of the Court.10 The New South Wales branch of the HSU, along with the national office of the union, successfully concluded civil proceedings against the relevant parties. Criminal proceedings against Ms Jackson are ongoing.

The democratic reconstitution of the HSU The orders for administration included a requirement for the dissolution of HSUeast back into its three original branches, being Victorian No. 1, Victorian No. 3 and NSW. There was then a requirement under the orders for the branches to hold elections via the AEC. These elections took place in 2012 and attracted member engagement at a higher than average rate.11 Throughout the challenging times, HSU members remained defiant in restoring their union and ensuring they had continued access to representation and advocacy. The members took back control of their union. Democratic control of the union by the members and for the members was reasserted.

The effectiveness of the existing regime The HSU’s story tells us some important things about the existing legislation and the amendments proposed in the Bill. First, the existing administration regime already gives the court significant powers, discretion and flexibility in dealing with most of the officer conduct contemplated by

6 Brown v Health Services Union (No 2) [2012] FCA 1014; Brown v Health Services Union (No 3) [2012] FCA 1246; Brown v Health Services Union (No 4) [2012] FCA 1376 7 RO Act, s 287 – Use of position. 8 Health Services Union v Jackson (No 4) [2015] FCA 865. 9 Health Services Union NSW v Peter Mylan [2014] NSWSC 1026, [10]. 10 RO Act, s 212(a), 215(1). 11 NSW branch had 28% returned votes; Victoria No 1 had 46% returned votes; and Victoria No 3 had 58% return rate. expanded grounds. The difference is that the thrust of the current provisions is to provide support to a union or branch when it becomes, for whatever reason, unable to look after its own affairs. In making the orders, the Court was not required to make any findings of wrongdoing—that was a task for other bodies and mechanisms, including civil proceedings for compensation under the RO Act, and criminal proceedings. By contrast, the Bill focusses on misconduct and wrongdoing, and in so doing radically changes the nature of the provisions from remedial to punitive. This issue is discussed further below under ‘Declarations’.

Second, the discretion already conferred on the court is wide enough to allow the court to make the types of facilitative orders for the operation of an administrative scheme proposed in the Bill. For example, in the HSU matters the Federal Court made orders for the appointment of an administrator (proposed s 323A(2)(a)), a timetable for elections (proposed s 323A(2)(d)), the functions of the administrator (proposed s 323F), and an order directing an individual former office holder to assist the administrator (proposed s 323G). The Bill does not require an administrator to have any particular qualifications or any experience with registered organisations.

Third, the HSUeast case involved both the branch of the federally-registered union and the counterpart state-registered union. The scheme was only able to work because NSW introduced mirror provisions into its state industrial relations legislation. In cases involving counterpart federal and state unions or branches, the proposed provisions will be of limited use unless orders can be made in relation to both. This issue requires further consideration.

Fourth, the HSU case demonstrates the lack of need for other aspects of the Bill. The officers involved were held to account under existing criminal and civil processes, which rendered them either excluded from holding office under the existing automatic disqualification regime12 or liable to a disqualification order for contraventions of the civil penalty provisions of the RO Act.13 In any event, all officers were removed by the Court under the existing administration regime.14 The funds and property of the branch were placed under external control until the branch was able to be returned to the control of the members.15

Finally, and most importantly, the affected branches HSU were effectively reconstituted and returned to its members. Had the Bill been enacted at the time, it is possible that the HSU would have had its registration cancelled all together, leaving its members without representation. The HSU story demonstrates the danger of the extreme expansion of the cancellation regime.

The HSU today and the critical involvement of members who volunteer their time The HSU takes the lessons learned from its past with the utmost seriousness. It is an organisation committed to ensuring it now leads by example in compliance and governance.

12 RO Act, ss 212(a) and 215(1). in the case of Mr Williamson, and likely the case of Ms Jackson once her criminal proceedings are concluded. 13 RO Act, s 307A. 14 RO Act, s 323(2). 15 RO Act, s 323(2) cf proposed s 28P(1)(c). The operation of the HSU today is made possible by the voluntary participation of members. 130 HSU members around the country volunteer their precious spare time and energy to the running of the union.16 These people constitute the Branch Committees, National Council and National Executive of the HSU. Our Branch Committee members and National Councillors oversee the business as usual operations of the organisation, including, but not limited to: approving expenditure and allocation of union resources; appointment of staff and determination of the salary of paid officials; voting on internal and external union policy and procedure decisions; and ensuring compliance with governance requirements. Each volunteer member undertakes induction and training and is responsible for ensuring they remain up to date with regulatory changes.

Committee members are appointed to these roles via fair election processes and work in accordance with the rules of the union. Less than 20 percent of the HSU leadership are paid officials.17 Nearly 60 percent of the HSU’s volunteer Branch Committee members and National Councillors are women. In addition to the running of their union, these unpaid officers work in emotionally and physically intensive jobs day-in and day-out. The current HSU Branch Committees are made up of: • Paramedics • Disability support workers • Aged care personal care workers • Community support workers • Cleaners • Dentists and dental assistants • Caterers and cooks in public and private health services and hospitals • Health education and training officers • Security officers in public and private hospitals • Medical scientists, technicians and medical imaging technologists (sonographers and radiographers) • Social workers • Physiotherapists and occupational therapists • Enrolled and registered nurses • Registered psychiatric nurses • Pharmacists • Psychologists • Medical librarians • Administration staff and clerks • Podiatrists

The importance of the contribution these proud union members make to our local communities cannot be understated. The Bill is an affront to the freedoms and rights of these everyday people; people committed to delivering better health and social outcomes for us all–including their right to freedom of association.

16 Health Services Union, Annual Return of Information (organisation with branches), filed in accordance with Regulation 147 Fair Work (Registered Organisations) Regulations 2009 and Sections 230 and 233 Fair Work (Registered Organisations) Act 2009, dated 27 March 2019. 17 Ibid 2. At the heart of the HSU is the advancement of worker rights and entitlements. At every branch, the HSU has engaged in enterprise bargaining activity and delivered improved wages and conditions across the sectors our members work in. On a national level, the HSU advocates in the Fair Work Commission (FWC) to improve wages and conditions in modern awards for our members, and indeed all employees in the health and related sectors. Our members have appeared as witnesses in these proceedings, often risking repercussions in their own jobs to speak up about conditions in their industries. Most recently, the HSU secured decisions in the FWC that will deliver increased weekend and public holiday rates of pay for casual workers in aged care, social, community, home care and disability services.18 These FWC decisions follow long and intensive campaigns to have the arduous, and often precarious, nature of health care work reflected in fair pay and improved income security.

The HSU, on behalf of its members, also actively engages in various relevant inquiries and commissions. The recent Senate Inquiry into first responder mental health19 came about because of the campaigning efforts of paramedic and union member Simone Haigh. With the support of her HSU branch, Simone pushed for the Inquiry to take place. Her dedication to raising awareness to the plight of first responders20 was commended by the Senate Committee in its final report.21 Most recently, the HSU has had members provide invaluable insights to the Royal Commission into Aged Care Quality and Safety. With the support of the union, our members have given witness statements and appeared at hearings. These brave individuals have shared their experiences even in circumstances where the stories are difficult to recount, and they face possible backlash from employers. They have displayed bravery because they want to see better outcomes to the system tasked with providing care to our older and vulnerable, Australians.

HSU members never waiver in their commitment to delivering better lives for their fellow community members. They work in arduous and emotionally intensive conditions that are difficult for most others to conceive. HSU members work alongside one another and their union to defend society’s most vulnerable and build a better Australia for us all. They deserve to have their own rights and freedoms protected by the Government. The leadership of our union, the majority of whom are volunteers, respect the frameworks in place that govern the work of the union. The officers of the union and our members recognise that the democratic and effective operation of unions are central to the free and progressive functioning of society.

The HSU calls on the Senate to respect the rights of our members and all working Australians and reject the Bill in its entirety.

18 Four yearly review of modern awards – Award stage – Group 4 – Aged Care Award 2010 – Substantive claims [2019] FWCFB 5078; 4 yearly review of modern awards—Group 4—Social, Community, Home Care and Disability Services Industry Award 2010—Substantive claims [2019] FWCFB 6067. 19 Commonwealth of Australia Senate 2019, The people behind 000: mental health of our first responders, report. 20 First responders include paramedics, police officers, firefighters and emergency service call-centre workers. 21 Ibid 19, pp. xi, 2 and 61.