Ticking bombs of Kitching, Melhem test Bill Shorten’s smile

The studied smile on Bill Shorten’s face gave nothing away. For most of the year’s last fortnight of parliament, as frustrations boiled over on both sides of the aisle during question time, the Opposition Leader’s fixed expression was much like a poker player’s.

Whether it was insults coming Shorten’s way from Coalition ministers about his character and fitness for high office, or his alleged association with wage-cutting union deals that sold out the interests of workers he once represented, the alternative prime minister seemed unaffected. A man once known for his big glass jaw has turned, outwardly anyway, into a very disciplined politician.

A bumpy five months since the July 2 election that the Coalition almost lost, Malcolm Turnbull now leads a government that seems to be finding its mojo. The headline result of the last fortnight of the parliamentary year is that, despite the horsetrading and concessions made in negotiations with Senate crossbenchers, Turnbull’s agenda is back on track.

The two pieces of legislation that the Prime Minister used to trigger his high-risk double dissolution election, both curbing the power of unions, were passed. Turnbull even secured a last-minute deal with the Greens for a workable arrangement on taxing foreign backpackers that put to rest the concerns of farmers reliant on such itinerant labour.

Where does this leave Shorten and Labor? The answer has to be: surviving quite well, prospering. Even if Shorten is seething inside at some of the flak directed his way, Labor’s leader is the closest he has ever been to becoming prime minister. The latest Fairfax-Ipsos poll shows the Coalition trailing Labor 49 to 51 per cent on a two-party preferred vote, even if the primary vote for Shorten’s party is low (33 per cent to the Coalition’s 42 per cent) and Shorten lags well behind Turnbull as preferred PM. An election victory for Labor is possible next time around.

Shorten might not be liked by many in Labor’s partyroom who would prefer someone else in his chair but his position is secure. Unlike six months to a year ago, there are no mutterings about replacing Shorten with Anthony Albanese or other possible pretenders. Since the federal election in which he performed better than expected, proving himself to be a much better politician than gentleman Turnbull, Shorten has adopted the role of a Tony Abbott-style oppositionist. The Shorten “zingers” that often fell flat have largely disappeared. In their place is hard-edge rhetoric and argument.

Shorten seems determined to ensure life is not easy for Turnbull. The election gave him a platform he had not enjoyed before. His tactic since, writ large over the past fortnight, has been to make the Turnbull government seem reactive and playing to his tune.

That’s not to say it has always worked. One of Shorten’s traits is that he often overplays his hand. In an attempt to embarrass Turnbull, he overreached this week by misquoting what the National Farmers Federation supported on the backpackers’ tax. It backfired. Indeed, Labor had a chance to be relevant and support the Coalition on the 15 per cent tax compromise, but instead stuck with its advocacy of a lower figure. It looked like petulance to stymie Turnbull, who ended up delivering anyway by securing a deal with the Greens.

Shorten also overreached by selectively quoting Immigration Minister Peter Dutton on Lebanese Muslims. Dutton was made to sound racist, when he was making a reasonable comment about security concerns related to a small part of the Muslim community. By default, the Shorten-Labor opposition made some political headway this past fortnight because of considerable criticism of the concessions Turnbull needed to make to win senate support for legislation re-establishing the Howard government’s Australian Building and Construction Commission to police militant excesses by the Construction Forestry Mining and Energy Union, and to a lesser extent, legislation setting up a registered organisations commission to boost oversight of all unions.

About 1500 companies that have already signed deals with the CFMEU, including Lendlease, will now receive a two-year grace period to comply with a new building code that blocks the union from foisting restrictions on sub­contractors and workforce numbers. The main complaint is that the revamped authority will be toothless. No doubt the concession does leave some companies exposed. Kane Constructions, which held out against the CFMEU in expectation of the legal changes, now faces costly strikes. Yet forcing Lendlease and other companies to renegotiate their agreements risked chaos too. And from these companies’ standpoint, why should they have complied in advance with legislation that, until this week, had shown little sign of passing?

No doubt the CFMEU has scored a tactical victory. And Shorten’s pledge to abolish the ABCC will maintain the CFMEU’s necessary support for his leadership — consistent with September 2013 correspondence from CFMEU national secretary Michael O’Connor that set out certain demands in return for backing Shorten against then leadership rival Albanese. Meanwhile, Turnbull’s ABCC will still have some sharp teeth via its capacity to inflict considerable damage on the CFMEU. With powers akin to a permanent royal commission, it will be able to force union officials to give evidence. Prosecutions and stiff penalties will apply for noncompliance. Illegal strikes and bans on subcontractors will be policed. The CFMEU faces a difficult future of large fines and possible jailing of officials while ever the ABCC exists.

One of Shorten’s problems next year could be to keep up the momentum if Turnbull is back on track. But the biggest danger relates to a series of court prosecutions against union officials, and related investigations following on from the royal commission into trade union corruption, that could harm Labor’s brand and drag the Opposition Leader’s past connections into the spotlight.

As the parliamentary year drew to a close, the Fair Work Commission announced it would investigate Cesar Melhem, Shorten’s former deputy at the Victorian branch of the Australian Workers’ Union. The royal commission recommended Melhem be referred to the FWC and also for possible criminal charges dating back to when Shorten was his boss. Lucky Bill has escaped direct blame, and faces no adverse findings. But Turnbull showed signs of dropping the gentleman’s approach in parliament this week: he hit Shorten hard with his association to Melhem and others.

The other festering issue that the Coalition seems willing to pursue is Shorten’s captain’s pick of his “dear friend” Kimberley Kitching to the Senate. As she recently told Andrew Bolt on Sky program, Kitching believes she will not be charged by police despite the royal commission recommending possible criminal prosecution related to her alleged false declarations and illegal completion of required tests for workplace entry permits on behalf of six Health Services Union officials.

Kitching told Bolt that the evidence of witnesses used against her in proceedings was “hearsay” and had been “exploded”. It’s a novel interpretation and possibly a figment of Kitching’s imagination. A close reading of the decision by FWC vice-president Graeme Watson shows he relied much on direct evidence, including phone logs and computer records, when he found that Kitching did sit the tests and her denials were not “truthful or reliable”. Witness evidence was not exploded.

The Federal Court found no grounds to hear an appeal. An FWC full bench upheld Watson’s decision.

Kitching might or might not be charged by police. But her saga has a way to go yet and could prove a test for Shorten’s studied smile.