Christian Porter prepares ‘get Setka’ CFMEU law

The Morrison government will propose laws to allow the break-up of the CFMEU.

Victorian CFMEU secretary John Setka. Picture: Stuart McEvoy

The Morrison government will propose laws to allow the break-up of the CFMEU in a new strategy designed to isolate the union’s militant construction division and its Victorian secretary, John Setka.

Capitalising on the civil war engulfing the CFMEU, Attorney-General Christian Porter said he would bring a bill to parliament next week to permit disaffected divisions of an amalgamated union to vote to break away and form their own stand-alone union, taking their assets and members with them.

If passed, the legislation would open the way for members of the CFMEU’s mining and energy division, as well as its manufacturing division — both of which have fallen out with the rival construction and maritime divisions — to vote to leave the union.

Government sources separately confirmed the death of the Ensuring Integrity Bill, which was shelved by the Coalition at the start of the pandemic. If the disaffected divisions break from the CFMEU, the government will examine further legislation that specifically targets its construction and maritime divisions.

Under current law, divisions of an amalgamated union are prevented from de-merging five years after amalgamation, meaning the mining and energy division and the manufacturing division are unable to leave the Construction, Forestry, Maritime, Mining and Energy Union.

The new bill, to be introduced at the same time as the government’s industrial relations omnibus bill, would allow the Fair Work Commission to approve a ballot of members to vote on whether to split after the usual five-year period has elapsed.

“Let me be very clear what this is about,” Mr Porter said.

“It means a decent, hardworking division of an amalgamated union that is dissatisfied with the state of their union but would otherwise be unable to leave, will have that option available … if this bill is passed by parliament.”

Mr Porter said while registered organisations covered employer and employee organisations, “the appalling behaviour of the CFMEU has driven some divisions within that organisation to consider their options”.

“Divisions of the CFMEU would, under these proposals, be able to apply to the FWC for a ballot of their members to decide whether to break away,” he said.

“If the FWC approves the ballot going ahead and it is successful, divisions of the CFMEU could then formally withdraw from the CFMEU and form their own, stand-alone union, taking their members and assets with them.”

Tony Maher, general secretary of the mining and energy division, quit last week as CFMEU national president, accusing the construction division of bullying, and declaring the union “impossibly divided and dysfunctional with no repair in sight”.

He said the mining and energy division would operate as an independent federal union, withdrawing its involvement in CFMEU forums and activities.

Michael O’Connor resigned as CFMEU national secretary in November after a majority of officials sided with Mr Setka to force him out. He said it “can be soul-destroying watching what was once a unified union split”.

Mr O’Connor will stay on as the national secretary of the union’s manufacturing division but it will boycott union meetings involving construction and maritime division officials.

Mr Setka resigned from the ALP in October 2019 in the wake of a lengthy bid by Anthony Albanese to have him expelled. The Labor Leader had accused Mr Setka of making derogatory comments about the work of anti-violence campaigner Rosie Batty. The union leader said these comments had been taken out of context.

Both Mr Albanese and Australian Council of Trade Unions secretary Sally McManus have called for his resignation.

Under the government’s proposed legislation, the FWC would be required to consider a range of factors before approving an application, including whether the amalgamated organisation had a record of not meeting the standards for registered organisations and “any contribution of the constituent part seeking to withdraw, to that record”.

The commission would consider whether the amalgamated organisation had a record of not complying with workplace or safety laws, and any contribution of the constituent part to that record; as well as the likely capacity of the constituent part that forms a new organisation to promote and protect the economic and social interests of its members.

Where the FWC determined the organisation had a record of not complying with workplace and safety laws and that record was not due to the division seeking to breakaway, it must accept the application of the division to hold a ballot to withdraw.

“Freedom of association is a fundamental principle of Australia’s industrial laws and this means employees should have the right to associate in organisations according to their wishes,” Mr Porter said. “A clear shortcoming of the current law means that even if the performance or actions of one part of an amalgamated organisation fall beneath proper, lawful standards, and even if other members … who do the right thing do not believe it is in their best interests to stay attached, can’t leave, even if the majority of members wish to.

“Within the union movement there are clear examples where the very poor conduct of one part of a union is impeding the ability of other divisions of the union to work effectively in the interests of their members.

“The government’s bill will fix this problem and put the destiny of those members of parts of registered organisations who are dissatisfied back in their own hands.”

The bill’s introduction will coincide with the release of the industrial relations omnibus bill, which will then be subject to a Senate inquiry.

The bill proposes life of project agreements, a requirement for the Fair Work Commission to generally approve enterprise agreements in 21 days, and changes to the better off overall test to expedite approval of deals supported by an employee majority.

The government will also seek the introduction, through Fair Work, of ­“loaded rates” for awards covering workers in retail, hospitality, restaurants and licen­sed clubs. Mr Porter said the bill would have the “singular focus of breaking down existing barriers to job growth” and would not be ideologically based or contain radical changes.

“This bill effectively kickstarts another round of consultation through the Senate committee process and while different groups may have wanted more or less in some areas, it is critical that all parties maintain the constructive approach shown through the (industrial relations) working groups into that Senate process,” he said. “The danger is that if key players inside and outside the parliament revert to their traditional ideological corners, we will not be able to provide business and industry the operating environment they need to create jobs and help Australia move quickly from pandemic to full recovery.”