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The Senate Education and Employment Legislation Committee Fair Work Amendment (Corrupting Benefits) Bill 2017 [Provisions] May 2017 © Commonwealth of Australia 2017 ISBN: 978-1-76010-574-7 This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License.

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ii MEMBERSHIP OF THE COMMITTEE Members Senator Bridget McKenzie, Chair, NATS, VIC Senator Gavin Marshall, Deputy Chair, ALP, VIC Senator Sarah Hanson-Young, AG, SA Senator Chris Ketter, ALP, QLD Senator James Paterson, LP, VIC Senator John Williams, NATS, NSW Participating members Senator the Hon Doug Cameron, ALP, NSW Senator Lee Rhiannon, AG, NSW Secretariat Mr Stephen Palethorpe, Secretary Mr Tim Watling, Inquiry Secretary Ms Natasha Rusjakovski, Principal Research Officer Ms Kate Campbell, Senior Research Officer Ms Amy Walters, Research Officer Mr Abe Williamson, Administration Officer Committee web page: www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_and_Employment PO Box 6100 Parliament House Canberra ACT 2600 Ph: 02 6277 3521 Fax: 02 6277 5706 E-mail: eec.sen@aph.gov.au iii TABLE OF CONTENTS MEMBERSHIP OF THE COMMITTEE ...................................................... iii RECOMMENDATIONS ..................................................................................vii Chapter 1.............................................................................................................. 1 Introduction ......................................................................................................... 1 Overview of the bill ................................................................................................ 1 Conduct of the inquiry ............................................................................................ 2 Compatibility with human rights ............................................................................ 2 Scrutiny of Bills Committee ................................................................................... 2 Acknowledgements ................................................................................................ 2 Chapter 2.............................................................................................................. 3 Key issues................................................................................................................... 3 The need for reform ................................................................................................ 3 Bribery offences in the FWA ................................................................................. 3 Definitional clarity .................................................................................................. 5 Disclosure ............................................................................................................... 9 Labor Senators' Additional Comments .......................................................... 11 Australian Greens' Dissenting Report ............................................................ 15 Appendix 1 ......................................................................................................... 17 Submissions and additional information .............................................................. 17 Appendix 2 ......................................................................................................... 19 Public hearings ........................................................................................................ 19 v RECOMMENDATIONS Recommendation 1 2.25 The committee recommends that the government consider the Ai Group's proposed additional exemptions to the provisions relating to cash or in kind payments to employee organisations.
Recommendation 2 2.33 Subject to Recommendation 1, the committee recommends that the Senate pass the bill.
vii Chapter 1 Introduction 1.1 On 23 March 2017, the Senate referred the provisions of the Fair Work Amendment (Corrupting Benefits) Bill 2017 (the bill) to the Senate Education and Employment Committee (the committee) for inquiry and report by 9 May 2017.1 Overview of the bill 1.2 The Fair Work Act 2009 (the Act) sets out employer and employee rights and responsibilities, providing a balanced framework for cooperative and productive workplace relations in the interests of national economic prosperity and social inclusion for all Australians.
The bill seeks to amend the Act in response to the findings of the Royal 1.3 Commission into Trade Union Governance and Corruption.
1.4 If enacted, the bill would: • make it a criminal offence to give a registered organisation, or a person associated with a registered organisation a corrupting benefit; • make it a criminal offence to receive or solicit a corrupting benefit; • make it a criminal offence for a national system employer other than an employee organisation to provide, offer or promise to provide any cash or in kind payment, other than certain legitimate payments to an employee organisation or its prohibited beneficiaries; • make it a criminal offence to solicit, receive, obtain or agree [to receive] or obtain any such prohibited payment, either personally or for another person; • require bargaining representatives for a proposed enterprise agreement (employers, employer organisations, and unions) to disclose financial benefits that the bargaining representative, or a person or body reasonably connected with it, would or could reasonably be expected to derive because of a term of the proposed agreement.
Failure to comply with these requirements can give rise to civil remedies, but will not preclude the approval of the enterprise agreement.2 1 2 Journals of the Senate, No.

34, 23 March 2017, p. 1147.

Explanatory Memorandum, Fair Work Amendment (Corrupting Benefits) Bill 2017, p. iv.

2 Conduct of the inquiry Details of the inquiry were made available on the committee's website.

The 1.5 committee also invited a number of stakeholders to make submissions to the inquiry.
Submissions were received from 11 individuals and organisations, listed at 1.6 Appendix 1.

The committee held public hearings in Canberra on 12 April 2017 and Sydney 1.7 on 13 April 2017.

A witness list can be found at Appendix 2.
Compatibility with human rights The explanatory memorandum states that the bill is compatible with the 1.8 human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.3 Scrutiny of Bills Committee 1.9 The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) considered the bill in its Scrutiny Digest 4 of 2017 and highlighted a number of matters.4 Acknowledgements The committee thanks those individuals and organisations who contributed to 1.10 the inquiry process by providing submissions and giving evidence at public hearings.
3 4 Explanatory Memorandum, Fair Work Amendment (Corrupting Benefits) Bill 2017, p. iv.

See Senate Standing Committee for the Scrutiny of Bills, Alert Digest 4 of 2017, 29 March 2017, pp.

14–20.

Chapter 2 Key issues The need for reform 2.1 The Final Report of the Royal Commission into Trade Union Governance and Corruption (the Royal Commission), released in December 2015, looked at corrupt and improper conduct in the industrial relations arena, focusing on both employers and registered organisations.
The Fair Work Amendment (Corrupting Benefits) Bill 2017 (the bill) is the government's regulatory response to several findings of the report.

It seeks to outlaw the provision of corrupting benefits and require the disclosure of legitimate benefits arising from enterprise agreements.

2.2 The inquiry attracted submissions from unions, employer groups and academics, reflecting a broad range of views.
Submitters were unanimous in their rejection of corruption, with unions notably calling for the highest standards of governance and ethical conduct on the part of their officials and members.1 Of those who did not support the bill, predominantly unions but also some 2.3 academic and industry submitters, the foremost criticisms included: • • • bribery offences being included in the Fair Work Act (the FWA, or the Act), creating an overlap between criminal and industrial law; a perceived need to improve definitional clarity in certain parts of the bill; and concerns around proposed disclosure obligations.
2.4 These issues are examined in more detail below.

Bribery offences in the FWA 2.5 The Royal Commission highlighted multiple examples of payments being made with the aim of influencing registered organisations and their officers.2 In response, the bill would: • Make it a criminal offence for a person to give a registered organisation (i.e.
a union or registered employer association), or a person associated with a registered organisation a corrupting benefit; • Make it a criminal offence to receive or solicit a corrupting benefit; • Make it a criminal offence for an employer to provide, offer or promise to provide any cash or in kind payment, other than certain legitimate payments to a union; 1 2 See for example Electrical Trades Union of Australia, Submission 1, p. 2.
Explanatory Memorandum, Fair Work Amendment (Corrupting Benefits) Bill 2017, p. i.

4 • Make it a criminal offence to solicit, receive, obtain or agree to obtain any such payment;3 Submitters were divided on the net benefit of including criminal offences in 2.6 the FWA.
2.7 Representing the view of affiliated unions, the Australian Council of Trade Unions (ACTU) described including criminal bribery offences in the Act as 'incongruous'4, submitting that: The object of the FW Act, as set out at section 3 thereof, is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians.5 The ACTU suggested that the proposed criminal bribery offences might be 2.8 better placed in the Criminal Code Act 1995.6 2.9 Ai Group supported the introduction of measures addressing the provision and receipt of corrupting benefits to the FWA, but sought clarity on the legislative basis for the proposed provisions, questioning the comparative severity of the penalties involved: Several of the provisions…are inexplicably based upon the provisions in the Criminal Code Act 1995 (Cth) which relate to the bribing of foreign officials, rather than the provisions in this same legislation that apply to the bribing of Commonwealth public officials.7 2.10 The Australian Chamber of Commerce and Industry (ACCI) expressed in-principle support for separating criminal and industrial law, in view of the benefits of avoiding conflict and overlap between the two.
However, ACCI conceded that: [T]here is a strong evidentiary basis as contained within the findings of multiple Royal Commissions that underpins the need for a stronger policy and regulatory response to discourage the giving and receiving of corrupting benefits and effect lasting cultural change.
In this regard the Australian Chamber supports the policy intent underpinning the Bill and understands that the behaviour it is intended to capture in the creation of criminal offences, notwithstanding that it may arise in industrial dealings, is behaviour that is commonly understood to be ‘criminal’ in nature rather than breaches of industrial/workplace laws more generally.8 Ai Group, Submission 7, p. 3.

Australian Council of Trade Unions, Submission 5, p. 5.

ACTU, Submission 5, p. 5.


ACTU, Submission 5, p. 5.

Ai Group, Submission 7, pp.

5–6.

Australian Chamber of Commerce and Industry, Submission 6, p. 1.
2.11 ACCI further noted the current failure to adequately address corrupt behaviour occurring in the industrial context, citing recommendations made by the Royal Commission: 5 Recommendation 40: Legislation be enacted amending the Fair Work Act 2009 (Cth) to include a provision criminalising the giving or receiving of corrupting benefits in relation to officers of registered organisations, with a maximum term of imprisonment of ten years.
Recommendation 41: Legislation be enacted amending the Fair Work Act 2009 (Cth) making it a criminal offence for an employer to provide, offer or promise to provide any payment or benefit to an employee organisation or its officials.

Certain legitimate categories of payment should be permitted, subject to strict safeguards.

An equivalent criminal offence should apply to any person soliciting, receiving or agreeing to receive a prohibited payment or benefit.
A two year maximum term of imprisonment should apply to the commission of these offences.9 2.12 ACCI concluded that inappropriate and corrupt conduct such as that identified by the Royal Commission 'warrants a unique policy response.

'10 Committee view The committee notes concerns about the inclusion of criminal offences in 2.13 legislation governing industrial relations.
However, evidence has shown that serious misconduct can and does occur in the industrial relations arena, necessitating a targeted government response.

In and of itself, the argument that introducing criminal offences into the FWA is a novel approach does not contribute meaningfully to the debate.

The committee is persuaded that, as put by ACCI, corrupt and inappropriate industrial arrangements warrant a unique policy response.
Definitional clarity 2.14 Support for tackling corrupt and inappropriate industrial conduct was strong.

At the same time, a number of witnesses sought clarity on the range of industrial arrangements the bill would capture.
2.15 Professor Andrew Stewart, an academic with considerable expertise in employment law and workplace relations, questioned whether the bill would achieve its objectives 'without creating undue uncertainty or having unnecessary consequences'.11 Professor Stewart submitted that: As the Bill stands, I believe its drafting fails on both those scores.
The essential problem is that, rather than identify with some specificity the types of practice or arrangement that are to be outlawed, the Bill relies on overly 9 See ACCI, Submission 6, pp.

1–2.

10 ACCI, Submission 6, p. 2.

11 Professor Andrew Stewart, Submission 4, p. 4.


6 broad prohibitions for which extensive exclusions must formulated.12 then be Professor Stewart identified several potential drafting weaknesses, focusing 2.16 firstly on section 536D of the bill, which outlines offences associated with giving, receiving or soliciting a corrupting benefit.
Under the proposed section, an offence would be deemed to have been committed where a payment is made with the intention of influencing a registered organisation officer or employee: i. ii.

iii.
to perform his or her duties or functions as such an officer or employee improperly; or to exercise his or her powers or perform his or her functions under this Act or the Registered Organisations Act improperly; or to give an advantage of any kind, which would not be legitimately due, to the defendant, a spouse (within the meaning of the Registered Organisations Act) or associated entity of the defendant, or a person who has a prescribed connection with the defendant.13 There is considerable ambiguity, Professor Stewart suggested, around how 2.17 impropriety is to be established: It is not clear to me how, or by reference to what standard, it is to be determined whether behaviour is 'improper'.
Some of the examples given in the EM [explanatory memorandum] seem to suggest that it would be improper merely for an organisation to be caused to act differently to what it might otherwise have been expected to have done.
The difficulties here seem obvious.14 2.18 The Industrial Law Committee of the Law Council of Australia recommended that clarification of the term 'improper' be included in the bill and through a supplementary explanatory memorandum.15 2.19 The committee sought clarity on the judicial authority underpinning the term 'improper' from the department.
The department explained that impropriety is an established concept in the context of carrying out official duties, citing a majority decision of the High Court: Impropriety does not depend on an alleged offender's consciousness of impropriety.

Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case.
When impropriety is said to consist in an abuse of power, the state of mind of the alleged offender is important: the alleged offender's knowledge or means of knowledge of the circumstances in which the power is exercised and his purpose or intention 12 Professor Andrew Stewart, Submission 4, p. 4.

13 Paragraph 536D(1)(b), Fair Work Amendment (Corrupting Benefits) Bill 2017.

14 Professor Andrew Stewart, Submission 4, p. 4.

15 Law Council of Australia, Submission 11, p. 3.


7 in exercising the power are important factors in determining the question whether the power has been abused.

But impropriety is not restricted to abuse of power.
It may consist in the doing of an act which a director or officer knows or ought to know that he has no authority to do.16 2.20 The committee therefore notes that 'improper' conduct is not restricted to instances of conscious abuse of power, and acknowledges the department's evidence indicating that the term is well-established in the relevant context.
Defining 'corrupting' benefits The bill also seeks to prohibit employers giving or being asked to give money, 2.21 goods or services to a registered union or a person connected to a union.
The bill accounts for payments required by legitimate industrial arrangements through the inclusion of a series of exemptions at proposed subsection 536F(3): Subsection (1) does not apply to the following cash or in kind payments: a) a payment to the organisation: i. made by deduction from the wages of an employee of the defendant who has agreed in writing to become a member of the organisation; and ii.
made for a membership fee payable by the employee; b) a benefit provided and used for the sole or dominant purpose of benefiting the defendant’s employees; c) a gift or contribution deductible under section 30-15 of the Income Tax Assessment Act 1997 and used in accordance with the law; d) a payment made, at market value, for goods or services supplied to the defendant in the ordinary course of the organisation’s business for purposes in relation to the ordinary course of the defendant’s business; e) a payment made under or in accordance with a law of the Commonwealth, or a law of a State or Territory; f) a benefit provided in accordance with an order, judgment or award of a court or tribunal; g) a non-corrupting benefit prescribed by, or provided in circumstances prescribed by, the regulations.
2.22 While supporting the prohibition on the provision of inappropriate payments to unions, the Ai Group provided several examples of common benefits provided by employers and employer associations to union officials that would appear to fall outside these exemptions.
These benefits would potentially encompass nominal hospitality, small gifts, and invitations to a farewell dinner function including: 16 R v Byrnes, (1995) 183 CLR 501, cited in Department of Employment, answer to question on notice, received 1 May 2017, p. 11.
8 • A meal and/or refreshments provided by an industry association or a Government Department / Agency for a meeting with a union official that is eligible to represent any of its employees: For example if Ai Group had a meeting in its offices at 12.30pm with the National Secretary of the ASU (a union which is eligible to represent Ai Group’s clerical staff) to discuss industry or award matters, and Ai Group provided some sandwiches and coffee, this “benefit” would appear to not be covered under any of the exemptions… • A nominal gift given to a union official for speaking at a Conference organised by an industry association.
if Ai Group For example, the National Secretary of invited Professionals Australia (which is eligible to represent Ai Group’s professional IT staff) to speak at its Annual Workplace Relations Conference, and Ai Group gave the official a $20 bottle of wine in appreciation, this “benefit” would appear to not be covered under any of the exemptions.

• An invitation to a farewell dinner or function.


For example, if Ai Group invited the National Secretary of the AMWU, ASU and/or Professionals Australia to a retirement function for a longstanding, senior Ai Group staff member, this “benefit” would appear to not be covered under any of the exemptions.17 2.23 Accordingly, the Ai Group recommended that following additional exclusions be included in the bill: Benefits with a nominal value (e.g.
up to the value of one penalty unit – currently $180), including, for example: • Free or subsidised meals and/or beverages provided to union officials infrequently or reciprocally; • Gifts of single bottles of reasonably priced alcohol, chocolate or other token gifts given at functions, events, etc; • Invitations to farewell functions, annual dinners, award ceremonies and other appropriate functions.18 The committee supports this recommendation and encourages the government 2.24 to consider amending the bill in light of this evidence.
Recommendation 1 2.25 The committee recommends that the government consider the Ai Group's proposed additional exemptions to the provisions relating to cash or in kind payments to employee organisations.

17 Ai Group, Submission 7, pp.

8–9.

18 Ai Group, Submission 7, p. 9.
9 Disclosure 2.26 If enacted, the bill would increase transparency by requiring bargaining representatives (employers, employer organisations and unions) for a proposed enterprise agreement to disclose details of expected financial benefits: …that the bargaining representative, or a person or body reasonably connected with it, would or could reasonably be expected to derive because of a term of the proposed agreement.19 2.27 The rationale behind the proposed disclosure obligation was undisputed, with the ACTU describing it as 'coming from the right place'.20 However, linking the proposed disclosure obligations to the definition of related parties in the Fair Work (Registered Organisations) Act was seen as problematic.
The Registered Organisations Act, the ACTU explained, is more straightforward in its application of related party regulation: [T]he way the registered organisations act uses related party regulation is for the union to identify when its officers are entering into dealings with themselves or are causing the union to enter into relationships with people to disclose, 'These are the related parties and this is the money that's going.'
Here you have a situation where an employer, in implementing the terms of the agreement, might make an arrangement with a business who, unbeknownst to the union officials in that branch, has some stepbrother company related person in some other branch of the union in another part of the country who derives a benefit as a result of that, and that is casting too wide a net.
I think you need to concentrate on moneys that the union or a branch of the union are receiving, rather than having this sort of related party.21 2.28 Other stakeholders did not share this view.
Citing the need for a considerable increase in transparency in an environment in which conflicts of interest are present, ACCI submitted that the proposed changes would bring about positive change.22 Similarly, the Industrial Law Committee of Law Council of Australia's 2.29 Federal Litigation and Disputes Resolution Section did not have any concerns relating to the sections on disclosure, describing them as 'clear and appropriate.

'23 The department underscored the need to bolster transparency.
As the bill 2.30 seeks to extend disclosure obligations to employers, the department explained, its 19 Explanatory Memorandum, Fair Work Amendment (Corrupting Benefits) Bill 2017, p. i.

20 Mr Trevor Clarke, Director, Legal and Industrial, Australian Council of Trade Unions, Proof Committee Hansard, 12 April 2017, p. 19.

21 Mr Trevor Clarke, Director, Legal and Industrial, Australian Council of Trade Unions, Proof Committee Hansard, 12 April 2017, p. 21.

22 ACCI, Submission 6, p. 15.


23 Law Council of Australia, Submission 11, p. 4.

10 enactment would allow employees to make better-informed decisions when voting on enterprise agreements.24 Committee view 2.31 The committee recognises concerns around the difficulty of establishing whether behaviour is improper, noting that industrial arrangements between unions and employers are inherently complex.
The proposed legislation will clearly require both businesses and unions to reflect on and review their existing practices to ensure that improper arrangements are not a feature of their dealings.

The committee supports calls for serious misconduct to attract serious 2.32 penalties under the FWA.

Union officials, by virtue of their role, have a higher moral duty towards the people whose interests they represent, and all necessary steps must be taken to protect against improper conduct.
In protecting workers, the committee also supports an end to practices which see employers in effect paying for industrial peace, and is of the view that introducing strong penalties for corrupt conduct will be a positive step towards this goal.

To this end, the committee supports the bill.

Recommendation 2 Subject to Recommendation 1, the committee recommends that the 2.33 Senate pass the bill.

Senator Bridget McKenzie Chair 24 Department of Employment, Submission 2, p. 5.
Labor Senators' Additional Comments 1.1 Labor Party senators broadly agree with the objectives of the bill.

Serious misconduct should attract appropriate penalties, and Labor senators agree that, as their members' representatives, officials of registered organisations should be held to a high moral standard.

Corrupt behaviour – where it exists – should not be tolerated, and the introduction of strong penalties will be a positive step in eliminating it.
It is for these reasons that Labor senators' remarks take the form of additional comments, rather than a dissenting report.

1.2 Notwithstanding Labor senators' support for the bill, the committee received clear and repeated evidence that some amendments were necessary.

These shortcomings were identified in evidence from both employers and employees.
For example, Ai Group submitted that: Some important changes are needed to the Bill to ensure fairness to employers, employees, registered organisations, officers of registered organisations, and employees of registered organisations.1 In summary, some parts of the bill lack sufficient definitional clarity, while to considerable, quite possibly unintended 1.3 other provisions may give rise consequences not only for registered organisations, but also employers.
Having considered the evidence put to the committee, Labor senators consider 1.4 that some provisions of the bill as it stands could serve to hobble its effective administration, and potentially hinder successful prosecutions.

The suggested amendments have been drafted to strengthen the operation of the bill, and bring more certainty to those who would be subject to it.

Accordingly, Labor senators consider that the bill should be amended to 1.5 address the following significant problems.
Giving, receiving or soliciting corrupting benefits 1.6 The ‘corrupt’ behaviour proposed in the offences is threefold: improperly performing the duties of an official of a Registered Organisation, exercising powers or functions under the FWA or Registered Organisations Act improperly, and giving an advantage of any kind, which would not be legitimately due, to the employer.
As drafted, the prohibition on giving an advantage ‘not legitimately due’ 1.7 would not have any connection to ‘the affairs of the organisation or branch’ of the registered organisation, as was recommended by the Heydon Royal Commission.

This limb of the offence appears to have been lifted from the bribery of foreign officials offence in the Criminal Code, but not appropriately amended.

1 Ai Group, Submission 7, p. 3.


12 1.8 The remedy is to require that the advantage must be ‘in connection with the affairs of the organisation or branch, including the affairs of the members of the organisation or branch’.
Recommendation 1 1.9 Labor senators recommend the amendment of proposed subparagraphs 536D(1)(b)(iii) and 536D(2)(b)(iii) to require that an advantage must be ‘in connection with the affairs of the organisation or branch, including the affairs of the members of the organisation or branch’.

The bill would impose no requirement that conduct be engaged in 1.10 ‘dishonestly’.
Instead, it would require that the giving or receiving be carried out with the intention to influence an officer of a registered organisation to act ‘improperly’.

The bill contains no definition of ‘improperly’, only that it is a matter for the trier of fact.

In contrast, the existing Criminal Code offences of bribing and providing corrupting benefits to a Commonwealth public official require dishonesty, which is defined.
Recommendation 2 1.11 Labor senators recommend that these proposed new offences be amended so as to make them consistent with the Criminal Code offences, and to define the term ‘improper’.
1.12 The proposed test for the employer offering or paying a bribe is an ‘intention to influence’ a registered organisation official to act improperly, while the proposed test for the registered organisation official asking for or receiving the bribe is an intention that the offeror believes that the official ‘will tend to be influenced’ to act improperly.

The Government's justification for these different tests is wholly inadequate.
Labor senators consider that the ‘tend to influence’ test should be removed, and the relevant provisions be amended to be consistent with the drafting and penalties of the existing bribery of Commonwealth officers and corrupting benefits offences in the Criminal Code (sections 141.1 and 142.1).
Recommendation 3 1.13 Labor senators recommend that proposed paragraph 536D(2)(b) be amended to remove the proposed 'tend to influence' test, and make it consistent with the drafting and penalties of the existing bribery of Commonwealth officers and corrupting benefits offences in the Criminal Code (sections 141.1 and 142.1).
Making cash or in kind payments to a registered organisation 1.14 The bill would create a strict liability offence, where the giving or receiving of cash or in kind payments between an employer and registered organisation is an offence, unless it falls within the enumerated exceptions.

Given that the stated purpose of this offence is to prevent corrupt or illegitimate payments, the offence should have a fault element of dishonesty.
13 Recommendation 4 1.15 Labor senators recommend that the proposed new offences in proposed subsection 536F(1) be amended to include a fault element as a requirement for the offences to be made out.

1.16 It is not currently clear whether proposed section 536F would make it an offence for registered organisations to request and receive payment from employers of wages or entitlements owed to ex-employees.
Similarly, that provision may make it an offence for registered organisations to negotiate the settlement of disputes with employers before court proceedings are commenced.
Recommendation 5 1.17 Labor senators recommend that registered organisation requests for, and receipt of, payments from employers of wages or entitlements owed to ex- employees, and the negotiation and settlement of disputes with employers before court proceedings are commenced, be enumerated exceptions under proposed subsection 536F(3).
Disclosure requirements 1.18 The bill would require registered organisations to disclose any potential benefits from an enterprise agreement that may flow to an extended and unreasonable number of people and groups.

Accordingly, 'related party' should be defined more tightly than the bill does in its present form.
Recommendation 6 1.19 Labor senators recommend that the definition of 'related party' under the proposed disclosure requirements be amended to specify the registered organisation, all branches of the organisation, any entity controlled by the organisation, and the officers and spouses and other family members of the organisation or branch of the organisation that is the bargaining representative.
Conclusion 1.20 Given the flaws in the bill identified by both employer and employee representatives, the amendments proposed are a reasonable package of improvements.

None of them could be said to thwart the intention of the bill or to render the offences impotent.

On the other hand, they do address some of the overreach, whether intentional or not, in the drafting of the offences which have potentially significant consequences for registered organisations and employers.
Senator Gavin Marshall Deputy Chair Australian Greens' Dissenting Report 1.1 Corruption in any form has no place in Australian society.

Time and time again we have seen politicians representing corporate interests over the interests of the public.

We have seen revelations of misuse of political entitlements and we have seen evidence of systemic exploitation of workers amongst some of Australia’s major employers.
The Fair Work Amendment (Corrupting Benefits) Bill 2017 will do nothing to prevent this from continuing.
1.2 As pointed out in the Electrical Trades Union’s (ETU) submission, ‘while the Turnbull government tries to establish an agency whose purpose is to attack and weaken its political opponents, the government itself is providing the strongest case for the establishment of a national anti-corruption agency through the recent scandals of the former Minister for Human Services and the former Victorian Liberal Party Director.’1 1.3 The lack of consultation with key stakeholders is worrying.
In their submission, the ETU stated: ‘Any serious attempts to improve governance should include all stakeholders, unions, business representatives groups, the government, the opposition and the crossbench, in that way ensuring a genuine set of improvements and to avoid any ideological bias.’2 The process for such changes to industrial relations laws can reasonably be 1.4 expected to be submitted to the National Workplace Relations Consultative Council.
However, as pointed out by the Australian Council of Trade Unions (ACTU): ‘As a minimum the Bill should have been submitted to the Committee on Industrial Legislation (a subcommittee of the National Workplace Relations Consultative Council).

This bill was, inexplicably, never submitted to the committee.’3 1.5 The unprecedented placing of criminal offences in the Fair Work Act 2009 is concerning.
Existing bribery offences relating to Commonwealth officials are already contained in the Criminal Code Act 1958 and as the ACTU pointed out in their submission; ‘bribery offences relating to Commonwealth and Foreign Officials are found in the Criminal Code Act 1995.

That Act is the appropriate legislative vehicle for bribery offences.’4 1.6 It is clear that anti-corruption measures at a federal level are inadequate.
The Federal government is now the only jurisdiction without the infrastructure to confront corruption.

A serious approach to tackling corruption in Australian must include the establishment of a federal, broad-based anti-corruption watchdog.
A National 1 2 3 4 Electrical Trades Union, Submission 1, p. 5 Electrical Trades Union, Submission 1, p. 3 Australian Council of Trade Unions, Submission 5, p. 5 Australian Council of Trade Unions, Submission 5, p 5 16 Independent Commission Against Corruption (ICAC) would oversee anticorruption at a federal level, preventing corruption occurring and investigating claims as they arise.
As pointed out in the ETU’s submission: ‘At the May 2015 ACTU Congress 1.7 the entire union movement unanimously supported the establishment of an independent national corruption watch dog to ensure that all Australian institutions, government, corporate, financial, sporting and large membership based were able to be corruption free.’5 Recommendation 1 1.8 The government establish a permanent National ICAC that has federal jurisdiction to prevent corruption occurring and investigate claims as they arise.
Recommendation 2 1.9 The bill should not be passed.
Senator Lee Rhiannon Australian Greens 5 Electrical Trade Union, Submission 1, p. 1 Appendix 1 Submissions and additional information Submissions Submission Number Submitter Electrical Trades Union of Australia Department of Employment Mr Gerard de Valence Professor Andrew Stewart Australian Council of Trade Unions Australian Chamber of Commerce and Industry Ai Group Business Council of Australia Australian Manufacturing Workers' Union Construction, Forestry, Mining and Energy Union Law Council of Australia Answers to questions taken on notice 1 2 Answers to written questions on notice, asked by Senator McKenzie, by the Australian Council of Trade Unions, received 21 April 2017.
Answers to questions taken on notice by the Department of Employment at a public hearing in Canberra, 12 April 2017, received 1 May 2017.

Appendix 2 Public hearings Parliament House, Canberra, 12 April 2017 Committee members in attendance: Senators McKenzie, Marshall and Cameron.
Witnesses Council of Small Business Australia Mr Peter Strong, Chief Executive Officer Professor Andrew Stewart, private capacity Australian Council of Trade Unions Mr Trevor Clarke, Director, Legal and Industrial Shop, Distributive and Allied Employees Association Mr Gerard Dwyer, National Secretary Franchise Council of Australia The Hon Bruce Billson, Executive Chair Mr Damian Paull, Chief Executive Officer Mr Stephen Giles, Director National Retailers Association Ms Dominique Lamb, Chief Executive Officer WEstjustice Ms Tarni Perkal, Senior Solicitor Employment Project Department of Employment Ms Kelly Hoffmeister, A/g Chief Counsel, Workplace Relations Legal Group Dr Alison Morehead, Group Manager, Workplace Relations Policy Group Ms Jody Anderson, Branch Manager Ms Rachel Volzke, Senior Executive Lawyer Fair Work Ombudsman Ms Natalie James, Fair Work Ombudsman Mr Michael Campbell, Deputy Fair Work Ombudsman Fair Work Commission Ms Ailsa Carruthers, Acting General Manager Mr Murray Furlong, Director Tribunal Services Mr Brendan Hower, Manager, Member Support Team Tribunal Services 20 Sydney, New South Wales, 13 April 2017 Committee members in attendance: Senators McKenzie, Marshall, Cameron and Rhiannon.
Witnesses Australian Chamber of Commerce and Industry Ms Alana Matheson, Deputy Director Workplace Policy Mr Dick Grozier, Associate Director Workplace Policy Ai Group Mr Stephen Smith, Head of National Workplace Relations Policy Mr Brent Ferguson, National Manager, Workplace Relations Advocacy and Policy Mr Gerard de Valence, private capacity Australian Federation of Employers and Industries Mr Garry Brack, Chief Executive Officer