The Fair Work Amendment (Corrupting Benefits) Bill 2017 quietly received its first reading in Parliament last month. Aimed at what the government calls “sweetheart deals” between business and unions and introduced to coincide with a blistering attack on Opposition Leader Bill Shorten’s integrity, the bill creates two new offences.

The first makes it an offence to give, receive or solicit a “corrupting benefit,” while the second makes giving cash or an in-kind payment to unions, apart from certain exceptions detailed in the legislation.

The legislation contains a great of subjective terminology; for example, it is an offence if someone: 

(a) (i) requests (whether or not expressly and whether or not by threats); or
(ii) receives or obtains; or
(iii) agrees to receive or obtain;
a benefit from a person (the provider) for the defendant or another person; and
(b) the defendant does so with the intention that, or the intention that the provider believes that, the receipt, or expectation of the receipt, of the benefit will tend to influence a registered organisations officer or employee (who may be the defendant). (emphasis added)

Australian Council of Trade Unions secretary Sally McManus believes there is a real risk that these provisions, subjective as they are, could be used to target and criminalise legitimate union business.

“We have very real concerns with this bill which has clearly been hastily cobbled together to divert attention from the Turnbull government’s support for cutting penalty rates for 700,000 workers,”  McManus told Crikey. 

“In their zeal to mount further politically motivated attacks on unions, the government has drafted a bill that appears to make it a crime for unions to pursue unpaid wages for workers.”

The Department of Employment denies this is the case.

“The bill very clearly provides exemptions for a range of legitimate dealings between unions and employers,” a department spokesperson told Crikey. “Arrangements that are exempted will not be prohibited.”

The level of proof regarding both new offences is the criminal standard. The prosecution (in this case, the Fair Work Ombudsman, the government body that investigates and enforces breaches of the Fair Work Act) has to establish beyond reasonable doubt an employer’s intention to to give, or a union officials intention to receive or solicit, a corrupting benefit. If an accused employer tries to claim a payment to a union falls under one of the exceptions, it then falls to the prosecution to establish — again, beyond a reasonable doubt — that the exception does not apply. 

This raises the question; just how do you establish beyond a reasonable doubt a belief or an intention?

University of Sydney law school associate professor Shae McCrystal told Crikey the bill in its current form would be difficult to enforce.

“I can see litigation under these clauses being very hard to prove — how do you establish a belief that a benefit would tend to influence someone to not discharge their duties properly?” she said. “What do all those terms actually mean in this context?”

“It’s one of the difficulties that comes about when you try to legislate for complex human behaviour.”

McCrystal compared it to the adverse action provisions of the Fair Work Act. Adverse action provisions prohibit an employer from “disadvantaging” workers (by threatening them, terminating their employment, reducing their shifts, etc) for “prohibited reasons” — this could be discriminatory, or the exercising of a workplace right (for example, you can’t be fired if you take lawful sick leave, and you can’t have your hours reduced for engaging in a protected strike).

Under these provisions, there is a reverse onus of proof; an accused employer has to prove they haven’t breached the legislation. 

For the broad “corrupting benefits” offence the bill creates, the burden of proof is on the ombudsman. If an employer is accused of breaching the prohibition of illegitimate payments from employers to unions, the burden is on the employer to point to evidence that one of the legitimate payment exceptions applies. If that happens, again, the ombudsman has to establish, beyond a reasonable doubt, that this isn’t the case.

McManus argues further that laws around improper influence should not just apply to unions and employers, and that all forms of corruption should be dealt with by an independent body.

“The ability to influence politicians, government officials in tender processes and subcontractors seeking corporate work are all issues that need to be addressed — this is why we must have an independent body to deal with corruption wherever it may occur,” McManus said.

“There cannot be one law for some and another law for the rest of us.”