Is this a bad time to talk about Qantas, PwC or the big banks? Some people would argue that calling for corporates to face the same treatment that has been meted out to the CFMEU is a clear-cut case of “whataboutism” and a defence of (alleged) union corruption.
I ask the question in light of the CFMEU’s alleged “rife infiltration by bikies and organised criminals, intimidation and allegations of corruption”, uncovered by Nine reporters Nick McKenzie, David Marin-Guzman and Ben Schneiders and published in July.
The union has now been put into administration for at least three years and hundreds of officials have been fired, following legislation passed with Coalition support, which may still face legal challenges.
Perhaps waiting until the dust has settled would be a better time to ask why the government didn’t threaten to legislate the Australian arm of PwC into administration when it was revealed — similarly to the CFMEU, by legally untested media coverage — that it had leaked confidential tax information to enrich itself and its clients?
Obviously, not everyone agrees.
The CFMEU national secretary’s reference to Labor’s approach as “blue-collar paternalism” suggests he’s willing to draw comparisons — but he’s not exactly a neutral observer here. But some who disagree with the CFMEU on the necessity of the legislation don’t disagree with the general principle to which its secretary is alluding.
Professor Anthony Forsyth from RMIT’s Graduate School of Business and Law said he “agree[d] there is a double standard about the poor behaviour of the banks and other corporates”.
“But that doesn’t mean we look the other way in response to what is alleged against the CFMEU,” he told Crikey.
“I view this from the perspective of the damage it is doing to the labour movement more broadly,” said Forsyth, who describes himself as a “strong supporter of trade unions”.
Forsyth said the legislation was necessary “as the CFMEU was going to oppose a court-appointed administrator, probably resulting in a months-long legal battle” — essentially the argument of Employment and Workplace Relations Minister Murray Watt.
Meanwhile, organisations that have stridently criticised the CFMEU legislation are also not averse to posing questions of consistency.
President of the NSW Council for Civil Liberties Lydia Shelly told Crikey that many Australians “will no doubt understand just how different some of the treatment of corporate wrongdoing is, in comparison to what’s alleged to have been seen by some of the unions”.
“We haven’t seen anything like it in Australia,” Shelly said about the legislation, which “threatens the principles of natural justice and procedural fairness”, according to the council.
“In order to maintain any shred of legitimacy that the Australian government, including the state governments, have with the public … they must be consistent, and that consistency must extend to investigating their own wrongdoing, not just the wrongdoing that is alleged to have occurred in the corporate world,” she said.
“If the government is serious about looking into wrongdoing … they’re in a position to look at their own wrongdoing,” she said, specifically referring to the comparable lack of urgency with which governments have acted on issues such as robodebt and veteran suicides.
Barrister and political commentator Greg Barns told Crikey that such “draconian” legislation had never been brought to bear on “any corporation”.
However, pointing to the CFMEU administrator’s power to permanently ban CFMEU officials from holding office, he said that some white-collar criminals had faced lifetime bans from acting as company directors.
“It’s relatively rare, but it does happen. But that’s done through a process through ASIC [the Australian Securities and Investments Commission], and people can appeal it.”
It’s not yet clear whether blacklisted-for-life CFMEU officials will be able to appeal such decisions.
There’s also “never been any suggestion of legislating in respect of the banks, specifically”, Barns said, although broader corporate regulation covering them came into effect off the back of the banking royal commission.
Among other damning findings, the 2019 royal commission found that banks had promoted junk insurance policies, failed to verify creditworthiness before granting home loans, and knowingly raised credit card limits on customers with gambling problems.
“To be this specific, when you already have a mechanism in the Federal Court to deal with this, you could only say it’s politics,” he said in reference to the new CFMEU laws.
Barns also referred to the record profits Qantas posted after receiving JobKeeper support funds at the height of the COVID-19 pandemic.
“Qantas got all that COVID money and pocketed it,” Barns said, adding that while the extent of legislative power would always be tested in court, there was no clear reason why the government couldn’t have taken immediate legislative action against the airline.
As an aside, then-Qantas CEO Alan Joyce resorted to a bit of whataboutism himself when asked about paying back the funds:
“Should our people who got the money for JobKeeper pay that back? I’d say no, because that’s asking them to pay it back in a difficult period of time, so what money do we pay back exactly?”
Beyond those interviewed above, Labor’s legislative move has united Australian Financial Review columnists and senior trade union lawyers in highlighting the dangers of an inconsistent approach — even if they disagree on what the approach should be.
While the CFMEU, PwC and Qantas are all different entities — and there are certainly different legal technicalities involved in coming down on the latter two as hard as Labor has come down on the CFMEU — public attention is a fickle commodity. Right now might just be the best possible time for a bit of whataboutism.
Is Labor’s handling of the CFMEU unfair? Should governments have come down harder on the banks, Qantas or PwC? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.
