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Wednesday, 25 May 1983
Page: 848


Senator PETER BAUME(10.35) —I move:

(1) Page 28, after clause 45, insert the following Division:

'Division 2A-Failure to work as directed

No work as directed-no pay.

45A. (1) Where an officer or temporary employee refuses or fails to comply with a direction given by a person having authority to give the direction, being a lawful direction with respect to work that he is performing or is to perform, the Managing Director may declare that the officer or employee is not to be paid salary.

(2) A declaration under sub-section (1) in relation to the refusal or failure of an officer or temporary employee to comply with a direction-

(a) shall specify the time (which may be a time before the declaration is made but not earlier than the time when the officer or employee refused or failed, or first refused or first failed, to comply with the direction) from which the declaration is to have effect, or is to be deemed to have had effect; and

(b) has effect and shall be deemed to have had effect, according to its tenor, from the time so specified until it is revoked in accordance with this section.

(3) An officer or temporary employee is not entitled to be paid salary in respect of any period in respect of which a declaration under sub-section (1) has effect, or is to be deemed to have had effect, in relation to him.

(4) The Managing Director-

(a) may, at any time, vary or revoke a declaration in force under sub-section ( 1) either wholly or in relation to a specified officer or temporary employee; and

(b) shall, upon becoming satisfied that an officer or temporary employee in respect of whom a declaration under sub-section (1) is in force has been complying, or will comply, from a particular time, with all relevant directions with respect to the work that he is performing, or is to perform, given by persons having authority to give those directions, revoke, as from that time, that declaration, or that declaration in its application to that officer or employee, as the case requires.

(5) A declaration made under sub-section (1) in respect of a refusal or failure of an officer or temporary employee to comply with a particular direction, or with particular directions, has effect in accordance with sub-section (2) notwithstanding that, at any time while it is in force, the officer or employee-

(a) attends for duty and performs work other than work to which that direction, or any of those directions, as the case requires, relates; or

(b) attends for duty and, in the performance of his work, complies with that direction, or with some or all of those directions, as the case requires, in part only.

(6) A declaration under sub-section (1), and a variation or revocation of such a declaration-

(a) shall be made in writing; and

(b) shall be signed-

(i) by the Managing Director; or

(ii) by a person to whom the Managing Director has delegated his powers under this section.

(7) Subject to sub-sections (8) and (9), the powers conferred on the Managing Director by this section are in addition to, and not in substitution for, any other powers conferred by or under this Act on the Corporation, on the Board, on the Managing Director or on any other person in relation to an officer or temporary employee.

(8) While a declaration under sub-section (1) is in force in respect of the refusal or failure of an officer or temporary employee to comply with a direction, or with 2 or more directions, proceedings shall not be taken against the officer or employee under section 64 in respect of any refusal or failure of the officer or employee in respect of which that declaration was made.

(9) Where proceedings are taken against an officer or temporary employee under section 64 in respect of any refusal or failure of the officer or employee to comply with a direction, or with directions of the kind referred to in sub- section (1), a declaration shall not be made under sub-section (1) in respect of any refusal or failure of the officer or employee in respect of which those proceedings have been taken unless those proceedings have been finally determined or otherwise terminated.

(10) Where a declaration is made under sub-section (1) in respect of an officer or temporary employee, or such a declaration is varied or revoked, the Managing Director shall cause such notice as he deems appropriate to be given of the making of the declaration or of the variation or revocation of the declaration, as the case may be.

(11) The period during which a declaration under sub-section (1) has effect in respect of an officer or employee forms part of his period of service or employment under this Act for the purposes of the Superannuation Act 1976 but does not, unless the Managing Director otherwise determines, form part of his period of service or employment under this Act for any purpose of this Act or of any other Act.

(12) In this section, unless the contrary intention appears-

'direction' includes an order and an instruction;

'salary' includes wages or other remuneration and any allowances that are declared by the rules to be included in salary for the purposes of this definition.

Declarations to prevail over awards

45B. (1) Section 45A has full force and effect, and declarations in force under sub-section 45A (1) have full force and effect according to their tenor, notwithstanding any inconsistency-

(a) with any other provision of this Act;

(b) with any other law of the Commonwealth enacted before the commencing day; or

(c) with any award made before, on or after the commencing day.

(2) Section 45A shall be deemed to be a prescribed provision of the Australian Broadcasting Coroporation Act 1982 for the purposes of-

(a) sub-section 22 (2) of the Public Service Arbitration Act 1920; and

(b) sub-section 41A (1) of the Conciliation and Arbitration Act 1904.

(3) Except as provided in sub-section (1), nothing in a declaration in force under sub-section 45A (1) shall be taken as affecting-

(a) the application of any law, or of any award, to or in relation to an officer or temporary employee; or

(b) the terms and conditions of employment of an officer or temporary employee. '.

These clauses have the effect of returning to the Australian Broadcasting Corporation Bill the no work as directed, no pay provision. During the second reading debate I confined myself to the principles behind the Bill. I did not provide arguments for the amendments which we would move at the Committee stage. I understand that we may not get unanimous support for our amendments. Be that as it may; we are moving them because we think there is merit in them. These amendments tend to be misunderstood.

We believe that the first principle of good industrial relations is, of course, for management to consult its work force about any matters which affect it. We think this should be done in detail. We think the ideas of everyone involved in a work place should be sought and implemented where practicable. If conflicts arise we believe consultation should be in operation. We know that by adopting a consultative approach most industrial relations problems can either be prevented or, if they occur, speedily brought to a resolution. We are not in any way trying to suggest that one goes down the track of confrontation. We do not believe in confrontation. It does not suit anyone and does not solve anything.


Senator Cook —When you were in government you practised it all the time.


Senator PETER BAUME —We have an interjection from someone who has a fixed view. I am trying to put the context in which we are moving for these provisions. In the non-government sector-in private businesses-if people will not do the work which they are properly asked to do, they do not get paid.


Senator Button —That is not true.


Senator PETER BAUME —In many cases it is true. We think that sensitive and enlightened management will be able to produce harmonious industrial relations. But there are occasions in this country when bans or limitations are imposed. We think there are occasions when the contract of service between an employing agency and its officers is breached. In those circumstances-I do not think there is any argument on this point-some kind of sanctions are necessary to assist management. That principle has an application in both the private and public sectors. One such sanction is the no work as directed, no pay provision. We do not think it should be resorted to lightly-it is in much legislation-but we believe it should exist in principle. We think that in principle there is nothing wrong with it. Employees' contracts of service may be negotiated individually or may be determined collectively by a tribunal. But if an employee refuses to work in accordance with his or her contract of service there is no reason in principle why they, he or she, should be paid while refusing to do that work.

A contract of service almost invariably requires that a person work as required by a superior. Consequently, a refusal to work in accordance with this requirement, we think, justifies sanctions and loss of pay or even dismissal. We think that, like all sanctions, it is a matter of last resort. It is something that has not been used by the ABC but it has been available. I think that the existence of sanctions is appropriate in industrial legislation. If management did not consult and inform its employees adequately, and then went ahead and capriciously used a sanction of the kind that we think should be in this Bill, it would be counterproductive, would magnify a dispute and would cause a series of ill effects. We do not believe that that is what the provision should be there for.

We had an industrial dispute in the Department of Social Security a year or so ago. That in fact was resolved partly because the no work as directed, no pay provisions existed. The Government has deleted the relevant clauses from the previous Government's Bill. We are not seeking to reinstate them so that they will be used in a ready, frequent or capricious fashion, but we believe that as a matter of principle they should be restored. The very existence of the provision may act as a sanction and may obviate the need to use it. If consultation and reason fail there could be a case-in fact, there may be no option at that stage-for management to use the provision as a means of helping to resolve a dispute. We do not see this as aggravating disputes. We believe the provision is not unreasonable and should be returned to the Bill. I have not tried to address the Committee in forceful terms of purple prose. I have put a genuine Opposition view that this is not an unreasonable provision. We think it is wrong that it has been removed. We are seeking the Government's agreement to our amendments to restore this provision to the legislation.