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Monday, 18 November 1996
Page: 5537

Senator MARGETTS(9.22 p.m.) —by leave—I move:

(77)   Schedule 14, item 9, page 178 (after line 15), before section 187AA, insert:

187AAA Interpretation

In this part, industrial action means action of a kind referred to in paragraphs (d), (e), (f) and (g) of the definition of industrial action in subsection 4(1).

(78)   Schedule 14, item 9, page 179 (lines 1 to 3), omit paragraph (e).

It is quite a difficult debate to be involved with sometimes tonight, because if people have incorporated comments about entire areas, including Greens (WA) amendments, there may well be comments that have been made about my amendments which I will not have had the opportunity to know about or respond to. That is something I would like put on the record tonight. It should be noted that, in the outcome, if there are comments about what we have done or said, it makes it extremely difficult and very unfair if those comments are incorporated without anybody having a chance to respond to the particular issues that we are putting up.

Having said that, amendments Nos 77 and 78 amend the clause on payments in relation to periods of industrial action to avoid a potentially outrageous implication. It is possible—I am sure this was purely unintentional—that, as the clause currently stands, an employer must not make a payment to a worker who is engaged in industrial action, such as a work to rules campaign or a ban on administering dole diaries, which is a contemporary example. It might also include employees engaged in a campaign of, as we mentioned before in relation to workers' health and safety, avoiding a dangerous situation or unsafe industrial equipment that their employer is failing to acknowledge. It could be a case of supporting another employee who is in that situation.

These two amendments seek to limit the definition of industrial action for the purposes of the new part VIIIA. If these changes are not made, employers would have the capacity, and probably the requirement, to avoid their obligations to pay employees for industrial action, such as work to rule arrangements, even though the employees were gainfully, productively and fully employed. The current definition of industrial action applies to a wide range of action. The idea that workers could be not just made but prohibited under the law from receiving payment in circumstances where their action falls short of the withdrawal of labour is fundamentally inequitable and unjust. The bill as currently structured actually prohibits an employer from paying an employee for any period of industrial action, regardless of its nature or effect.

These amendments would not be necessary if the new part VIIIA, which deals with payments in relation to periods of industrial action, was not inserted into the legislation. The government is using a pre-existing broad definition of industrial action, which was inserted to increase the commission's powers to intervene in a wide range of disputes, to pervert the intention of that original use. The concept is perverted in this new part VIIIA by ensuring that workers must be docked pay even when the industrial action being undertaken not only is short of strike action but, in many cases, causes little or no damage to the employer.

I am sure that, now this unintended consequence has been drawn to their attention, the government and the Democrats will support this very sensible redraft of the clause. I looked for the definition, and it is under the existing definition of industrial relations. Before I sit down, I would like to clarify with the parliamentary secretary whether his interpretation of industrial action does include work to rules campaigns.

Senator Campbell —Yes, it does.

Senator MARGETTS —Therefore, industrial action involving dole diaries and situa tions where workers may be asked to do work that is patently impossible or for which they have not been trained, for which the technology is unsuitable or for which there is no getting through to the person who is giving those orders, will mean that employees will have to have their pay docked. This will occur even if what they are being asked to do is stupid and if there has been no other way of getting through to the employer that the employees have been asked to do a dumb thing.

There are many examples where work to rules campaigns or even some other minor industrial action has brought about beneficial changes in the workplace. Perhaps people think that, if they are going to be killed for a sheep, they might as well be killed for a lamb. That means that, instead of taking sensible, low key industrial action, they may well choose to take strike action. That is what it says. You get the same penalty for strike action; you get your pay docked as you would for limited industrial action. It says `must'. It does not say `may'. Perhaps the minister could clarify whether that is not the case.