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Thursday, 25 October 1956


Mr HAROLD HOLT (HIGGINS, VICTORIA) - I thank the House, and I trust that this arrangement will meet the convenience of honorable members. Let me start by referring to the Conciliation and Arbitration Bill. Much of the content of this bill can be dealt with quite quickly, for there is nothing contentious about most of it. Clauses 7 to 13 simply make the intentions of the legislation passed last session more abundantly clear. They put beyond all doubt that the Presi dent of the Conciliation and Aribitration Commission can, by one instrument, assign to individual presidential members, the general responsibility for dealing with industrial disputes in the Maritime, Snowy Mountains and Stevedoring industries. Clauses 17 to 21 are designed to clear up a few drafting points revealed when the act passed last session was finally printed. There is nothing of any substance here, and I do not think that the House would wish to be wearied with a detailed recital of the reasons for each individual clause. Clauses 23 and 24 are designed to fill a few deficiencies in the transitional provisions of last session's legislation. The drafting of transitional provisions always presents difficulties and, in the case of the conciliation and arbitration legislation, the difficulties were extremely complex.

Clauses 15 and 16 of the bill deal with the right of audience before the new Commonwealth Industrial Court and the old Conciliation and Arbitration Court which has been retained in existence for certain purposes. This matter of audience before these courts has already been raised in this House. Honorable members will recall the instance which brought it to our attention at the first sitting, or one of the early sittings, of the newly constituted Commonwealth Industrial Court. Section 63 of the present Conciliation and Arbitration Act makes provision for audience in proceedings before the Arbitration Commission. It allows, for example, officials to appear for their organizations. No special provision, however, is made in relation to proceedings before the new Industrial Court. Section 46 of the 1947 act contained provisions relating to proceedings before the old Arbitration Court, not dissimilar from those appearing in the present section 63. Section 46, however, was expressed not to apply to judicial proceedings and consequently, strictly speaking, the provisions of the Judiciary Act applied so as to limit representation to properly qualified barristers or solicitors. Nevertheless, even in relation to some judicial proceedings the Arbitration Court appears to have followed the practice of allowing officials to represent their organizations.

The Government has considered what special provision should be made in respect of proceedings before the Industrial Court, and has come to the conclusion that the arrangements to operate in future should, generally speaking, conform with the practice of the past. Accordingly, except in relation to proceedings which, put broadly, involve questions of law or involve offences against the act, clause 16 of the bill enables parties to elect whether to appear personally, to be represented by lawyers, or to be represented by officials. The bill also provides that even in respect of proceedings which involve questions of law, except appeals from other courts to the Industrial Court, the parties may, if they wish and the court grants leave, be represented by officials. The Government regards this as a practical way of approaching this problem.. The solution is, as I have said, by and large to apply the practice of the past. Clause 15 of the bill applies the rule I have stated to analagous proceedings before the old Arbitration Court.

A second matter of substance is dealt with in clause 14. In recent years, the Commonwealth or its instrumentalities have undertaken a number of major projects. The Snowy Mountains scheme, Woomera, Maralinga, St. Mary's and the Menai reactor come quickly to mind. The Opposition, when in government, recognized the desirability of Commonwealth tribunals dealing with such projects. For example, it conferred jurisdiction on the Commonwealth tribunal in relation to the Snowy Mountains scheme. The Government believes that the principle underlying that decision is sound. There is no reason for thinking the Commonwealth will not in future years undertake other great national projects, and the Government considers that it is entirely right and proper that the industrial conditions governing them should be determined by the federal tribunals and not by the tribunals of each individual State. The Conciliation and Arbitration Commission is the appropriate tribunal to develop codes of conditions applicable to large-scale construction jobs undertaken by the Commonwealth Government and its instrumentalities wherever they may be located. What clause 14 does is to empower the Conciliation and Arbitration Commission to deal with industrial disputes or industrial matters affecting such projects as are declared by the Minister to be Commonwealth projects. The commission will have jurisdiction whether the work is actually undertaken by the Commonwealth or one of its instrumentalities or by contractors or sub-contractors for or on behalf of the Commonwealth or its instrumentality, and irrespective of whether the project is located in one State or spreads across a border.

By and large, the industrial problems that will arise in the case of major Commonwealth projects will concern conditions of employment on the site, but it may be desirable in some cases that the power of the commission should extend to people who are working in connexion with the project and not necessarily on the site.

The Parliament may not have unlimited power to confer jurisdiction on the Conciliation and Arbitration Commission in respect of all persons who may be connected with a Commonwealth project. For example, persons driving trucks moving earth to or from the site of the project would appear to be within this power. At the other extreme, people working in a factory supplying equipment for the project may not be. In any case, it might be quite undesirable that they should be so regarded. Therefore, power is given to the Minister in the proposed new section 88B (4) to define who are to be regarded as working in connexion with a Commonwealth project, and it will be in relation to such persons that the commission will have jurisdiction.

It may even be that there will be some persons working on the site of a project in respect of whom it would be undesirable that the commission should have jurisdiction under this new proposed division. Such persons may be Commonwealth public servants directing operations who are covered by the Public Service Arbitrator's decisions or decisions of the Public Service Board. Yet other persons may be officers or employees of a State Public Service or State instrumentality. To meet this situation, provision is made in the proposed section 88B (3) to permit the Minister to exclude from the jurisdiction of the commission in respect of a Commonwealth project such persons as he designates. Industrial matters affecting any such project will be dealt with by the commission in the normal way, that is to say, by commissioners assigned by the President for the purpose. Other provisions of the present act will enable the President himself to deal with, or to assign a presidential member to deal with, a particular industrial dispute affecting a project.

I now turn to clauses 4 and 5 of the Conciliation and Arbitration Bill, and I should like at the same time to deal with clauses 4, 5, 7, 9 and 11 of the Public Service Arbitration Bill. The need for these provisions really stems from a recent decision of the Public Service Arbitrator, who found deficiencies in amendments to the Public Service Arbitration Act passed in 1955. That decision also led to an examination of the basis upon which the old Arbitration Court and the conciliation commissioners have over many years been making awards in respect of Crown employees, for example, in Canberra and the Northern Territory.

The problems thrown up are complicated but, at the risk of over simplification, I will try to explain them briefly. I think it is fair to say that the clauses in the two bills I am now dealing with introduce no new principle or concept. In the past, the industrial problems of Crown employees under the Commonwealth and its instrumentalities have been dealt with by both the Public Service Arbitrator and the old Arbitration Court and the conciliation commissioners. The reasons are no doubt explained by history. Originally, public servants had no access to the Arbitration Court. Only those Crown employees who were engaged in an industry had this right. Of course, in the early days of federation, there were few such people. In 1911, however, all Crown employees, including normal public servants, were given access to the court. In 1920, a separate Public Service Arbitrator was established. The idea was apparently that the Arbitrator exclusively would deal with claims by organizations which were confined to Crown employees. Provision to that effect was made by section 11 of the 1920 act.

Some Crown employees, however, and they have grown in numbers over the years, belong to organizations whose membership is not limited to Crown employees. Some of these organizations continued to go to the Arbitration Court and later to conciliation commissioners. Others have gone to the Arbitrator. This division of responsibility led to all sorts of problems, principally in respect of what I might call Commonwealth industrial-type employees. For example, there was a tendency for organizations to go to the Arbitrator or to the court or commissioners, depending on their assessment of their chances of getting most - natural enough perhaps. Different conditions governing the same type of employees awarded by the Arbitrator or the court or commissioners led to dissatisfaction. Those concerned with the functioning of the Arbitration Act and the Arbitrator have commented adversely on the position. The High Council of the Public Service organizations has also been dissatisfied with the position. So have the Public Service Board and the departments.

How to go about dealing with these problems has received much attention over the years. For example, an interdepartmental committee was set up by the late Mr. Chifley, when he was Prime Minister in 1949, to examine the question. The amendments made in 1952 dealing with appeals and references to the court alleviated some of the problems. In 1955, the Parliament went further. It then empowered the Public Service Arbitrator to refrain from dealing with a claim in certain circumstances. Put broadly, he was enabled so to refrain where he thought it was more appropriate that the claim should be dealt with by another tribunal. This provision, like those contained in the present bills, was really directed to claims in relation to industrial-type employees of the Commonwealth, engaged on work comparable with that performed in outside industry.

It was with this provision that the Arbitrator found difficulty. He found himself unable to refrain from dealing with one claim on the ground that it would be more appropriate for the Arbitration Commission to deal with it. First, because section 11 of the Public Service Arbitration Act, as it now stands, prevented the claimant organization taking its claim to the commission; and, second, because in his view the commission was not empowered to do what the Arbitrator was permitted to do, namely, make an award inconsistent with a law of the Commonwealth affecting the wages and conditions of the employees concerned. The fact is that the old Arbitration Court and the conciliation commissioners in .the past seem to have been doing just this; whether with or without authority is beside the point, for the bills now before the House make the position clear.

So much for the background. What the bills do is -

(a)   to restate the circumstances originally set out in the 1955 amending Public Service Arbitration Act, under which the Arbitrator may refrain from dealing with a claim on the grounds that it could be better dealt with in some other way;

(b)   to allow the Arbitrator to consent to a claim being dealt with by the Arbitration Commission where he believes it is one which he should refrain from dealing with;

(c)   to allow an organization comprised only of Crown employees to take a claim to the commission where the Arbitrator refrains from dealing with it or consents to its going to the commission; and

(d)   to permit the commission, when dealing with matters affecting Crown employees, to make an award though it may be inconsistent with a law of the Commonwealth affecting the wages and conditions of the employees concerned.

Now I just want to deal briefly with this last point. Ever since provision was made for arbitral tribunals to deal with Crown employees - the Arbitration Court from 1911 to 1920 and the Arbitrator since - the legislation has provided that an award or determination may be made inconsistent witha law of the Commonwealth relating to salaries, wages, rates of pay, or terms and conditions of service or employment, but that any such award or determination may be disallowed by the Parliament. The reason is clear. Employment under the Crown is usually governed by statute. Thus the Public Service Act deals with the great run of public servants and ancillary employees; and statutes providing for the creation of statutory authorities deal with the conditions of employment of their employees. Sometimes these statutes lay down in detail many of the conditions of employment, for example, as to appointments, promotions, discipline, and matters of that character. Sometimes the authority is given power to determine conditions of employment generally or subject to specific legislative provision. Therefore, unless power were given to the Arbitrator to make a determination inconsistent with a law of the

Commonwealth, his function would be very limited. By the same token, however, since a power to make an inconsistent determination virtually gives power to override an act of the parliament, it is necessary that the Parliament should have the right to disallow such a determination.

When public servants were first admitted to the arbitration tribunals, public service employment was almost all, if not entirely, governed by the Public Service Act. As time has gone on, legislation applicable to all Crown employees has been passed. The Superannuation Act, the Commonwealth Employees' Compensation Act and the Commonwealth Employees' Furlough Act are instances. These acts govern the terms and conditions of employment of Crown employees generally, but as the Public Service Arbitration Act now stands the Public Service Arbitrator could make a determination inconsistent with them. It would appear to be entirely at odds with principle to permit the Arbitrator to override an act of general application and to rest on the Parliament's power to disallow a determination that did infringe such an act. Inevitably, disallowance proceedings lend themselves to political disputation. Similarly, it would seem entirely at odds with principle to permit the Arbitrator to make an award at variance with, for example, the promotions appeals and disciplinary provisions of the Public Service Act and other acts constituting services for statutory authorities. Fortunately, the Arbitrator has recognized this. Although it may well be that the Arbitrator, working in a background of public service tradition, would in future continue to follow this course, it is considered that the matter should not be left to chance. There is, however, a stronger reason; for now we need to put in the Conciliation and Arbitration Act the same provisions about awards inconsistent with laws of the Commonwealth as are in the Public Service Arbitration Act. Therefore, we have provided, in both the Conciliation and Arbitration Bill and the Public Service Arbitration Bill that determinations or awards which are inconsistent with the acts 1 have named shall not be made. We have also made provision enabling the prescription of other acts or of the provisions of other acts in respect of which inconsistent determinations or awards may not be made. At the same time, we are carrying into the

Conciliation and Arbitration Act the provisions for disallowance that have always applied under the Public Service Arbitration Act.

The remaining clauses of the Public Service Arbitration Bill require no particular explanation. Clauses 3 and 6 cover mere matters of drafting change. Clause 8 removes a doubt that previously existed as to the time at which the Arbitrator should send a determination to the Prime Minister and theAttorney-General. Clause 10 cures a technical defect which had not previously been noticed. Clause 12 fills a deficiency in the transitional provisions of the legislation enacted during the last sessional period.

I now turn to the Australian National Airlines Bill 1956 and the Aluminium Industry Bill 1956. The only purpose of these bills is to exclude the activities of the Australian National Airlines Commission and the Australian Aluminium Production Commission from the jurisdiction of the Public Service Arbitrator.In view of what I have already said, the particular reasons for these bills need little additional explanation. The exclusion of particular classes of Crown employees from the jurisdiction of the Public Service Arbitrator is not novel. Labour, when in government, excluded employees of the Snowy Mountains Authority. Trans-Australia Airlines is engaged in a highly competitive industry. The Government believes that Trans-Australia Airlines should, so far as its industrial conditions are concerned, be dealt with by the same tribunal as deals with its competitors, that is. the Commonwealth Conciliation and Arbitration Commission. Both the Public Service Arbitrator and the former Commonwealth Court of Conciliation and Arbitration have commented on the problems thrown up when two tribunals deal with employees in the highly competitive airlines industry. So, as with the Australian Coastal Shipping Commission Act passed during the last sessional period of this Parliament, we propose that TransAustralia Airlines industrial matters should come under the jurisdiction of the Conciliation and Arbitration Commission.

The Australian Aluminium Production Commission is in much the same position. It isengaged in a normal industrial undertaking run on purely commercial lines. It is entirely right and proper that the Conciliation and Arbitration Commission, which deals extensively with those in commercial and manufacturing activities, should deal with the industrial problems of thecommission. The amendments to the Conciliation and Arbitration Bill, which I have already described, will, of course, enable the Conciliation and Arbitration Commission to deal with industrial problems of both the airlines commission and the aluminium commission.

I commend the bills to the House.

Debate (on motion by Dr.Evatt) adjourned.







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