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Tuesday, 8 May 1973
Page: 1814


Mr VINER (Stirling) - It is a pity to hear the honourable member for Burke (Mr Keith Johnson) speak as he did trying to interpret a section of the Act when obviously he is unable to do so.


Mr Ian Robinson (COWPER, NEW SOUTH WALES) - He does not understand it


Mr VINER - He does not understand it at all. When the sub-section to which he referred speaks of the Governor-General designating a person in a particular capacity, what the Governor-General is saying is that Mr X will be a conciliation commissioner and Mr Y will be an arbitration commissioner.


Mr Keith Johnson (BURKE, VICTORIA) - Or vice versa.


Mr VINER - Or vice versa. What does it matter? The point is that the GovernorGeneral appoints him in a certain capacity. Pursuant to the provisions of the Act, once he is designated in that capacity, he fulfils the function which the office carries with it. The clear intention of the Minister for Labour (Mr Clyde Cameron) is that rather than the Governor-General designate a person as a conciliation commissioner or as an arbitration commissioner, those functions will be merged and the one person can fulfil the 2 functions. As my colleague the honourable member for Moreton (Mr Killen) has amply demonstrated, the Minister has not shown any reason whatsoever for changing the provisions that were introduced in 1972 aimed at separating the functions of conciliation from those of arbitration. In his second reading speech he says this:

Grave problems have arisen in the operation of these provisions.


Mr Killen - What are they?


Mr VINER - Precisely. As the honourable member for Moreton says, what are these grave problems? It is very easy to make an assertion, as the Minister has done, but it is very much harder to justify the assertion made, more particularly when there is no attempt whatsoever to justify that assertion. The Minister goes on to say:

The best talent for the one function or the other has not always been wearing the right hat.

If Bill Smith has not worn the right hat, does that give any reason why he should wear 2 hats? If he is incapable of wearing one, how is he shown to be capable of wearing two? The proper solution to the problem with which the Minister has been confronted is to make sure that he wears the right hat, not to make him carry the additional burden of 2 steel helmets. So the point is that nowhere has the Minister demonstrated the need to change what was introduced in 1972. One might well, and justifiably, understand that, given a reasonable time, a person in a particular capacity fulfilling special functions will develop the skills appropriate to that function. No man is so perfect that he can always place all people in the right categories. Some of us at least are prepared to acknowledge that we might be skilful at one thing but that we are hopeless at another. So it is in arbitration, as in any walk of life. Certain persons will be skilled in certain areas.

The intention of the amendments which were introduced in 1972 by the then Government was to provide that a person should try to develop special skills in the area of conciliation or in the area of arbitration. 1 would suggest that it is obvious that if a person has sat as a conciliator asking both parties in a spirit of frankness and goodwill to lay their cards on the table with the object of settling in a fair and frank manner a dispute that has arisen, both parties or at least one of them could well hold the belief that the person who has sat as conciliator in an attempt to negotiate a settlement might well have built up prejudices or, if not prejudices, at least attitudes which, if he sat as an arbitrator, would prevent a spirit of fairness prevailing in the arbitration. That is not suggesting that a man who is thrust into this position deliberately takes one side or another. The 1972 proposals, which were accepted by this Parliament, are aimed at separating the functions of conciliation from the functions of arbitration. It is not a unique proposition that was put into operation at that time. It is something that is well founded in good sense and sound judgment. Unless both parties agree to a person who has sat as chairman in conciliation, that person should not sit in arbitration upon the dispute. I know from my own experience in Western Australia, looking at the industrial legislation of that State, that that principle has been accepted for many years and has been acted upon by both parties.

So what the Opposition objects to is that without any justification at all, without showing what the problems are that have arisen and without demonstrating how the one man can fairly wear 2 hats the Minister is seeking to overturn an existing situation and compel the one man to be both conciliator and arbitrator. The Minister goes on to say in his second reading speech:

Parlies have sometimes expressed a preference for arbitration to be carried out by the person who attempted to conciliate the differences between the parties.

The Minister says that parties have sometimes expressed this preference, but I ask him how many times. He had not told the Parliament how many times. What is the proportion of the number of cases when the parties have wanted the same man to conciliate and arbitrate to the number of cases when other parties have wanted a different man to arbitrate? What an argument the Minister then uses. He says:

The work load between commissioners has varied substantially.

That is not a matter of policy; that is a matter of mere administration, and it is up to the Commonwealth Conciliation and Arbitration Commission to administer the Act in an appropriate way so as to put the work load fairly upon all persons working within it. Then he goes on to say:

There has been an increase in internal paper work.

Since when has the weight of paper determined the policies of government and the principles upon which our arbitration system operates? Since when has mere weight of paper justified a change of the kind that the Minister proposes? The simple answer is to cut out the paper work and let the commissioners, both conciliation and arbitration, get down to business. If they are allowed to get down to business, no doubt what was written into the Act in 1972 can operate in the effective and proper way in which it was intended.







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