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Tuesday, 30 May 1972
Page: 2257


The CHAIRMAN (Senator Prowse - Is it the will of the Committee that proposed sections 18 to 31 be taken together and proposed sections 32 to 35 be taken together? There being no objection, that course will be followed.

Proposed new sections 18 to 31.


Senator BISHOP - May I commence my comments in respect of these proposed sections by stating that I and other members of the Australian Labor Party consider these to be the vital sections of the Act. Consequently, there will be some debate in relation to them. Clause 13 provides the basic structure for the new restrictions which it is proposed to place on the Conciliation and Arbitration Act. It separates the functions of conciliation and arbitration, and the new structure will consist of so-called new task forces which will mean that there will be fewer flexible attitudes and fewer conciliation processes than in the existing Act. This legislation turns the clock back. It stops a trend, commenced some years ago, of mutual recognition of the failure of king hit sanctions. The words task force' as used by the Minister are not inappropriate because the new task force panels will operate under more circumscribed conditions to separate the functions of conciliation and arbitration; to provide a more restrictive procedure in relation to operations and inquiries and the extension of matters to be determined by the Full Bench. They will provide a tight control over agreements and awards, remove from an area of argument wages policies and institute a system by which wages can be frozen.

Proposed section 20, which relates to a disputes procedure designed to regulate relationships, becomes a device by which to apply penalties. At first glance one would say that the disputes procedure provision - something which the union movement discussed with the employers and with the Government over many years - would be a good thing. These discussions did take place. In 1969 and 1970 the trade unions, through the National Labour Advisory Council, discussed this matter with the Government and with the employers, and a procedure was developed from these discussions. The Government is putting this new procedure into the legislation, and a breach of the procedure becomes a matter for the application of section 119 of the Act. In a moment I shall read the procedure that was proposed in the first instance. I personally am aware of voluntary agreements having been made by employers with employees and the unions in relation to disputes procedure. These procedures now appear in many agreements and there are no penalties or sanctions involved in them. At the conclusion of a meeting of the National Labour Advisory Council held on 21st April 1971, the Minister for Labour and National Service (Mr Lynch) issued this statement:

The employer and ACTU members of NLAC agreed: l.That representative tripartite discussion concerning the operation of the Commonwealth Conciliation and Arbitration Act should begin as soon as possible and should embrace the question of sanctions, including the ACTU suggestion of the desirability of investigating the adoption of a system of voluntary agreements to regulate the relations between employers and unions outside the legislation, including, if desired by the parties, provisions for their enforcement.

That is the critical part of the Minister's statement. These procedures were designed first of all as arrangements fully entered into between the employers and the unions. A great number of these arrangements are now incorporated in agreements which have been certified by the Commission. Many other arrangements have been entered into outside the Commission. They were entered into voluntarily. The provisions being sought to be put into the Act will mean that these arrangements can be enforced in the event that they are breached. To talk about improving the conciliation processes of the Act by inserting these procedures in this way is, I suggest, quite wrong.

I turn now to the provision which relates to the new task force panels. The new panels in fact will mean the implementation of a very rigid system of arbitration. It will not be as flexible as it is under the present legislation. For example, proposed section 23 (3.) reads: lt is the duty of the Presidential Member who is a member of a panel under this section to organise and allocate the work of the members of the panel in respect of the industry or industries allocated to the panel, and the other members of the panel shall comply with directions given by, the Presidential Member in the performance of that duty.

So instead of providing for a more effective system of arbitration, the panel provision splits the activities of the Commission into 2 rigid sections of arbitration and con.ciliaton, but the proposed new section provides for this tight control where the ordinary member shall comply with the instructions of the presidential member in relation to proposed section 25. Proposed section 25 reads: (1.) As soon as an organisation or an employer becomes aware of the existence of an industrial dispute affecting the organisation or its members or affecting the employer, as the case may bc, the organisation or employer shall forthwith notify the relevant Presidential Member, or the Registrar, accordingly.

The legislation has been redrafted and it seems to me to be more restrictive. Proposed section 28 (2.), which relates to the obligations of the Conciliation Commissioner, reads:

A Conciliation Commissioner shall refuse to certify a memorandum or make an award or order in accordance with this section if he is of the.opinion that -

(a)   the terms are not in settlement of an industrial dispute;

(b)   any of the terms is a term that the Commission does not have power to include in an award; or

(c)   it is not in the public interest that he should certify the memorandum or make the award or order.

The terminology of paragraph (b) has been changed. In addition it will be seen that the Commission is now bound to take note of the public interest. Reference to this matter occurs in a later part of the Bill and more will be said about it. Proposed section 30, which provides for reference of disputes to arbitration, states that the conciliation commissioner shall report to the relevant presidential member as to the dispute and the unsettled matters. Here we become involved in a legal situation. It is said that there shall not be disclosed anything said or done in the conciliation process concerning matters in dispute which have remained unsettled. There we see the framework being established bit by bit on purely legal lines. The proposed section restricts whatever ability a commissioner has to settle a dispute by conciliation. It establishes a restrictive channel. It is bad and is a backward step. It is directly the reverse of what has been the custom and the trend over many years and should not be passed.

The extension of matters which have to go before a full bench of the Commission is also of great concern to the Opposition and to the trade unions. Proposed section 31 reads as follows: (1.) The power of the Commission to make an award, or to certify, under section twenty-eight of this Act, an agreement -

(a)   making provision for, or altering, the standard hours of work in an industry;

(b)   making provision for, or altering, rates of wages, or the manner in which rates of wages are to be ascertained, on grounds predominantly related to the national economy and without examination of any circumstance pertaining to the work upon which, or the industry in which, persons are employed;

(c)   making provision for, or altering, a minimum wage that is to be payable to adult males without regard to the work performed or to the industry in which they are employed;

(d)   altering rates of wages for females on grounds pertaining to the relationship between rates of wages for females and rates of wages for males, except where the alteration is in accordance with principles determined by a Full Bench; or

(e)   making provision for or in relation to, or altering a provision for or in relation to, annual leave with pay or long service leave with pay, is exercisable by a Pull Bench . . .

This is the proposed section which imposes on the Conciliation and Arbitration Commission, as it will be constituted, the obligation to consider 'grounds predominantly related to the national economy and without examination of any circumstance pertaining to the work upon which, or the industry in which, persons are employed'. It becomes an extra responsibility placed on the Commission to deal with a question for which, in the main, it is not fitted. After all, it is the Commission's responsibility at the present time to be acquainted with the Government's views. The Government is the specialist. It sets the tone and the terms of the economy. It decides whether there is to be inflation or no inflation, unemployment or full employment. Obviously, the Government ought to have the responsibility of appearing before the Commission and putting its view in regard to any effect a decision might have on the national economy and negating whatever the unions or the employers may say in respect of this. Of course, the aim of this proposed section is to bind and hogtie the Commission to strict criteria, which the union movement will have to face, in order to make sure that the Government's policies on wages are kept intact. It is a backward step. The alteration of these matters and the extension of matters that go before a full bench are backward steps.


The CHAIRMAN - Order! The honourable senator's time has expired.







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