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Tuesday, 1 November 1983
Page: 2135


Mr SPENDER(8.45) —I also congratulate the Minister for Employment and Industrial Relations (Mr Willis) for bringing the Public Service and Statutory Authorities Amendment Bill and cognate Bills forward, if only for the reason that it is somewhat novel for this side of the House to see the Government honouring election commitments. That having been said, it is refreshing to see it happen. To that extent I congratulate him, although I would wish it was for a somewhat better cause. In saying that, I do not wish to suggest that there is only one view on industrial matters; nor do I wish to suggest that there is only one view as to the shape of our society; nor do I wish to question the sincerity of those on the other side who express views contrary to those which are put by the Opposition and contrary to those which will be put by me.

What we are seeing here is a major movement of the pendulum in favour of unrestrained misuse of union power. I say that not assuming that unions are necessarily going to misuse power, but assuming, as is the case, that what has happened here is that powers which were vested in the Government are to be taken away from the Government. The major justifications for that statement seem to be two. First, there is some kind of unfair comparison with the private sector, a comparison which is in itself quite invalid because the private sector employees are employed on a quite different basis to public sector employees; and, second, in removing the powers which the Government had under the legislation which is now under challenge we are going to be led to a greater conciliation, a greater consensus and greater equity. One can say only that experience does not suggest that that will be the case, that experience does not suggest that the absence of sanctions brings sweetness and light and that experience does not suggest that those with power in unions as in other areas of the community necessarily exercise their powers with restraint, sense or concern for those who may be affected by them.

Turning to the particulars of the three Bills, the first I wish to refer to is the Public Service and Statutory Authorities Amendment Bill. This Bill proposes to withdraw from the Public Service Act the power to stand down workers or to declare workers are not to be paid a salary where they refuse or fail to comply with a direction given to them. This applies to the Public Service Act and to six major Commonwealth statutory corporations. I remind the House that the provision which is to be repealed is in these terms:

Where an officer or employee refuses or fails to comply with a direction given by a person having authority to give the direction, being a direction with respect to work that he is performing or is to perform, the Board may declare that the officer or employee is not to be paid salary.

That is to be found in section 32A (1) of the Public Service Act. Mr Deputy Speaker, the normal implications of a contract of employment are these: The employee must actually perform the duties asked of him to be entitled to his wage so long as those duties are within the scope of his contract of employment and are lawful. Is it not perfectly fair that one should do the work for which one is to be paid? Is it not perfectly fair that if one fails or refuses to do that work, having been directed by a person in authority to do the work, one should not be paid?

Are we really so far down the road to the land of Alice in Wonderland that we as a nation support the proposition that if one does not do work, refuses to do work, or fails to do work, one is to be paid? Would any member of this House suggest that if he said that he would not do his work as a member of parliament for a stipulated period he should be paid? I find the proposition quite incomprehensible. It has only to be stated to be rejected. Yet we are told-in fact it is proposed-that that power is to be excised from the Act. An attempt was made by the Minister in his second reading speech on the Public Service and Statutory Authorities Amendment Bill to justify what was proposed by reference to the private sector. The Minister said:

It is therefore clear that in the private sector, the ability of employers to apply the no work as directed no pay principle is constrained by the terms of applicable awards.

A number of things can be said about that statement. In the first place, it sometimes is constrained; it sometimes is not constrained. In the second place, frequently there may be no applicable awards. In the third place, the conditions of employment and the conditions relating to termination of employment in the private sector are quite different from those applying in the public sector. To draw a comparison with private sector is both irrelevant and misleading.

In exercising powers under the present provisions-I speak of the provisions that are in the Act-it is perfectly plain that the person exercising the powers must act in good faith. A pre-condition for the exercise of the power is that the condition must exist-that is that an employee has refused or failed to comply with a lawful direction to do some work which is within the scope of his employment, not work which is beyond the scope of his employment. What remedies are proposed? We are told by the Minister in the second reading speech on the Commonwealth Employee (Redeployment and Retirement) Amendment Bill that he proposes:

. . . to indicate to the ACTU and public sector unions, that this action is being taken by the Government in the interests of developing more harmonious relations in the Commonwealth employment sector. Consequently the Government would expect Commonwealth employees and their unions to reciprocate by seeking to resolve their claims or grievances through the established machinery, including access to the arbitral authorities.

What sanctions are there if that course is not followed? What sanctions are there if the unions decline to co-operate? What incentives are there to co- operate if a union believes that it has industrial muscle which it can exercise for the benefit of its members? Does not one come back to the principal question and is it not this: Why should anyone be paid if he refuses or fails to do the work for which he is paid? It is an Alice in Wonderland situation if that is the kind of society that this Government envisages.

Is it any wonder that our international reputation as employees, as workers, and our international reputation in the field of industrial relations are so poor? Perhaps it is worse than is justified. But when these kinds of measures are proposed without anything save fond hope that what is proposed in substitution will work, and when we have strikes around the country at different times, not simply in the public sector but elsewhere, and when those overseas judge us as a nation-they do not segment us-is it any wonder that we are judged as we are judged?

What evidence of abuse is there of the provisions which are complained of? The Prime Minister (Mr Hawke), when he was Opposition spokesman for industrial relations, spoke upon the introduction of the amendments which are now to be excised and, if I recall correctly, he created a fantasy of possibilities for the misuse of these provisions. Where is the evidence of that? What is said about that in the Minister's second reading speech? Nothing at all. What mention is made in the Minister's second reading speech of the public interest, of the interest of the average Australian, of the men and women who may be affected by unjustified action or of the cost to the taxpayer of paying people for doing work when they are not doing the work? What is said of that? Nothing. The public interest counts for nothing. It is simply an agreement between the Government and the unions.

I turn to the Commonwealth Employees (Employment Provisions) Repeal Bill. It is proposed to repeal the Commonwealth Employees (Employment Provisions) Act 1977. May I remind the House of the purposes of that Act as stated by the then Minister for Industrial Relations in his speech to the House on 18 August 1977. He stated:

The purpose of the Bill I am introducing to the House today is to enable Commonwealth Government employing authorities, in the public interest to suspend from duty, or in appropriate circumstances dismiss, government employees who take industrial action which disrupts the provisions of services to the Australian community; and stand down, without pay, government employees who cannot be usefully employed as a result of industrial action taken by fellow government employees or by workers in private industry, or who are engaged on functions the performance of which is seriously disrupted. The feature that distinguishes government employees is their responsibility for providing the wide range of services essential to the well-being of a modern day community.

That is the distinguishing feature. The Minister further said:

If government employees do not fulfil, or are not able to because of the actions of others to fulfil, these responsibilities the effect reaches into the very fabric of our society.

Is that not certainly the case? Does anybody deny that? Is it not profoundly a matter of the public interest that government departments, and their employees, serve the public? That is, after all, the sole justification for the existence of government departments. That is the sole justification for the employment of staff by those departments just as it is the sole justification for the existence of this House. What dreadful evidence do we have of misuse of these powers? Obviously powers under the existing legislation should be resorted to only in compelling circumstances, but must governments always seek to move to one side their industrial relations responsibilities? Is it not the case that governments sometimes must act decisively and without delay-and without the delay which is entailed by recourse to arbitral tribunals? If governments act harshly, unfairly and for groundless reasons, will they not be judged by the electorate, and is that not the sanction? But no, those provisions are also to go. I should have thought that the provisions which are presently in the Act and the reasons for them are eminently justifiable, but they are to go. We are to be launched, as it were, into the arms of the Australian Conciliation and Arbitration Commission and associated tribunals.

Again, in this Bill, the Government places considerable reliance on powers which it is said are not available to employers in the private sector. Once again we have a justification which is as irrelevant as it is misleading. Employees in the private sector would, in circumstances where, for example, no work was available to them, one might think, very quickly be stood down. Is that not a very invalid comparison therefore for the Government to have made here? Lastly, I should like to go to the Commonwealth Employees (Redeployment and Retirement) Bill. The Minister in his second reading speech on this Bill, said:

The . . . Act provides a framework for the redemployment and retirement of Commonwealth employees on the grounds of excess numbers, physical or mental incapacity, inefficiency or loss of essential qualifications.

What is so wrong with that? Would honourable members not think those were eminently sound reasons for the redeployment or retirement of Commonwealth employees? Honourable members should remember that, when that Act was introduced , the then Minister said:

It is essential in relation to matters as fundamental as the efficient and economical use of staff in the Public Service that the Parliament should lay down and be seen to lay down the rules and regulations appertaining thereto, and not some other body.

Is that not fundamentally correct? Must we always push on to the shoulders of some other authority decisions in this very hard field of industrial relations? Are we not elected to take responsibility? Honourable members should remember that it is not a case of our lacking constitutional power when we deal with our own employers.

I should like the House to recall the reasons why the Conciliation and Arbitration Act is cast in the terms in which it is. It is because there is an absence of Commonwealth powers to deal, for the most part, directly in industrial disputes. But the Commonwealth does not lack that power when dealing with its own employees. Here we have the power and we have the fundamental responsibility of deciding what should be the shape of our Public Service, how it should be structured, how it should be run, what we expect of public servants , how they should perform and how they should be measured by us. Are we to pass this down the line to some other body for the simple reason that we have done it in the past and for the simple reason that we lack the power in other areas when we do not lack the power here? We should accept the responsibility and be judged on how we exercise our responsibilities.

As I said at the outset these three Bills will have a significant impact on the boundaries of the powers between unions and the Government and between unions and the employers. This is a movement which greatly increases the powers of those unions, which may be exercised to the public disregard and which may be exercised without any control over those powers. This Government must answer for these measures if they are in fact put into effect.