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Friday, 20 February 1987
Page: 481


Mr WILLIS (Minister for Employment and Industrial Relations)(3.27) —As usual, the Deputy Leader of the Opposition (Mr N.A. Brown) has massively distorted the facts in presenting his case. Of course, we have come to expect that to be standard presentation from him. I am interested to see that he has now latched on to the concept of the trilogy and wishes to have his own trilogy in respect of industrial relations. Of course, he misrepresents all three aspects of his supposed trilogy. Let me briefly refer to that.

Firstly, he talked about Mudginberri as the first leg of his trilogy. He said that that decision showed that employees had a right to determine their wages and conditions. The importance of Mudginberri was that that was the first case under the Trade Practices Act that went through to penalties being imposed and damages being applied. In fact, the ability of the employer and the employees at Mudginberri to reach agreement on their conditions of employment stemmed from a decision of the Australian Conciliation and Arbitration Commission in setting an award which had that provision in it. It came to be in the award because the Commission put it in the award when that area of employment came under Federal jurisdiction. That is what Mudginberri was about. The ability for there to be some bargaining about wages and conditions between employees and the employer stemmed from a clause in the award put in by the Arbitration Commission.

All this nonsense that we hear time and time again about the supposed importance of Mudginberri in letting a thousand flowers bloom is just absolutely ridiculous because it totally distorts what was the reality of that situation. The Commission simply did what it had done in many cases; when it sets a first award, unless there is some very good reason not to, it puts into the award the conditions that previously applied. Therefore, there is no reason to regard this as being something absolutely spectacular. The spectacular nature of Mudginberri was the use of the Trade Practices Act through to the point, for the first time, of the imposition of penalties and damages.


Mr N.A. Brown —It was the first, was it?


Mr WILLIS —But not in the way that the honourable member said at all. Secondly, the Dollar Sweets dispute was again supposed to be a landmark case because the common law was used. Common law has been used in industrial relations, admittedly on a fairly rare basis-two or three cases a year-for most of the time that we have had industrial law in this country. It is not the first time that common law has been used in industrial relations. There have been many previous occasions on which that has been used. So this supposed landmark decision is only one of many decisions in which the common law has been involved in industrial relations.

In respect of the third leg of the trilogy, the Equal Opportunity Board case, the Deputy Leader of the Opposition, as is his wont, tried to beat this up into some massively important decision. It is an interesting decision; I concede that, but it does not have the kind of landmark importance that he attributed to it. He is not alone in this. There has been some Press beat-up as well. Rather than being a landmark decision, we should see this, firstly, as a decision by a majority of two members to one. Secondly, this decision may be subject to appeal; so we are not sure what will come out of it. The important thing to note is that, although it is true, as the Deputy Leader of the Opposition mentioned, that the Board found that it was a condition of Mr Hein retaining his employment that he be a member of the union, it also found-the Deputy Leader of the Opposition somehow forgot to mention this point-that it could find no agreement or arrangement between the employer and the union that that should be the case.


Mr Cadman —You are living in fairyland.


Mr Carlton —Surprise, surprise!


Mr WILLIS —But that was the decision. The employer argued in the case that there was such an agreement or arrangement, but the Board said that it could find no evidence that that agreement or arrangement existed. Therefore, it was a condition that was being imposed by the employer. It was not a condition which would have been exempt from the operation of the Act if it had been the subject of agreement or arrangement for industrial relations purposes. Therefore, the employer was found to be guilty and damages were given to Mr Hein. To extract from that decision the kind of landmark importance that the Deputy Leader of the Opposition tried to give it is an absolute absurdity, because if it had been the subject of agreement between the union and the employer, the employer would have been exempt and there would have been no penalty. That is the situation. I would have thought that the Deputy Leader of the Opposition, a lawyer, would have latched on to that point. If he did, he forgot to mention it in the course of the debate. To ascribe to this case some landmark importance is absurd.

The reality is that, firstly, it is not the Government's policy to have compulsory unionism. It is quite clear that the Australian Labor Party policy is that we support preference but not compulsory unionism. Secondly, it is quite clear that under the Conciliation and Arbitration Act the Australian Conciliation and Arbitration Commission has no power to award or endorse compulsory unionism. The Commission is bound only to provide for preference. In doing so, it has to acknowledge the rights of individuals, and properly so, not to be a member of a union if that individual has a conscientious objection. That conscientious objection provision is not dormant; it is in the Act and it is utilised every year by people who do not wish to be members of a union. Those people who make use of that provision in a preference situation have all the rights as though they were members of a union. It is a nonsense to say that there is some compulsion to be a member or that the law provides some compulsion on people to be members of a union. That is not the case at all and the Deputy Leader of the Opposition should be fully aware of that.

The Deputy Leader of the Opposition has continually made statements which assert that such a situation exists. In a Press statement issued yesterday he said:

The Government would do well to heed the equal opportunity employment decision, given its support for the abhorrent practice of compulsory unionism and union preference clauses in Federal awards.

There are union preference provisions in Federal awards but there are no compulsory unionism provisions. Of course, there are closed shops in various places of employment around the country. Some closed shops are in places which one might find somewhat unusual. They apply for various reasons. Of course, they usually apply because it suits the union and the employer to have such a situation.

Discussion interrupted.