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Wednesday, 24 October 1984
Page: 2317

Senator HILL(1.37) —The Senate is looking at a package of Bills which, if passed, would: Firstly, repeal sections 45D and 45E of the Trade Practices Act; secondly, provide the Australian Conciliation and Arbitration Commission with certain additional conciliation powers in relation to secondary boycotts; and thirdly, prohibit common law action for an injunction while conciliation was proceeding. Sections 45D and 45E prohibit secondary boycotts and agreements giving effect to secondary boycotts. Secondary boycotts most often consist of picketing, bans and/or other industrial action against a third party which prevent the target delivering his goods to his customers or obtaining goods from his suppliers. It is an application of industrial muscle to be used by unions where industrial action directly against the target by the employees or their union would be ineffective. In other words, it is an action against a third party who is not a party to the dispute, but where in some way action against the third party would cause the party to the dispute to capitulate. Therefore, it is obvious that in many cases the third party is an innocent party and would be incidentally harmed.

The Fraser Government, therefore, chose to prohibit secondary boycotts as an unfair application of industrial muscle. It did so, firstly, because they detrimentally affected innocent parties, as I have indicated and, secondly, because they were not examples of industrial disputation capable of conciliation by the parties, because the parties were not in fact the parties to the industrial dispute. In doing so no doubt the Fraser Government was conscious of the fact that secondary boycotts were often in breach of common law, the so- called industrial torts. However, common law, as we know, has not always offered an effective recourse in this field. We know this because the report of the Swanson Trade Practices Act Review Committee brought it to our attention. So in some ways the Fraser Government was looking to facilitate the operation of common law principles.

Therefore, the Fraser Government moved that this form of industrial conduct should be effectively banned. There can be no real doubt that the injunction procedure that was provided by means of these provisions of the Trade Practices Act has proven most effective. We know that other sanctions have been provided under the legislation, but it is worth noting that the recourse to penalties and to damages has not proven necessary.

The methodology of including such provisions under the Trade Practices Act has always irked the union movement. The rationale of the former Government was that the conduct of unions imposing secondary boycotts was beyond that of industrial relations and beyond that of appropriate industrial relations legislation. It was more akin to an abuse of monopoly power or action that is taken that has an effect of restraint of trade and it was, therefore, more appropriate to be placed under the trade practices legislation. But the real question should not be: What is the appropriate head of power under which these provisions should be situate? Rather it should be that prohibiting secondary boycotts is desirable. The Government is purporting to act pursuant to its obligations under its agreement with the unions, the so-called wages and incomes accord, the deal which it entered into before the last election. That accord provides inter alia:

The Government will encourage the settlement of disputes between employers and unions by conciliation and without recourse to legislative or common law penal sanctions.

It has been understood that the repeal of sections 45D and 45E is part of the Government's obligation under that bargain. I would agree, the Opposition would agree, that the settlement of disputes without recourse to legislative or common law penal sanctions is desirable. It goes to the spirit of the conciliation and arbitration legislation which we have and which we support. But we on this side of the chamber differ with members of the Australian Labor Party in a number of aspects. Firstly, it is implicit in the Government's package that secondary boycotts are a legitimate weapon to be used in industrial disputes. We disagree. We say that we must have a workable system and there must be limits on the action which either party can take. Secondary boycotts go beyond the standard of reasonable industrial behaviour. They go over the line. Secondly, we on this side recognise that some unions simply will not be talked out of engaging in irresponsible activities. That does not mean that all unions are irresponsible. Most of them are, in fact, responsible. But history shows us that there are those which will indulge in secondary boycotts and they tend to be those of the militant and unreasonable variety. One has only to reflect upon the Builders Labourers Federation in the scissor lifts case and the Seamen's Union of Australia in the Utah case. We say that a responsible government must be prepared to provide a system which includes sanctions to ensure that those who only respond to sanctions are forced to behave responsibly.

However, with this Government we see, probably because of its indebtedness to the union movement, an imbalanced attitude towards industrial relations. On the one hand, the Government has looked to increased and more rigorous regulation of business conduct, greater enforcement powers and higher sanctions. Yet on the other hand, if we look at the ALP's industrial relations policy we see the removal of the 'paints and penalties' provision from industrial legislation; the repeal of provisions for penalties upon industrial action; the repeal of all penalties directed at unions and unionists; the exemption of unions from the Trade Practices Act; and limited immunity of unions and unionists from civil liability for damage caused by industrial action. This package is part of the implementation of the Government's policy undertaking. As such it shows an attitude which we on this side of the chamber say is dangerously out of balance. Mr Alan Stockdale, in an Institute of Public Affairs review, said:

The Hawke Government is moving Australia to a pattern of industrial relations in which legal sanctions are imposed on employers but unions are above any legally enforceable restraint.

Already there is a perception that the arbitration system is unbalanced in favour of unions. This has tended to undermine public support for the system. Public confidence in the system is essential. Further removal of restraints on the exercise of union power will result in a further loss of that confidence. Wittingly or unwittingly, the Labor Party could do nothing more effective in ulti- mately destroying the arbitration system in this country than continuing its policy of placing unions beyond the law. Similarly, to provide a system whereby there is not legislative restraint with effective sanctions on irresponsible unions will lead the community at large to regard all unions with hostility. The short-sighted attitude of this Government is threatening the industrial relations system and the public standing of responsible trade unions.

The Government's responsibility in relation to secondary boycotts goes even further. One of the roles of law in a liberal democratic society is to prevent private coercion. The secondary boycott provisions in the Trade Practices Act in this field achieve that goal. But they are not to be replaced by an effective alternative. In fact, as I indicated at the outset of these brief remarks, the amendments would prohibit common law action for an injunction while conciliation was proceeding. That, of course, could be for a very long time. Therefore, because of the Government's package of legislation, not only is the individual losing a statutory protection but also the Government is depriving him of his traditional common law protection. I would have thought that that action should not gain this Government wide applause.

The Government has missed the essential point about sections 45D and 45E which is that the provisions are not designed to resolve the underlying issues which give rise to secondary boycott activity but to limit such activity and to stop innocent parties from becoming entangled in an industrial dispute.

All the evidence therefore suggests that this legislation which is being presented today has little merit. It is an attempt by the Labor Government to meet its commitment to the Australian Council of Trade Unions under the prices and incomes accord, whether or not such action is in the best interests of the community as a whole. The case that the Government has put forward is unconvincing and this legislation should therefore be defeated by the Senate.