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Wednesday, 24 October 1984
Page: 2361


Senator BUTTON (Minister for Industry and Commerce)(8.04) —I would have been quite happy for Senator Walters to continue for a few minutes. In fact, I made that offer but she was not disposed to accept it. The first matter of substance I want to deal with is the suggestion which has come into this debate that this legislation arises from the prices and incomes accord in some peculiar way, it being seen as some kind of spooky document out of which all sorts of things flow. I want to make it quite clear that this is Government legislation. It was unanimously approved of by the Government and it is not a question of the Government not having firm intentions about this legislation, as has been suggested by some speakers, including Senator Jack Evans, the Australian Democrat from Western Australia. I remind the Senate that those of us who were in opposition in the years of the Fraser Government have adopted a consistent position on this legislation. We opposed the inclusion of sections 45D and 45E in the legislation when they were introduced by the Fraser Government. We had subsequent debates about them here. We said they would not work and that they were in the wrong place; the trade practices legislation was not an appropriate vehicle for dealing with matters related to industrial disputes, a point which was made by Senator Harradine in the course of his remarks earlier this evening. I make it quite clear from the beginning that there has been a consistent position by the Government in relation to this legislation. Certainly it is correct to say, as some speakers have said, that the trade unions support the legislation now before the Parliament. The have done so for a long time. This Government and the members of it who formerly were in opposition have done the same thing.

I address my attention to the suggestion that there are no valid reasons for this proposed legislation, in particular in the area of restrictions on common law. As I said, the Government believes that these matters-we have said this consistently-should be dealt with by the Australian Conciliation and Arbitration Commission in the first instance, where dispute settling machinery is provided.


Senator Watson —A toothless tiger. It has been hopeless since 1969.


Senator BUTTON —I do not know what Senator Watson is talking about. I assume he is saying that the Arbitration Commission has been hopeless since 1969.


Senator Watson —The conciliation and arbitration provisions are absolutely hopeless and you know it.


Senator BUTTON —As I said in the course of debate the other day, the criterion which those in the Opposition always adopt in considering these issues is whether they work in terms of the levels of industrial disputation. Whatever Senator Watson's view is, since this Government came to power the methods of consultation which it has brought into the Australian political and social scene for the first time have worked much better than anything the Opposition ever provided. We say that the dispute settling machinery is provided there.

I just make the point that I made in a debate in this place a long time ago: The Trade Practices Commission, when considering section 45D complaints relating to union activities and industrial issues, because of the unnatural sea into which it was swimming in terms of the settlement of disputes procedures, has developed a procedure whereby it consults regularly with the Australian Council of Trade Unions and the Confederation of Australian Industry before proceeding with matters. The Trade Practices Commission also consulted on an informal basis with the Conciliation and Arbitration Commission in the early days of this legislation for the same sorts of reasons.

In connection with the question of common law rights, I just want to make it clear that the Government is not removing common law rights of employers, as has been suggested. What is proposed in the legislation is a simple restriction on obtaining injunctions at common law whilst matters are before the Conciliation and Arbitration Commission in its dispute settling role. The Commission has to deal with all aspects of a boycott dispute expeditiously and commence to deal with it within 48 hours of notification. That would be the effect of the legislation if the amendments were carried. That restriction will apply only while the Commission is confident of promptly ending the boycott or settling underlying disputes. The Government's view is that the immediate intervention of legal processes into dispute settling processes tends to disrupt the capacity for settlement procedures.


Senator Walters —Why do you not read the survey?


Senator BUTTON —I was not going to devote much time to the survey because Senator Walters's explanation of it was sufficient to damn it for all time, but I shall do so later if it is regarded as important. The point is that if formal legal processes are intruded into the settlement of disputes right at the beginning, it leaves limited capacity for the settlement procedures to go forward. I have been told that in 38 out of 64 cases where relevant information is available in relation to cases under the existing provisions, periods of two weeks and more have occurred between the imposition of the boycott and the application for an injunction.

Much has been made in the debate of the fact that no provision for arbitration is included in the proposed legislation. That suggestion is based on the view that the basic reason for the emphasis on arbitration is the belief that arbitration produces result in imposing sanctions and bind parties to agreements . Arbitration does not necessarily result in sanctions but voluntary arbitration will be available. Where the boycott is ancillary to an industrial dispute, arbitration will be available in respect of the underlying issues. If the boycott is the result of a political or ideological claim of the type referred to in this debate, arbitration would be of no practical value. If the boycott is not strictly industrial but has some other relationship with employment-not such a close nexus as straight up and down employment-related issues-constitutional problems are likely to arise in defining the range of legitimate exceptions or exemptions.

In respect of the common law sanction which I addressed a minute or two ago, I make the point that there is a very grave risk of inconsistency between tribunals in the way in which they deal with these matters. If the common law right is preserved and used in the way in which Opposition senators apparently wants it to be used, there will be different results in different places in dealing with industrial disputes of one kind or another.


Senator Watson —How many times has the Government used it? How many damages have been given? The record speaks for itself.


Senator BUTTON —Senator Watson is confusing two issues. I am speaking of common law remedies, and damages have been awarded in such instances. That has not happened in proceedings under sections 45D and 45E. I concede that. I am not talking about that. I hope that I shall be allowed to get on with my remarks without any further interjections. I was addressing the common law issue.

I shall now touch on the survey conducted by the Confederation of Australian Industry. That survey is not very satisfactory in certain respects. One cannot rely on it as establishing a basis for a conclusive argument against the legislation before the Parliament. The survey was based on a questionnaire distributed amongst employers who have used section 45D and whose assessment of its effectiveness was sought. The departmental studies on this matter relied for the most part on facts on the public record, particularly those of the Federal Court of Australia and the Commission in respect of transcripts and decisions.


Senator Walters —They don't deal with the unions.


Senator BUTTON —I am trying, Senator Walters, to address the relative credibility of two surveys. Senator Walters's comments about the Department of Employment and Industrial Relations in the course of this debate are totally irresponsible and, in terms of their objectivity, should not be made by any honourable senator. The Department of Employment and Industrial Relations has a long and fine record. Those sorts of remarks should not be made about departments which have served all governments to the best of their ability. I do not say they always served well, because sometimes they have had impossible tasks.

I am just making the point that the departmental view is different from a view which might be used as a basis of some conclusions-very dubious ones-in relation to the CAI survey. The CAI survey dealt with only 25 cases in all and has provided information in respect of only 20 since the beginning of 1983. One of the 20 cases relied on in this survey took place in 1982. One of the employers for which answers to questions are given in the survey did not reply at all-that company is in liquidation-and the CAI provided some of the information itself. I do not say that that information was necessarily inaccurate or was provided in any sense in bad faith, but the questionnaire is open to some criticisms on that basis. It is a very small sample of information on which to draw conclusions in favour of retaining the existing legislation and rejecting the legislation before the Senate.

If this amending legislation is passed the employer will not be left without remedies in respect of the sort of situations with which the 45D and 45E provisions of the Trade Practices Act have been concerned. As I said before, there is no evidence that sanctions solve disputes. This question has been the subject of debate in the Senate over may years. Senator Watson is now gesticulating madly at me, which is a sign of aberrant behaviour at the best of times, I would have thought. The fact of the matter is that sanctions have always been the subject of debate in terms of one view of industrial relations as against another. The Government's view has been for a long time-as I said, long before we came into government-that the sort of remedies which rely on sanctions have not served this country well. They have not served it well in terms of the test which Liberal-National Party spokesmen would apply. Have they worked in terms of industrial disputation levels in this country? The answer is unequivocally no.

I just make the point that all common law remedies, including injunctions and damages, will be available. State legislation dealing with marketing or industry regulation will continue to apply. Most of the small businesses about which we have heard from Senator Jack Evans and others, subject to State legislation as they are, will not be covered by the current provisions of the amending legislation. All other provisions of the Trade Practices Act about which comment has been made in the course of the debate will continue to apply.

I reiterate that the Government's view has consistently been that the place for the settlement of industrial disputes is that provided by the Constitution which has a wealth of legislation and experience, namely, the Conciliation and Arbitration Commission. The place for dealing with industrial disputes is not in the hands of the Trade Practices Commission. We have said that on numerous occasions and we will say it again in the course of dealing with this legislation. I dealt earlier with the two main criticisms which have been advanced by Opposition senators in the course of the debate. The first is that somehow there is some agreement with the trade union movement. That is not so. It is a matter which was in the Labor platform well before we came to government . It has been a consistent position.


Senator Watson —There is no agreement. What about the BLF?


Senator BUTTON —I suppose the honourable senator wants legislation to deal with militant unions and not the others. No doubt the honourable senator and Senator Walters between them will decide which ones ought to be dealt with in this way. That is the only option the honourable senator has. I would not think that too many of the unions on the list that Senator Walters read out would fall into the militant basket, as the honourable senator calls it. But the fact of the matter is that the honourable senator wants it all ways. He wants suitable remedies, as he sees them, to deal with militant unions but not with others. Of course, the honourable senator is coming in here and beating the drum about militant unions in the hope of gaining some sort of perceived advantage from that process.


Senator Maguire —There is not much equity.


Senator BUTTON —That is not going to work very effectively. There is not much equity, as Senator Maguire interjects, in that sort of process. The other leg of the argument which has been advanced by Opposition senators is that section 45D and section 45E are effective and the Government proposals would leave employers defenceless against secondary boycotts. I just repeat that that is not the view of the Government. I concede that the thing which has prevailed in the context of sections 45D and 45E is not the sanction but the conciliation process which has been engendered. That is the thing which has worked. Opposition senators come in here and claim that sections 45D and 45E have worked. I remind Senator Watson that they have worked not because of sanctions but because of the conciliation mechanisms which have applied in the context of dealing with disputes.

I just make the point that the legislation is specifically framed to take account of persons affected by a secondary boycott resorting to common law if the Commission is unable to end a boycott or settle a boycott dispute. This is not the case in relation to a normal industrial dispute within the Commission's jurisdiction. So this legislation caters for a situation different from the sort of situation which exists within the normal conciliation and arbitration jurisdiction.

I think the debate on this legislation has been welcome in some ways. I have begun to see the virtues of imposing a guillotine on debate because I must say that the speeches which have been made have been very concise and to the point. It has been a very refreshing debate to listen to. Senator Durack set a fine example by going to the gravamen of what he intended to say in a very short space of time, which is something he and I do not always do here. The contributions to the debate which have been very serious, short, sharp and concise reflect, I think, a fundamental difference of attitude to the way in which industrial relations in this country should be handled. I do not think there is any point in honourable senators getting up here and reading out catalogues of the damned and unwashed-as honourable senators opposite would see it-engaging in demonology of one kind or another about particular bad or militant unions as Senator Walters and, presumably, Senator Watson want to do. I do not think those things are really to the point when one is considering legislation which must apply with equity across the whole industrial relations scene.

I said that some speakers had made concise contributions. Senator Harradine, of course, made the most sensible one of all because he agrees basically with the Government's position. He put his case very well and very concisely in the 10 minutes that were available to him. One leaves things where they belong and does not intrude into areas of constitutional power and of experience, and so on, which have developed well over the years and served this country well. The only thing about which I strongly disagree with Senator Harradine is his pronouncement that the founding fathers were very wise men. I would like to qualify that to some extent. I do not think we should let him get away with that into the wilds of Tasmania as an unchallenged proposition. This is an important piece of legislation. The Government is concerned about it and we are anxious that it proceed. I commend the second readings of these Bills to the Senate.

Question put:

That the Bills be now read a second time.