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Wednesday, 18 March 1987
Page: 901


Senator ALSTON(4.23) —I rise to speak in this debate as a former member of the Australian Building Construction Employees and Builders Labourers Federation, and as one who did not volunteer for that role but was compelled to be a member in the very way that I would hope we can avoid in the future others being compelled to do. Senator Aulich referred to the departure of Senator Walters from the chamber and I hope that Senator Aulich is not going to do the same thing. He referred to Japan and West Germany as countries in which there is an effective and well organised trade union movement. He did not go on to tell us whether in those countries it is compulsory. The critical point at issue is whether one should have an effective right to opt out-not simply whether the words `compulsory unionism' appear in the Conciliation and Arbitration Act, but what is the case in practice. I start by referring to the remarks of the Prime Minister (Mr Hawke) in an earlier life when he was delivering his civil libertarian views on the subject. In November 1977, as President of the Australian Council of Trade Unions, he said:

We have always been against compulsory unionism. If a person has a philosophical, ideological or religious objection, I think he should be absolutely free not to join.

These are the parameters of this debate. It is a question of liberty and people's civil rights, not a question of whether we seek to diminish the role of trade unions or whether we have a philosophical objection to the way in which they sometimes go about their activities. This is not that sort of discussion. That is the red herring that forms the common thread in the voices we have heard raised against this motion today. I do not think that there is any hidden agenda or conspiracy theory that is credible. Therefore it is irrelevant to talk of this motion as being an attempt to reduce the role of trade unions. We are seeking, firstly, to acknowledge the validity and very real achievements of the trade union movement throughout the century and to say that the best and most effective way of retaining its support in the community, amongst both members and non-members, is to ensure that it performs. By doing that it will retain the respect and, therefore, the membership support of those who belong.

In other forms of activity we find that all the moves are in the direction away from compulsion and regulation. It is fairly clear that following this Government's historic and correct decision to float the currency, the deregulation which has flowed through to many areas of the economy has been very healthy and has demonstrated to us that there is no free ride, that we must survive on our merits and that we want a performance related sector. If that is the case in that area, it is also the case in terms of protection. Tariff barriers are being lowered, but they are still much higher than they ought to be in some areas such as textiles, clothing and footwear and chemicals where we still find effective protection rates of the order of 50 per cent or more. But everyone in the community recognises that real competition involves reducing those barriers. Stock exchanges have been deregulated-not without some concerns on the part of those members of the club who have prospered for so long; nonetheless that is very healthy in terms of increased competition. In the area of the media we find that this Government is proposing to free up the system to the extent that an owner can control 75 per cent of the television viewing audience. Again, one would think that that is healthy. Certain other monopolies in the professions are being broken down. The conveyancing monopoly is gradually sliding away from the lawyers.


Senator Gareth Evans —Not before time.


Senator ALSTON —Quite so. In terms of price competition we find that there are some very real challenges in the market-place. Advertising is gradually being allowed. In all these areas people are being expected to perform and survive on their merits, but when it comes to the way in which trade unions conduct their business it is pretty much a closed shop. There is no sense of wanting to perform and therefore attract people to join and persuade them of the virtues of membership; it is still a determination to have them on board or else. The sort of humiliation that one has to go through to obtain a conscientious objector's certificate is evidence of that. It is of only fairly recent origin in any event, but it is nonetheless a very modest achievement. The Conciliation and Arbitration Act has always allowed the Australian Conciliation and Arbitration Commission to grant preference to members of organisations, but it is only since 1977 that conscientious objector provisions have been extended beyond the area of preference. It is now possible for one to obtain a certificate irrespective of preference. That provision was introduced in only 1956. Conscientious objector arrangements have been in place for about 30 years, but they are still very narrowly based.

It is instructive to look at the report of the Hancock Committee of Review into Australian Industrial Relations Law and Systems to see the attitudes taken by some of the major players. There was certainly no thought on the part of the trade union movement that the whole notion of conscientious objection should be expanded. The Victorian and South Australian governments-both Labor governments, of course-took precisely the opposite view. They sought to narrow the entitlement. The Hancock report states:

The Victorian Government said that certificates should be limited to employees who demonstrate an adherence to a coherent personal philosophy which has the implication of making membership of an employee association inconsistent with that philosophy. The South Australian Government submitted that the basis for granting certificates as conscientious objectors should be limited to religious grounds.

So what did Hancock end up with? He ended up with three recommendations basically seeking to narrow the field even more. The first is that `the Registrar have specific power to revoke a certificate of conscientious objection when he subsequently becomes aware of facts, which, if known to him at the time of considering the application, would have led him to refuse to issue a certificate'. The second is the power for employers to opt out of employer organisations-in other words, to extend the notion of conscientious objection to employer groups. It is not a recognition for an instant of the inherent undesirability of the way in which the current arrangements work. So one is thrown back on examining what has happened in that area.

Over the period 1956 to 1977, 238 applications or renewals were made, and of those some 60 per cent were granted, but there was only an average of 21.6 applications per year. In the five years from 1977 to 1981 the number increased dramatically so that the average has been about 207 applications per year. Of those less than half have been granted. In calendar 1986 there have been 344 applications. That, I would have thought, although they are fairly small numbers in one sense, demonstrates that there is a very much increased desire on the part of individual trade unionists to opt out of the system, to endure the calumny and the embarrassment that would be heaped upon them by their colleagues and nonetheless to assert the rights that they have. Their rights are undoubted. There is no doubt that the Universal Declaration of Human Rights allows one not to join a union. I think there will be a case brought into the international courts on this very matter in the not too distant future. Quite clearly, the Declaration and therefore the International Covenant on Civil and Political Rights, to which we are a signatory, oblige us to give effect to that entitlement. Article 20 of the Universal Declaration of Human Rights states: `No one may be compelled to belong to an organisation'. That means compelled in fact, not simply notionally. In practice people are compelled to belong. That is a vice that has to be acknowledged and about which something ought to be done very smartly. That is why we have moved this motion. We do not accept the amendment of the Australian Democrats. We oppose the provision in relation to the donation because again that is simply a device to raise the ante and make it all that much more difficult to avoid membership and to add to the humiliation.

It is probably worth referring to one of the intellectual luminaries of the Labor organisation, a gentleman by the name of Evans, currently a senator in this place, in a pamphlet called `Conscientious Objection to Union Membership' delivered to the Industrial Relations Society of Victoria in 1979. He was forced to acknowledge that `as a matter of first principle, no one should be forced to join any organisation against his or her will'. He went on to trot out the free rider hypothesis and that is that `in the industrial context additional considerations of fairness come into play'. `Fairness' is his term and it is clearly quite subjective. I suppose being the captive animal that he is of those who dominate the movement in Victoria, he finds it necessary to add those sorts of specious qualifications. I suggest that it is simply a tawdry and narrow definition of self-interest. It demonstrates that those who propose it are not interested in freedom of association but rather in compulsion for their own purposes. Even Senator Gareth Evans, who seems to have been asleep in recent moments, in earlier times was forced to acknowledge the validity of that principle, which indeed the Prime Minister (Mr Hawke) has done.

It then comes down to whether in practice there is that effective compulsion. Let there be no mistake about it: Compulsory unionism is alive and well in this country. It does not extend just to joining trade unions, which many people might have thought it did; it extends to a whole range of entitlements once one is a member of a union. Preference is granted to unionists. The ACTU in its submission to the Hancock inquiry said that preference must be given to unionists when deciding voluntary transfers, choice of dates for recreation and flexi leave, choice of roster changes, access to training facilities and, above all, promotions. So it is quite clear that what is sought there is to very much disadvantage those who have the courage not to belong. Where is the fairness in all that? We are not concerned here to diminish the role of trade unions. It is instructive to note that the very figure that Senator Aulich gave showing that something like 18 per cent of employees in the United States belong to trade unions whereas the level of unionisation in this country has historically been 50 per cent or more, and it is currently around 55 per cent. It is no accident that it is of that order; it is very largely a function of people having no choice but to belong.

Some of the cases that have seen the light of day, such as the Frank Hein case in Victoria some years ago, are classic demonstrations of the extent to which people are sent to Coventry if they have the courage of their convictions and seek to opt out. They are very clear demonstrations of the extent to which the movement will go in punishing those who dare not to belong. It is a function of power and money when one talks about the greed of those who seek to oppose trade unions. That is simply a red herring. I do not stand here seeking to diminish or to downplay the very worthy role that trade unions have played over the years, but it is fair to say that they should continue to have to perform on their merits, and that is simply not what happens at present. Those who have been forced out of places because of adherence to those preference clauses have had that happen to them because the union movement has been prepared to hold the gun at the head of an employer. One can understand why, under that sort of pressure, an employer with obligations to other than that single individual employee will readily capitulate. The consequence of that, I suggest, is a very unhealthy environment and one in which we find that the great bulk of the community believes that there is an excess of trade union power, and therefore a situation of the making of the trade union movement itself. It is in its own power to rectify that.

If one wants to talk in terms of image building I would have thought that the most positive way in which to set about a restoration of that image would be to demonstrate that there can be freedom of association, that there are very real attractions and worthwhile benefits to be derived from membership and therefore to persuade rather than coerce. But unless and until this restrictive requirement is removed we will not be able to say that in every respect this nation is able to uphold the civil and political rights of trade unionists in this country.