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Monday, 4 May 1987
Page: 2226


Senator HAINES (Leader of the Australian Democrats)(3.42) —The urgency motion that we are debating today was put down by the eminently reasonable Senator Chaney. That is the way he has been described in his approach to industrial relations matters by all sections of the media and some sections of politics. The motion states:

The need to maintain the effectiveness of the secondary boycott provisions of the Trade Practices Act as a readily available remedy for abuses of trade union power.

Certainly, as I have said, Senator Chaney is an eminently reasonable man and there is no doubt in most people's minds that the industrial relations policy of the Liberal Party of Australia will appear considerably less strident and more reasonable with Senator Chaney selling it. But, as we all know, there is an old quotation which says: `Speak softly and carry a big stick'. I wonder whether that is likely to be the net result of Senator Chaney's being put in charge of the Liberal Party's industrial relations policy.

It is important to remember that there is some division within supporters of the Liberal Party as to how its industrial relations policy should be framed and sold. For example, it is important to remember that in right wing employer groups and organisations such as the H. R. Nicholls Society we find some people who have in the past formulated the Liberal Party's industrial relations policy and who have a very simple minded view of industrial relations. Their belief is that you use the courts at every opportunity to break the power of the trade unions.

Recently I received a copy of the Business Review Weekly. One of a series of cover stories on the right wing push to crack union power contained the following statement:

The Society-

that is, the H. R. Nicholls Society-

is committed to pushing industrial battles into the law courts, deregulating the labour market and thwarting the Hawke Government's proposed changes, following the report of the Hancock Committee, which would further entrench the existing industrial relations structure and deliver more power to the arbitration system.

Nothing less than the overthrow of the entire system of industrial relations and the abolition of the Arbitration Commission will suit some union busters.

That is a quote, not from some socialist rag, but from the widely respected Business Review Weekly. Gerard Henderson, ex-adviser to John Howard, a member of the H. R. Nicholls Society and pet ideologue of the right wing push, demonstrated the level of respect that the people whom Senator Chaney must inevitably consult have for the Australian Conciliation and Arbitration Commission when he described the proposed new labour court as `nothing more than the old Conciliation and Arbitration Commission dressed up in legal drag'. From my memory of most lawyers, they get up in drag wherever they are, but that is what he said. He considers it of very little importance. Let us contrast that approach with the approach of Charles Copeman in the Robe River dispute, an approach that was quite contrary to the more responsible approach of organisations such as the Business Council of Australia, which sent me-and I presume other senators-its draft industrial relations statement headed `Towards an Enterprise Based Industrial Relations System' of 24 March 1987. In the covering letter to me the Council stated:

As indicated in the documents, we believe the directions we wish to follow are in the interests of all Australians in terms of both long term living standards and personal satisfaction of individuals at the work-place. Principally we are hoping to achieve a totally different attitudinal approach to human relations in business organisations.

I certainly hope that the eminently reasonable Senator Chaney pays attention to what the Business Council of Australia has to say in this regard. Points 2.4, 2.5 and 2.6 of this background paper are worth mentioning in some detail. Under the heading `Employer attitudes' is the statement:

The Council believes that negative and exploitative attitudes to employees by all levels of management in the past have frequently reinforced `them and us' assumptions. These, in turn, have been reinforced repeatedly by destructive attitudes and actions on the part of unions.

In the point headed `Work Practices' the Business Council states:

The beliefs and practices which dominate the present industrial relations system have allowed many inefficient and unproductive work practices and attitudes to develop and persist.

This has diminished the capacity of individuals to contribute constructively and to derive satisfaction from their work.

Under point 2.6 headed `Political Conflict and Industrial Relations' the BCA states:

The polarisation encouraged by historical attitudes and practices has seen conflict in enterprise relationships intrude into the broader political arena. In turn, this has reinforced the problems at the enterprise level.

The result has been a pre-occupation with politics and power, rather than productive achievement, mutual support and understanding in relationships at work.

I commend those comments to anybody who wishes to see industrial harmony operate in Australia.


Senator Chaney —What do you do about a Norm Gallagher?


Senator HAINES —I suppose that what one does about a Norm Gallagher fits in with what one does about a Charles Copeman. At both ends of the political and industrial spectrum we have renegades for whom disruptive action is the norm, if honourable senators will pardon the unintended pun in that case.

I commend too the approach made by the Metal Trades Industry Association-again, an eminently reasonable and responsible employer group-which is responding in a positive way to the industrial relations challenges facing Australia. It has produced in its `Compact' a document which similarly identifies the need to develop a co-operative framework for unions and employers to resolve wage, work practice, productivity and technology matters. It is important that the eminently reasonable Senator Chaney and the new `go it alone' Liberal Party machine work out to which of the tunes I have mentioned today they are marching-the even, measured approach of organisations such as the Business Council of Australia and the Metal Trades Industry Association or the goose-step of the H. R. Nicholls Society.


Senator Chaney —But they support this motion.


Senator HAINES —So do we, Senator; there is no problem with supporting the motion. If the Government calls it to a division, Senator Chaney will find us bringing up his numbers sufficiently for the motion be passed-that is, with a minor amendment that we would like to insert. As I said, not only we but also the BCA do not believe that it is only trade unions that cause the problem; sometimes, it is hardline employers. If honourable senators are prepared to accept that, the motion before the Senate today will be eminently reasonable.

If the Liberal Party does believe in a consensus-based industrial relations system, I would not have thought that there would be too much trouble with some of the recommendations of the Hancock Committee of Review into Australian Industrial Relations Law and Systems. For instance, they emphasise the importance of solving disputes at the enterprise level and the importance of the public interest being given a prominent role in resolving industrial disputes. In the past, we have fought hard against the repeal of sections 45d and 45e of the Trade Practices Act, and have defeated attempts by the Government to remove them. We did so because we believed that innocent third parties should not be victimised or harmed by a dispute between other parties. We have believed that small businesses, in particular, should not have their operations affected by the irresponsible actions of either a union or another company behaving provocatively, leading to a confrontation with the two parties locked in dispute. That is our primary concern about sections 45d and 45e and it is the primary value of section 45d.

That is not to say that we believe that each and every dispute between a company and a union is due to irresponsible behaviour by a union; far from it. Our concern here is not to apportion blame for the primary dispute, but to argue that it is inappropriate for one or more innocent third parties to be damaged by a secondary boycott undertaken by a union to pressure another company to give in to its demands, whether or not those demands are justified.

There is no doubt that we support the essential principle of the Opposition motion, which is that there is a need to maintain the effectiveness of the secondary boycott provisions of the Trade Practices Act as a readily available remedy for abuses of trade union power-with, as I have said, the additional proviso about recalcitrant employers. The motion that we are considering places the entire blame for this sort of behaviour on recalcitrant unions. Therefore, the issue is whether the effectiveness of the provisions relies on their being in the Trade Practices Act, and it is from that that some of the concern about the Government's proposal stems.

The provision requiring that all avenues of arbitration and conciliation have to be exhausted before there can be resort to be courts relates primarily to common law action. When I was contacted by a number of representatives of employers' groups, I was a little puzzled about the way in which they used the term `common law action'. Frequently, they were referring to sections 45d and 45e of the Trade Practices Act, which do not involve common law action. When, on one occasion, I mentioned that to a journalist, he said: `Oh well, to all intents and purposes sections 45d and 45e of the Trade Practices Act are statutory law'. I said that I thought it went a little further than `all intents and purposes'. There appears to be some confusion in the minds and hearts of those who are concerned about the Government proposals about the difference between common law actions and actions under sections 45d and e. Common law action covers, for instance, such matters as conspiracy to cause damage.

I imagine that some employers will not be particularly happy with the Government's proposals, but it is difficult to talk about them in any intelligent manner as we have not yet seen them. The Hancock Committee said about sections 45d and 45e that it could reach no recommendation on whether they should remain or be repealed. We do not want the effectiveness of those sections removed. My understanding-which, like Senator Chaney's, is based on rumour and media reports-is that the Government intends that the substance of sections 45d and 45e be retained, that the new labour court be made responsible for the enforcement of these provisions and that recourse to sections 45d and 45e or their new equivalents will have to await a certificate by the new Commission confirming that all avenues of conciliation and arbitration have been exhausted.

I suspect that what is actually exercising the minds of some individuals is not the change of jurisdiction but the change of personnel. From my conversations with some individuals, there appears to be a concern not so much about who has jurisdiction but about the people who are currently likely to be given the new jurisdiction. That is a separate matter and should be more openly discussed. I do not know whether that matter has been raised with Senator Chaney--


Senator Chaney —It is the maintenance of a true court that is not tied up with other processes.


Senator HAINES —All that I can say is that some comment has been made to me by some employer representatives that it is the individuals rather than the jurisdiction that is the problem. We have no inherent problem in giving the labour court jurisdiction in this matter, but I stress that no decision has been made and we shall not make any decision or reach any judgment on the method by which the new sections 45d and 45e can be invoked until we have seen the precise legislation. If the recourse to those sections is so delayed that the essential value of gaining an injunction under them is frustrated, quite simply we will not be able to support the new legislation. I want to make that point quite clear now. However, that is a matter on which we cannot decide until we have seen the legislation. The Mudginberri dispute, in which section 45d was invoked to break a long term picket, was an example of that provision being used after a dispute had been running for quite some considerable time--


The ACTING DEPUTY PRESIDENT (Senator Morris) —Order! The honourable senator's time has expired.