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Wednesday, 31 October 1956

Mr SNEDDEN (Bruce) .- This bill deals, as do the three associated bills, principally with four matters. It deals, first, with the representation of parties before the Commonwealth Industrial Court; it deals with Commonwealth projects; it deals with the problem of Commonwealth employees who are competing with employees in other industries; and it deals with the Public Service Arbitration Act. I propose to consider the bill under those four headings.

With regard to the representation of parties, the Minister has stated, in his second-reading speech, that, in fact, all the legislation does is to maintain the old position. There is an attempt to divest the court and the arbitration process of legalism. The bill enables non-qualified persons to appear before the court in quasi-judicial proceedings. In debates on this matter during these sittings, and in the last sessional period, the Minister has maintained a constant position. During the last sessional period, the Minister said -

There is more probability of conciliation in this kind of atmosphere than in the more formal atmosphere produced when counsel are in attendance. There will, of course, be no limitation on the appearance of counsel before the Industrial Court. (n his second-reading speech on this bill the Minister said -

The Government has considered what special provision should be made in respect of proceedings before the Industrial Court, and has come to The conclusion that the arrangements to operate in future should, generally speaking, conform with the practice of the past.

On this point, and only on this point, I diverge from the Government. I believe that it should not provide an opportunity for on-qualified persons to appear before a body that is essentially and indisputably a court. It is improper that non-qualified persons should be enabled to come before that court and argue matters of law, interpretation or the effect of legal decisions. I know that it has been suggested that there are many people in the trade union world who are fully capable of coming before that court and arguing these points, but, with great respect to the honorable member for Bendigo (Mr. Clarey), I propose to cite him as an illustration of the reasons why nonqualified persons should not appear before the Commonwealth Industrial Court to argue matters of law. The honorable member for Bendigo delivered in this chamber last night a speech which, I am afraid, departed very greatly from truth.

Mr Daly - What a scandalous statement!

Mr SNEDDEN - I do not make it for the purpose of attempting to create scandal; 1 make it only because it is necessary to point out to honorable members how greatly the honorable member for Bendigo erred. In dealing with this bill, the honorable member said that the Minister had assured us that its provisions are purely machinery provisions. Then he said he wanted more detail in regard to clause 6, which provides for the repeal of section 54.

He then said that the proposed amendment seems to go beyond the adjustment of a mere technicality. I took the opportunity of referring to the records in order to ascertain how section 54 came to be inserted in the legislation. This section of the act, which is proposed to be repealed by clause 6 of the bill, reads in part -

The Commission shall not include in an award a provision requiring a person claiming the benefit of an award to notify his employer that he is a member of an organization bound by the award.

That provision was introduced on the motion of a private member, Mr. McNeill, who was then the honorable member for Wannon. I propose to read to the House a short paragraph from the report in " Hansard " of the honorable member's speech, in which he moved, in committee, that this provision be inserted in the legislation. The honorable member said, on 9th July, 1930 -

I should like to move an amendment to provide that the court shall not include in any award a provision requiring a person who claims the benefit of the award to notify his employer that he is a member of the organization which obtained it from the court. When Chief Judge Dethridge made his award in relation to the pastoral industry in 1927 he inserted a provision that station employees should notify their employers that they were members of the organization covered by the award. Such a provision is unjust, and many men employed on stations find it embarrassing to have to notify their employers of their membership of such organizations. In some cases these men have been engaged at lower rates than those prescribed in the new award, and they are put in a very awkward position through having to notify their employers that they are members of the organization which has obtained the award, and therefore entitled to increased wages.

That provision was inserted in 1930, in a period of turmoil, a period of depression, a period when the development of organized trade unions was in its infancy as compared with their highly organized state to-day. It was a time when the relationships between employers and employees were vastly different from what they are to-day, and the circumstances that led to the insertion of this provision were simply these: At that time, when a vast number of people were seeking a limited number of jobs, if an employer asked a proposed employee whether he was a member of a union and received a reply in the affirmative, the employer might look elsewhere for someone to fill the job, knowing that he could then pay lower wages than he would be required to pay to a member of a union covered by an award.

Section 54 was designed to avoid that. It was made an offence for an employer to ask a proposed employee whether he was a member of the appropriate union, and everybody seeking a job was placed on an equal footing.

But conditions have changed vastly since then. An employer is still precluded from asking a proposed employee whether he is a member of a certain union, and if the employer engages the man, he does not know whether the man is covered by a federal award or by a State award. If the employer complies with the terms of the appropriate State award, he may find that he has contravened a federal award, by which the employee is covered. So the employer is in the unenviable position that if he does not comply with the terms of the award covering an employee he commits an offence, yet he is precluded from asking the employee whether he is a member of a certain union. Clause 6 proposes the repeal of section 54 of the principal act - rightly so. Those are the facts.

The honorable member for Bendigo has objected strenuously to the proposal that the Conciliation and Arbitration Commission shall be entrusted with the duty to determine disputes which may not be interstate disputes. The Minister will be able to declare a project to be a Commonwealth project, and such a declaration will give authority to the Conciliation and Arbitration Commission to determine industrial disputes arising in that project. The honorable member for Bendigo has advanced a rather tenuous argument. He has said that the Conciliation and Arbitration Commission is geared specifically for the resolution of interstate disputes and that it is not trained to deal with disputes that are confined to one State. It is extraordinary that such an argument should be advanced by the honorable member for Bendigo, who has many years of experience of these matters.

There is no generic difference between a dispute of an interstate character and a dispute of an intra-state character. The honorable member's allegation that the Conciliation and Arbitration Commission is inexperienced in intra-state disputes is quite wrong, because the commission, in its earlier form of the Commonwealth Arbitration Court, was responsible for dealing with disputes arising in territories of the Common wealth. I had always believed it to be the policy of the Labour party that the power of Commonwealth arbitration tribunals should be extended to cover all disputes, and 1 am completely at a loss to explain why the honorable member for Bendigo should argue against that principle now.

The honorable member has suggested that this is a dreadful conspiracy to depress the wages and conditions of the workers That is a most extraordinary suggestion He has said that, as a result of these measures, the commission will be able to deal with matters which now are dealt with by the Public Service Arbitrator. He has said that that is bad and that it is a part of a conspiracy to depress wages. 1 remind the House that during the last sessional period the honorable member foi Bendigo, in debate here, agreed that the Commonwealth Arbitration Court - the earlier form of the Conciliation and Arbitration Commission - was a worth-while body. Are we to believe the honorable member for Bendigo now when he says that the character of the Conciliation and Arbitration Commission will change overnight, and that it will no longer apply to the resolution of disputes the principles which it and its predecessor, the Commonwealth Arbitration Court, have always applied? Surely the honorable member for Bendigo is only pretending that he believes that that will happen.

He has said also that the workers will be forced into a jurisdiction which they do not want and, once again, he has detected a conspiracy of some kind. The workers will not be forced into a jurisdiction which they do not want. These bills are designed to avoid the extraordinary situation that two men, working side by side on the same job, are covered by different awards, specifying different terms and conditions ot employment. It is proposed that all people working on vital national projects with which the Commonwealth is concerned shall be covered by one set of awards. It is not the intention to eliminate the authority of the Public Service Arbitrator. The bills are designed to bring rationalization oi industrial awards to projects to which the Commonwealth commits itself.

Mr DALY (GRAYNDLER, NEW SOUTH WALES) - The honorable member i> right off the beam.

Mr SNEDDEN - I am not off the beam. I am certain that the honorable member for Grayndler (Mr. Daly) has been so busy writing letters that he has not read the bills. 1 bet that he does not know even how many bills are under discussion. In fact, there are four. If the honorable member wants to know the titles of those four bills, I am sure that the honorable member for Melbourne Ports (Mr. Crean), when he rises to his feet, will read them, as a special gesture to him.

My objection to the opening up of the Commonwealth Industrial Court to nonprofessional advocates is reinforced by the fact that the honorable member for Bendigo, who is probably the most eminent of the trade union advocates, has misunderstood the real intention of the legislation. The purpose of the legislation is to provide an opportunity for all persons working on Commonwealth projects to receive the same wages and to enjoy the same conditions of employment. I did not expect that the members of the Labour party would oppose that objective. I thought that they would applaud it warmly, and I was surprised when they did not do so.

There is a great difference between Federal and State awards. There is a great difference between the number of people covered by State awards and the number covered by federal awards. The legislation is designed to bring some uniformity of industrial awards to large projects such as the St. Mary's ammunition filling factory and the Maralinga establishment. As the Minister said in his secondreading speech, there is no indication that projects of that kind will cease in the near future, or that the number of Commonwealth projects will be kept to a minimum. The desirability of one arbitration authority for Commonwealth projects cannot be denied. The legislation will give the Minister power to declare that any major project is a Commonwealth project. If he does so. the Conciliation and Arbitration Commission will have power to unify wages and other conditions of employment in that project. In a project on a single site, it is obvious that everybody working on the site would be covered by determinations of the commission, but in many instances there would be people coming to and going from the site and people employed in contractors' /ards or factories, manufacturing various important items for the project. The Minister will be given a discretion to declare such fringe activities, as they may be described, as a part of the project. This is a very sound and reasonable proposition. I am certain that the present Minister for Labour and National Service will not abuse it, and that no. future Minister would abuse it. I am equally certain that no Minister could abuse it.

The honorable member for. Bendigo suggested, last evening, that this measure could be used to depress wages and working conditions. I am certain that the Commonwealth Conciliation and Arbitration Commission will not, overnight, reverse the historical attitude and criteria that have been adopted in this matter and become party to a conspiracy to reduce wages.

Mr Clarey - Does the honorable member appreciate that the Public Service has one standard in regard to annual leave and the Commonwealth Conciliation and Arbitration Commission has another?

Mr SNEDDEN - I do. I think thai, because of the very obvious differences, the honorable member ought to agree that the adoption of the criteria of a single authority would be a tremendous improvement. 1 is impossible to deny that. I suggest to him that, inherent in his remarks last evening was confused thinking about the difference between Federal and State awards and about the current emphasis that is being placed on the cost of living and its relationship to automatic quarterly adjustments of the basic wage. For example, the honorable member illustrated his argument by reference to builders' labourers in Victoria. He said that, until recently, they had received automatic quarterly adjustments of wages in accordance with the movement of the cost of living.

Mr Clarey - That is true. Until recently they did, but they will receive those adjustments no longer.

Mr SNEDDEN - The fact that the honorable member placed so much importance on this analogy indicates to me, quite definitely, that his mind was confused about the cost of living controversy and the object of this bill, which is to concentrate under a single authority jurisdiction over all the workers employed on a Commonwealth project.

There is another aspect of this bill which relates to Commonwealth employees who are engaged in activities controlled by the Commonwealth, but are not specifically Commonwealth public servants in the normal sense of the term; for instance, certain people working for the Department of Works or, more importantly, for instrumentalities such as Trans-Australia Airlines and the Australian National Airlines Commission. These people are engaged in a competitive field. It does not seem reasonable for Commonwealth employees to be subject to one industrial tribunal and for the employees of private competitors to be subject to another. This leaves open the possibility of a very serious divergence in awards and determinations. Either the Commonwealth instrumentalities or the private undertakingscould be placed in a competitively advantageous position as a result.

Under legislation enacted during the last sessional period the Commonwealth Public Service Arbitrator was given discretion to decline to hear a matter if he considered it should more properly be determined by the Commonwealth Conciliation and Arbitration Commission. It was also provided that an applicant organization could apply to the Arbitrator to have a matter referred to the commission. The honorable member for Bendigo last evening referred specifically to the Foremen's Association. My own information, which I believe is correct, is that this was the very organization that highlighted the weaknesses that this bill is designed to remove. The association is composed principally of employees of Trans-Australia Airlines. It approached Mr. Galvin, the Public Service Arbitrator, with a request that a matter be referred to the Conciliation and Arbitration Commission. Mr. Galvin agreed that it would be preferable for the matter to be heard by the commission, and it appeared that he would refer it. but he declined to do so. His first reason for declining to refer the matter was that he doubted the authority of the commission to hear it because the membership of the Foremen's Association consisted entirely of Commonwealth employees. His second reason was that he doubted the commission's power, upon hearing the matter, to override a law of the Commonwealth in making an award, and he was no doubt correct.

The Arbitrator certainly .had the power to override a Commonwealth law, but he considered at the time - I contend quite rightly - that the commission did not have power to do so. This bill is designed to cure the two defects that were discerned by Mr. Galvin. Therefore I regard it as a very sound measure. Until now the Arbitrator has been the only authority with discretionary power to override a Commonwealth law. Of course, there was provision to ensure that he would not do so recklessly. For example, he was required to make :i report to the Attorney-General. Since any Commonwealth law he proposed to override had the legislative authority of the Parliament, the Parliament itself at all times retained the right to override it. But the Commonwealth Public Service Arbitrator, an authority which has existed since 1920. has had a history and tradition of the application of Commonwealth Public Service rules and customs of employment. Therefore it was unlikely that the Arbitrator would run riot and completely cut across the traditions and historically established customs of the Public Service. However, another body which has not the benefit of that history and those traditions is being clothed with similar power, and apparently ir becomes necessary in the Government's view to place three very important restrictions on the power to override a law of the Commonwealth, namely, with respect to the Commonwealth Employees' Compensation Act 1930-1954, the Commonwealth Employees' Furlough Act 1943-1953, and the Superannuation Act 1922-1956. J think these restrictions are most desirable, because, as the Minister pointed out in his second-reading speech, if it were left to the Parliament to reject a determination or part of a determination made by the Arbitrator under those acts, a matter could enter into the field of political disputation. This would not be desirable. It is far better to specify the fields in which the Arbitrator cannot invade, and thus avoid political disputation on matters which are better dealt with by the normal procedures of arbitration.

Mr Clarey - Similar provision is made in the Public Service Arbitration Bill (No. 2) 1956.

Mr SNEDDEN - 1 think it is a most proper provision, and its inclusion in that measure is merely consequential on the acceptance of that principle in this bill.

I have stated the matters that occur to rae on the consideration of this measure. 1 emphasize to the Minister that I do not agree with the provision to open up before the Commonwealth Industrial Court the capacity of unqualified people to appear before Lt by leave. Under legislation in this form, I think it is impossible for the court reasonably to refuse leave. I think the provisions of the Judiciary Act should apply. We were told, when the conciliation and arbitration measure, under which the court is constituted, was being considered by the Parliament during the last sessional period, that the purpose of that bill was to create on the one hand an arbitral body, and on the other hand a judicial court, which was to interpret judicially the legal problems that might arise before the arbitral body, and exercise the legal functions of an appeal court. I think that to permit the too free access to that court - and I emphasize that it is a court - of non-qualified people will tend to pull down the whole machinery of arbitration, which places the body determining the matters on a level beyond any field of argument other than properly channelled argument through the mouths of its counsel.

Mr.E. JAMES HARRISON (Blaxland) |3.45]. - If it were not that the honorable member for Bruce (Mr. Snedden) were not so new in this chamber and so utterly ignorant of the real impact of industrial conciliation and arbitration, one would feel inclined to think that he was merely filling in time with his pathetic contribution to the debate on this important subject of arbitration. When we hear a member of his profession, speaking from his place in this House, say that he is completely opposed to the appearance of laymen before this new industrial authority, and contending that only legal counsel should appear before the authority to argue matters, we realize that he is saying, in effect, that when a demarcation dispute is to be settled, the trade unions concerned should instruct counsel such as himself, on the trade union prin ciples involved. What a difficult task that would be! He also suggested that when it is necessary to determine whether a breach has occurred in award working conditions, the trade unions should attempt to brief legal counsel to argue the case before ihe court. What an impossible task! So it could go on.

The ignorance displayed by the honorable member for Bruce is all the more pathetic when we realize that legislation of this character deals with the interests of the people, indeed the very bread and butter of people who are the real producers in this country. We have heard from the other side of the chamber the amazing statement that the mind of the honorable member for Bendigo (Mr. Clarey), who has a long history of industrial negotiation and advocacy, is confused in respect of the principles of industrial arbitration in this country. .

Mr Anderson - Of course, it is.

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