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Wednesday, 31 October 1956


The CHAIRMAN - 1 suggest to the honorable member for Bendigo that he would achieve the purpose of his proposed amendment by voting against the clause.


Mr CLAREY - 1 am hopeful that when I have completed my remarks the Minister will say that he will accept my proposed amendment. That would overcome the difficulty.


Mr HAROLD HOLT (HIGGINS, VICTORIA) - If the honorable member will allow me to make my explanation of the clause, he may agree that it is a wise provision. But perhaps we both are optimistic.


Mr CLAREY - That is an indication that, at any rate at this stage, the Minister is not prepared to accept the amendment that I have foreshadowed. Therefore, I must put my case to the committee. The Conciliation and Arbitration Act is founded on a provision of the Constitution which authorizes the Commonwealth Parliament to pass laws for the prevention and settlement of industrial disputes extending beyond the limits of any one State. An award of the Commonwealth arbitration tribunal binds the employers and employees concerned. An award is generally described as binding the employers named in the schedule to the award and also the members of the claimant organization. The corollary to that is that persons who are not members of the claimant organization cannot claim either the wages or the other conditions of employment prescribed by the award.


Mr Thompson - You want a common rule, really?


Mr CLAREY - As my friend, the honorable member for Port Adelaide, knows, a common rule is not possible under the Commonwealth Constitution. The difficulty has been overcome by a decision of the High Court in the 1920's or the 1930's which enables an organization to create a dispute in an industry as to whether an award shall apply to all employees in the industry. As a consequence of that decision, many awards have been made which apply to all employees engaged in an industry or to all employees in the service of certain named employers in the industry.

The question whether an employee should be required to state that he is a member of an organization has caused a great deal of difficulty in the administration of awards. In times of economic stress some employers were unwilling to employ members of the union covered by a certain award when they could employ non-members at rates of pay lower than those prescribed in the award. Eventually, in order to overcome that difficulty, a provision was inserted in the legislation which stated that no order or award of the court should require an employee to notify his employer that he was a member of the trade union or the organization which had secured the award. The need for that provision is shown by the fact that in section 5 of the principal act there is a provision which makes it an offence for an employer to discriminate against a man because he is a member of a registered organization, is a member of a trade union or is an officer of a trade union. Right from the early days of arbitration discrimination against a man because he is a member of a trade union has been recognized, and the act prescribes penalties for it.

I know that the Minister will say that an employer has the right to know whether or not he is required to pay the award rate to a man he employs. My proposal is a test to ascertain whether the Government desires that awards of the Commonwealth Conciliation and Arbitration Commission shall be observed by employers or whether it desires to afford employers the opportunity to pay less than the rates prescribed under awards made by the commission. The Minister will probably say that the repeal of section 54 is designed to meet the case in which an employer, having employed a man he believes to be a nonunionist, and, therefore, having paid him less than the rate under the appropriate award of the commission, is notified by the employee some weeks later that he is a member of a union and that he wants the award wage. From the stand-point of the trade unions, we say that the commission, having laid down wages and working conditions to be observed in an industry, trade unionists, fair employers, and the Australian community generally expect the employers to pay the wages prescribed under the award. We should do nothing to the Conciliation and Arbitration Act that would encourage or enable an employer to pay rates lower than those prescribed by the commission.

For those reasons, we desire section 54. which prevents the commission from inserting in an award provision that an employee must notify his employer whether he is a member of a union, to remain in the act. ! tell the Minister, frankly, that if the Government accepts my suggestion il will indicate that it desires all employers to pay the relevant award wages and to observe the relevant award working conditions. If it does not accept the Opposition's suggestion, it will leave an opening for employers to discriminate against unionists and to employ non-unionists at lower wages. I sincerely hope that the Minister will agree to my suggestion.


The CHAIRMAN - If the Opposition votes against the clause, the effect will be the same as if the amendment that the honorable member for Bendigo has suggested were put to the committee. I shall deal with his proposal on that basis.


Mr CLAREY - Perhaps the Minister will agree to my suggestion.







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