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Friday, 5 June 1970


Mr SNEDDEN (Bruce) (Minister for Labour and National Service) - I move:

That the Bill be now read a second time.

The Bill changes the sanctions provisions, otherwise called the 'penal clauses' of the Conciliation and Arbitration Act. Sections 109 and 111 of the Act dealt with industrial stoppages on the basis of the Commonwealth Industrial Court's injunctionmaking power and its power to punish for contempt. The Bill will deal with an industrial stoppage as a breach of an award but before the prosecution may proceed it will be necessary for the parties to have taken advantage of the conciliation or, if necessary, arbitration of a presidential member of the Commonwealth Conciliation and Arbitration Commission. The Bill comes at the end of a long series of discussions that have been held between myself, and my predecessor and the Attorney-General (Mr Hughes) and his predecessor with representatives of the Australian Council of Trade Unions and the National Employers' Policy Committee. These discussions began in May of last year when the ACTU made representations to the Government about sanctions provisions of the Conciliation and Arbitration Act. I want to make it abundantly clear, however, that the legislation that is now before the House has not resulted from negotiations or bargaining by Ministers with either the ACTU or the NEPC; nor does it result from any bargaining between the ACTU and the NEPC. What is in the legislation results from the Government's own decisions. Throughout the discussions that were held between the Ministers and the 2 national bodies, there was no departure by any of the 3 parties from their policies in relation to the penal clauses. The ACTU position remains unchanged. It is that the sanctions provisions of the Act should be repealed. The attitude of the employers remains unchanged. Their policy is that there must be adequate sanctions provisions in the legislation.

The Government position remains that sanctions are an essential feature of our system of conciliation and arbitration. However, the Government does not insist on the existing sanctions provisions in the Act. The Government sees the sanctioning process as being one of last resort. The Government wants to see every reasonable effort made to solve disputes between management and labour by the processes of negotiation, conciliation and, where necessary, arbitration. When reasonable efforts have failed and there is strike action sanctions ought to be available. When I put the proposals before the Government which have led to this Bill, I was able to take into account the representations that have been made by the ACTU and the National Employers' Policy Committee. The ACTU asked that the sanctions provisions be removed from the Act. This is not being done but I believe that what is now before the House is a responsible and positive response to what the ACTU and the NEPC have put before the Government.

Mr Speaker,the essential feature of the Bill is that before action can be taken to use the new sanctions process the Commission will attempt to resolve the issues that lie between the parties. I believe that the existing sanctioning process which involves the use of the Court's injunctionmaking powers under section 109 and its power to punish for contempt under section 111, are no longer appropriate or desirable. I believe they suffer from 2 main deficiencies. Firstly, there is the immediacy of their availability. Secondly, they do noi allow the Court to take hold of the dispute between the parties and endeavour to assist the parties to resolve that dispute. This is no reflection on the Court. The Court cannot concern itself with the underlying causes of matters which come before it under sections 109 and 111. Therefore, there is a provision that before a sanction can be sought, the party seeking that sanction must notify the Commission. Furthermore, the Commission will be constituted by a presidential member and he will be required to make every effort to settle the dispute that exists between the parties. Not until he has issued a certificate will it be possible to proceed in the Industrial Court.

The giving of this role to only presidential members of the Commission is an earnest of the effort on the part of the Government to ensure that all reasonable steps are taken to solve disputes without the need for their existence to result in the use of sanctions. This is consistent with the Government's aim of encouraging discussion and negotiation between parties in dispute. The Government believes that the status of a presidential member will greatly assist the parties in working out differences between them and thus help to minimise the use of the sanctions process. This is certainly not to say that the Government sees or wishes to bring about any diminution in the role of the lay commissioners. What is now proposed will not bring that about. The very valuable work that the lay commissioners perform will continue to be performed. They will still be called upon to assist in settling disputes between parties including the day to day issues which arise and which may or may not involve the existence of industrial action in the form of strikes and bans.

The Government does not believe that sections 109 and 111 are consistent with its aim of trying to have disputes solved without recourse to sanctions wherever this is possible. This means that when the Bill becomes law, the injunction-making powers of the court under section 109 and its powers to punish for contempt will not be capable of being exercised as sanctions against unions or employers for award breaches. Section 109 has been used principally in the past to secure observance of so-called bans clauses of awards and, where it could be shown to the court that orders made in this way under section 109 were being breached, the court could punish such breaches as contempt of the court and impose a fine of up to SI ,000. This is being swept away. In future, there will be I sanctions proceeding and not 2. Moreover, I would point out to honourable members that by clause 13 of the Bill now before the House, all orders made by the court under section 109 in relation to awards and still in existence will come to an end on the Bill receiving royal assent.

Section 119 of the Act enables penalties to be imposed for breaches of awards of the Commission. This Bill will develop that section for use as the new sanctions provision and all breaches of awards will be punishable under that same section. This means that if an employer fails to observe obligations placed on him by an award such as, for example, the payment of wages fixed by the award, he will be liable to a penalty under section 119. If a union or an employer breaches an obligation imposed by a clause of an award which says, for example, that the union or employer is not to be party to some form of direct action, it will also be liable for a penalty under section 119. Unions and employers will come within the same maximum penalties for breaches of awards. The important difference is, however, that if a union or an employer is thought to be in breach of a clause of an award such as I have just referred to, it would not be possible immediately to take action under section 119. There will be an obligation to notify a presidential member so that attempts can be made to settle the dispute giving rise to the apparent breach on the part of the union or employer.

I should also emphasise that the Bill provides that only a presidential member of the Commission will be permitted to deal with an application for the insertion in an award of a clause which would place an obligation on a union or on an employer not to be party to action that would hinder, prevent or discourage the observance of or the performance of work in accordance with the award The ACTU submitted that penalties imposed by the Industrial Court under section 111 of the Act for contempt of orders made by the court were accentuated because on occasions the court imposed fines for each day on which contempt was found to have been committed. This meant that unions could be fined up to $1,000 a day. The Bill ameliorates this. The Bill provides that where there is a provision in an award that a breach of that award constitutes a separate breach on each day on which the breach continues, the maximum penalty that the court can impose will be $500 for each separate breach, whereas the maximum penalty that the court can impose where there is no such provision in the award will be $1,000. These provisions will apply in respect of all types of breaches whether they be committed by a union or by employers.

In its representations to the Government the ACTU submitted that in addition to the penalties imposed for contempt of orders made by the court there was an added burden in the form of the costs awarded by the court in proceedings under both sections 109 and 111. The Government is not prepared to eliminate completely the awarding of costs in sanctions proceedings. This would be to set a most undesirable precedent. However, in 1967 the Conciliation and Arbitration Regulations were amended so as to provide that in connection with proceedings under sections 109 and 1 1 1 costs could not be awarded in respect of more than 1 counsel or in respect of Her Majesty's Counsel, except if the court held that the nature of the proceedings was such as to warrant the appearance of more than 1 counsel or Her Majesty's Counsel. The Government proposes to have the regulations amended following the passage of this Bill to extend that provision to proceedings taken under section 1 19.

Also relevant to costs is clause 17 of the Bill which provides that employees of organisations will be able to appear before the court. Nowadays many organisations of employers and employees engage persons such as industrial officers. Their every day work makes them knowledgeable and experienced in industrial matters and, therefore, the Government sees no reason why they should not be permitted to appear before the court within the existing framework of section 117a. Similarly, the Bill would permit employees of organisations to appear before the Commission and the Flight Crew Officers Industrial Tribunal. Moreover, since the Bill would take away from the Industrial Court its power to order compliance with an award under section 109 and its power to punish breaches of such orders as contempt there will be a reduction of legal costs.

There are other related provisions which 1 now mention briefly because they are largely of a consequential nature. Section 109a of the Act will be repealed because it was related to the provisions of section 109 now being deleted. The appeal and reference provisions of the Act will apply to proceedings before a presidential member when he is dealing with matters to which clause 6 of the Bill refers. The new sanctions process thai I have outlined will also apply in respect to the Flight Crew Officers Industrial Tribunal and the Coal Industry Tribunal except that the role of a presidential member will be exercised by those persons who constitute those tribunals. The Bill also proposes an amendment of the Conciliation and Arbitration Regulations to provide for payment of fees and travelling allowance to the person constituting the Flight Crew Officers Industrial Tribunal and to persons appointed by the Minister under the Act to deal with a particular industrial question involving flight crew of aircraft.

Regulations prescribing fees and travelling allowance for these persons were notified in the Commonwealth 'Gazette* on 15th January this year. The Regulations included a provision validating payments made from 13th December 1967, when a person was first appointed. On 21st May the Senate disallowed the regulations on the grounds of the high degree of retrospectivity for which the regulations provided and the fact that payments had been made in anticipation of the making of the regulations. Clause 21 of the Bill provides for the amendment of the Conciliation and Arbitration Regulations in the terms contained in the amendments made by the disallowed regulations and provides that all payments made shall be taken to have been validly made. After the Bill becomes law there will be a fee of $75 a sitting day for the person constituting the Tribunal, $100 a sitting duy for a person appointed by the Minister to deal wilh an industrial question and travelling allowance for each at the rate of $21 a day. Power to amend or repeal the regulations by further regulations is preserved for the future.

Mr Speaker,this Bill contains a positive response to representations made to the Government by both the ACTU and the

National Employers* Policy Committee. The Government has not taken a hard line approach lo the matter of sanctions, lt has sought to bring the sanctions process more into line wilh what it believes to be current needs, lt has not resiled from its po1 icy that there must be sanctions. It has once again reiterated thai it sees die sanctions process as a last resort process. The emphasis of the Bill is on the use of negotiation, conciliation and, where necessary, arbitration, to resolve industrial issues between management and labour. The Government does not believe that the existing sanctions process represented by sections 109 and 111 is appropriate any longer. This indicates that the Government recognises the thought and attention being given to our system of conciliation and arbitration at the present time. 1 also have been .giving a very great deal of thought to thai system.

There have recently been developed by national tripartite agreement a set of 'Principles for guidance in establishing and using effective procedures for avoiding and settling' industrial disputes'. I welcome this agreement. Ii represents an important step forward not merely because it will lead to detailed dispute settlement procedures but also because it is the product of tripartite national discussions. If Government, employers and the trade union movement cun find common ground on principles relating to such a fundamental matter, then the process of translating those principles into detailed procedures at plant and industry level should follow. The principles were worked out between Ministers and the ACTU and the NEPC independently of their respective attitudes to industrial sanctions. They are not linked in any way wilh what is included in this Bill. Their importance is that sensibly used they ought to go a very long way towards making the sanctions provisions of the Bill the last resort which they are intended to be.

I take this opportunity to acknowledge the effort contributed by my predecessor and the Minister for Education and Science (Mr N. H. Bowen) when he was AttorneyGeneral in the evolution of the dispute settling procedures. The present AttorneyGenera! (Mr Hughes) has participated with mc in our discussions since November last with the ACTU and the NEPC. I take this opportunity to express my thanks to my 3 colleagues. I commend the Bill to the House.

Debate (on motion by Mr Clyde Cameron) adjourned.







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