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Tuesday, 8 May 1973
Page: 1831


Mr RIORDAN (Phillip) - I did not intend to speak on this matter but, in view of some of the remarks that have been made, may I speak very briefly. I did not believe that the onus would ever fall on me of standing in this Parliament to say a word in defence of the employers, particularly to defend them against a move by the Liberal-Country Party group in this Parliament which would deny them a defence under a prosecution pursuant to the Conciliation and Arbitration Act. The nonsense that has been put forward tonight in respect of proposed sub-sections (2a) and (2b) of section 5 of the Act on the basis that it is some reversal of the onus, is sheer and utter humbug.


Mr McMahon - Nonsense. You are a humbug yourself if you say that, because we have the best legal advice there is.


Mr RIORDAN - 1 know it has been a long time since the right honourable gentleman was the Minister for Labour and National Service but surely he must still be vaguely familiar with the provisions of the Act. If the right honourable gentleman glances at this clause he will see that it provides that where there are grounds for the conviction of an employer, even in a situation where there is sufficient evidence to convict the employer of an offence, no conviction will be made against him if he can satisfy the court of certain facts. In other words, where it is proved that he has intimidated or threatened a unionist with disadvantage, or threatened to dismiss an employee for certain things which are an offence, and he can satisfy the court that those things occurred because of something that was unlawful under the civil or criminal law, no conviction will be made in spite of the facts being proved. That is what it says.


Mr McMahon - Go on with the last part which says: 'Otherwise than by reason only of its being a breach of the contract of employment'.


Mr RIORDAN - The right honourable gentleman is trying to give the clause a meaning which it simply does not have. He has suggested that the provision be excluded from this Bill. Frankly, my whole history and all of my instincts are in favour of agreeing with him. It would not upset me one iota if the Minister for Labour (Mr Clyde Cameron) agreed with that proposition and deleted the clause from the Bill. I can tell the right honourable gentleman that the people who would be writing to him and criticising him for what had been achieved would not be trade unionists. They would be those who elected him and who are at the moment keeping him here. I refer to the large corporations.

Some suggestion has been made that the total proposal to amend section 5 is in some way a move to give improper power to shop stewards to build up union monopoly power, as I think the Deputy Leader of the Opposition (Mr Lynch) put it. In its present form section 5 is practically meaningless. It is practically impossible to get a conviction. I invite honourable members opposite to indicate where the rs has been a conviction in recent years. I invite them to look at the cases which have been heard and the results of them. Even though facts have been clearly established, convictions have not been possible. I speak of facts, not fiction. These are facts. There is no case, nor is there any need for a case, under section 5 where there is strong union organisation. Where there is union power, to use the words of the Deputy Leader of the Opposition, this provision is not required and it certainly is never used.

If an employer in a strongly organised shop attempts to intimidate or victimise a union delegate another action occurs. Victimisation simply does not occur where there is adequate union organisation, where there are properly regulated industrial relations. Most responsible employers I know are very sensitive to the charge that they may be victimising a union delegate. They are very sensitive indeed on that point and are most anxious not to put themselves in a position where that charge may be levelled against them. The provision is necessary to protect a union delegate in a poorly organised plant or establishment conducted by a fly by night or reactionary employer. There are still some such employers who would seek to prevent union organisation in their establishments. To speak of the whole problem of shop stewards and the finish of negotiation in the trade union movement is to draw a read herring across the trail.

I am the first to admit that there have been problems and I have no doubt that there will be problems in the future when shop stewards in some industries take matters into their own hands. There will be defiance of union leadership and objectives. There has been in the past and undoubtedly will be in the future, but that has absolutely nothing to do with section 5 of the Conciliation and Arbitration Act. The way to fix that problem has already been outlined by the Minister. At least it will be a concrete and positive step along the road. The Minister has reported to the Parliament his proposal to establish schools and training procedures for union delegates, shop stewards and the like. 1 deny that this proposal would in any way add to industrial disputation.

In my opinion, a great deal of what has been said about this provision has been ill informed. To suggest that this provision will allow shop stewards to subvert their authority and to take more than their authority is to deny the words of the Bill. The Bill refers to an action being an 'act or thing done within the limits of authority expressly or impliedly conferred on him by the organisation.' In other words, an officer, delegate, shop steward or other official may not be victimised if he is taking an action which is within his authority so to take. I believe that this is a direct contradiction of the proposition put forward by honourable members opposite.

I repeat that where there is a strong organisation - where there is union power, as the Opposition puts it - whether monopoly or otherwise, there is no need for statutory protection of shop stewards, because they have it in a much more effective way. I commend the provision and the Bill to the House. I believe that the opposition to the clause has been ill informed. It has been emotional rather than logical. I suggest that members of the Opposition should have a further think about the provision to which they strongly object. It is in fact a protection to employers and certainly it is not something to which employers will object.

Mr McMAHON(Lowe) - I wish to make a personal explanation.


The CHAIRMAN (Mr Scholes - Does the right honourable member claim to have been misrepresented?


Mr McMAHON - Yes. I have been misrepresented by the honourable member for Phillip. In my statement relating to clause 6, which seeks to amend section 5 of the Act, I stated on behalf of the Opposition that we would divide on the whole of clause 6. We will divide on paragraphs (a), (b) and (c). As we eliminate the first part it will necessarily mean that we will have to divide on the proposed new sub-section (2a). The honourable gentleman tried to create the impression that we would divide only on the proposed new subsection (2a). He was not present to hear what I said. Consequently, he can be forgiven for misunderstanding or misrepresenting what I said. But even if he had been here, to say that we would divide only on the proposed new sub-section (2a) must be absolute nonsense because that proposed new sub-section does give some protection, although only partial protection, to an employer who might justifiably dismiss an employee but is subsequently prosecuted. I will not touch upon the question of onus of proof because we have legal opinion to justify the contrary case to that put by the honourable member.


The CHAIRMAN - Order! I suggest to the right honourable gentleman that if he wishes to speak in the debate he may do so, but he sought to make a personal explanation.


Mr McMAHON - I agree with you, Mr Chairman, so I will come immediately to where misrepresentation occurred. The honourable gentleman will be proved to be wrong because he will find that we divide on the total amendment proposed to section 5 and not on only one part of it.

Mr RIORDAN(Phillip)- I wish to make a personal explanation as I claim to have been misrepresented. I did not at any time during my address refer to the right honourable member for Lowe as having said that the Committee would divide on any sub-clause, or indeed, on the whole of the proposed amendment to section 5. The right honourable gentleman is confusing what I said with what was said by the honourable member for Burke. I forgive him for misrepresenting me. He was talking about somebody else, not about me. I referred to what the right honourable member said about the proposed new sub-section, not about whether the Committee would divide. That is a matter of complete indifference to me and would not be worth taking up the time of the House to comment on.

Question put:







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