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Thursday, 20 September 1973
Page: 1350


Mr MALCOLM FRASER (Wannon) - This is an important Bill. The Opposition's attitude to it is determined by its analysis of what will best serve the legitimate interests of all parties - employees, employers and the public at large. Public interest is deeply rooted in our arbitration system and in our view it ought not to be weakened or bypassed. A great deal of heat has traditionally surrounded industrial debates, especially in recent times. This has been caused by a variety of factors, amongst which must be included at the forefront the changing and dynamic nature of industrial relations which involve interaction between labour, management and government. These are strongly influenced by political, economic and sociological factors. Unions are more aware of their power than they have ever been. They seek to use it. Full employment and a continually growing economy have altered the attitudes of employers and employees. We are more in touch with overseas developments and people have been introduced to our industrial forum who are more used to voluntary negotiation than to compulsory arbitration.

In a few moments I want to emphasise some of the changes that we regard as significant and some of the areas where we are actively developing new policy. But first let me say that it is our objective to reduce the temperature of the industrial debate. We want rational discussion based on the merits of particular arguments and I hope that the Government will respond in the same manner. We take this view for a very simple but for a very plain reason. Good industrial relations are essential to everything we hope to achieve as a nation. If we want rising standards, greater opportunity for leisure and a more united community, then breaking down artificial barriers between employees and employers is central to the task. Whatever work we do we are all Australians with some common objectives and hopes for ourselves and for our families. Every man and woman wants security for himself or herself and family, and want and expect a reasonable share of the affluence that Australia can offer. I do not believe that the average Australian worker wants his family's economic life disrupted by hardship caused through strikes, any more than he wants it caused by unemployment.

The arbitration system grew out of the crisis of the 1890s. There was general agreement that an independent third party was required to settle industrial disputes. The arbitration system was necessary to protect the weak. Under it trade unionism prospered. In the first instance its main achievement was a living wage. Now standards have been lifted much beyond that by the same system. In the rapidly changing scene that now confronts us the Opposition believes that the conciliation and arbitration system remains necessary and important for the protection of people involved in disputes and for the protection of that anonymous third person represented by the public interest. Even at this point it is possible to get into false arguments by a misunderstanding of what is meant by the official system of conciliation and arbitration.

But before I come to that let me first emphasise the very real advantages that the system affords unions, and quite deliberately so. Firstly, it gives unions a monopoly of representation, a powerful weapon indeed.

Secondly, it enables unions to enforce their own registered rules. Thirdly, it provides them with a capacity to impose sanctions on employers who might break an award or agreement. Fourthly, it gives unions the capacity to get an official award which represents the minimum conditions applicable to a particular industry and it gives it the force of law. Fifthly, it enables a negotiated agreement to be registered and enforced.

These are powerful arguments and are clearly the key to the overwhelming support given to the system by the union movement. I do not for one moment believe that any large number of Australian workers would appreciate an attempt to weaken or to bypass the system that has provided them with significant protection and support over the years. People sometimes talk as though the Commonwealth law provides only for official conciliation between parties or for an official arbitration of a dispute. There are sometimes suggestions that all industrial arguments should be conducted by third parties through conciliation or arbitration. Such a view is unreal. It neither represents the facts of present industrial relations nor a correct interpretation of what Commonwealth law has for decades provided. On an earlier occasion I indicated that a number of companies prefer what is loosely called 'collective bargaining'. For many the term carries with it overtones of threat - of negotiation under compulsion. Therefore, I prefer the term 'voluntary agreement'. Certainly a number of unions have moved in the same direction. If voluntary agreement, as it does to me, means a free and proper negotiation provided the public interest is maintained, there can be little to quarrel with and often much to commend.

Such negotiations have for decades been part of the official conciliation and arbitration process. They are recognised by the certification of agreements by consent awards and by Part 10 of the Act which provides for the filing with the Industrial Registrar of agreements for the settling of disputes. Such negotiations are often' examples of good industrial relations.

The Act deliberately encourages such arrangements so long as the public interest is not prejudiced. When the parties cannot agree they call for the services of conciliation or of arbitration. Thus negotiation in this sense is officially part of the conciliation and arbitration process and always has been. We need to remember that our system often involves 3 steps. First, voluntary negotiation. If the parties fail and emphasis is made on conciliation, and arbitration stands as the settlement of last resort. Our system is in fact a mixed system in which voluntary agreement in the sense in which I have described it is an essential part. I have been advised that something between 60 per cent and 90 per cent of the conditions under which employees covered by Commonwealth awards or agreements work, are in fact negotiated arrangements.

I have emphasised the importance of freely negotiated agreements. We have quite a different view of arrangements that might be forced upon an employer or upon employees as a result of one party having the capacity, and using the capacity, to hold a shotgun at the head of the other. That certainly does not represent our view of negotiations or of voluntary settlement of disputes and we will seek to maintain and reinforce arrangements that would reduce its occurrence to the minimum. There are many advantages of this dual system. Where a third party is required for mediation or for arbitration, that is available. Where the 2 parties feel that they know the industry best and can come to a proper accommodation, that is encouraged within the framework of the Act. Third, the structural framework is provided for those who prefer one stream and for those who prefer the other. Fourth, it provides a fair test of voluntary negotiation in Australia. Fifth, a formal alternative is provided for those disenchanted with third party conciliation and arbitration. Sixth, such negotiations are kept within the concept of the public interest by the provisions of the Act and by the requirement of certification or by the procedures relating to consent awards.

The effectiveness of the available procedures can in part be judged by the fact that only 1 .4 per cent of all employees in the work force work under non-registered collective arrangements. We would all emphasise the importance of good industrial relations. We can have some pride in the unique Australian experience, but certainly no complacency. We must remember that any system is only as good as the people involved in it. It is the people on both sides of the industrial scene who count. I regard it as an imperfect measure, but days lost through industrial disputes per 1,000 employees does provide some measure of the success of the system of the total area of industrial relationships. On that basis, in the 5 years between 1967 and 1971 Australia performed much better than Canada and the United States but worse than the United Kingdom, Sweden, France and the Federal Republic of Germany. I am glad to see that the Minister for Labour (Mr Clyde Cameron) is prepared to learn from overseas practice and the examination which I understand has taken place in their experiences.

Let me now indicate some areas which are of concern to the Opposition and which are vital to good industrial relations but not directly affected by this Bill. First, we would support in general terms the Minister's proposals for trade union education. Such education should, however, be free from any political indoctrination, and I would take that to be the Minister's objective. I would, however, put one matter to him. One of our objectives should be to break down any false and artificial barriers between management and labour. If management is educated in one place and labour in another place those barriers will tend to be reinforced. Each would benefit from a proper understanding of the problems and difficulties of the other. Therefore we suggest that industrial officers and unionists should, in part at least, undergo their training in one place and not separately as the Minister proposes. We need to develop the concept in which all men and women who work in an industry are regarded as having a common objective and not regarded as competitors. Second, there needs to be a better understanding that productivity advantages employees as well as employers. Too often productivity is regarded as a bonus for the employer alone. However, it is not good enough for it merely to be said that productivity advantages employees. It must be demonstrably so and a great deal more work is required in this area so that productivity arrangements can more commonly find their way into agreements and awards.

Third, those who work in an industry need security. Hitherto that security has been dependent not only upon a person's own skill as a worker but also on the vagaries of the market place or on the capacity of management to meet changing consumer demands. A further unsettling factor is becoming more and more evident; that is the force of technological change. It is within our capacity to protect men and women who become redundant for that last reason. It is not only a question of retraining. It is also a question of maintenance of living standards that may have taken 20 years to achieve. It is our objective to examine this problem in depth. We will also be exploring with management and unions means of easing insecurity caused through temporary changes of demand.

Fourth, more needs to be done to see that there is real job satisfaction. It is not only a question of wages and conditions but also of the kind of work, say, its repetitive nature, as with the dreary and unending task of tightening the same type of nut on the production line. Some interesting experiments have been conducted overseas that could be tried here with advantage. Job satisfaction and job enrichment are high in our priorities in attempting to improve the quality of the working environment. Fifth, if we are looking for substantial changes in management we have the right to expect also that the union movement will submit itself to a searching examination. Is the craft union background and philosophy of Australian unions really the best for Australia or could we do better with industry unions? Such a change, if it were desirable, might take a lifetime or more to accomplish but it might also do much to help give men and women who work in a particular industry a sense of. identification with that industry.

Sixth, the need for consultation and understanding becomes daily more important. Men and women cannot be regarded as mere inputs like an ingot of steel in the production process. The complex problems of labour and management relations are being actively examined by the Opposition. It is an area to be explored and developed. The Opposition wants to see sensible arrangements developed to give workers a sense of involvement. We want to demonstrate to both labour and management that their true interests are interests held in common. We want to establish circumstances in which they have a better understanding of each other's problems.

Seventh, there certainly ought to be more consultation between management and labour with management putting problems rather than solutions to labour. Eighth, job evaluation ought to be joint and not merely a function of management. Ninth, there are certainly opportunities for a greater disclosure of information to employees. These are some of the areas we are examining. I might add that in my own investigations I have already made arrangements for wide ranging discussions with both unions and management in a number of different industries.

I come now to the provisions of this modified Bill. I hope that it is given proper debate, especially at the Committee stage, because our purpose is to assist in passing a measure that will effect improvements in industrial law. This is an important but by no means the only important aspect of industrial relations. It must be realised that the Government itself has recognised the serious imperfections of its earlier proposal. If the confidence shown in the Minister's original second reading speech was well based the Bill would have been resubmitted and the Opposition would have been challenged to a double dissolution over the issue.

The Prime Minister (Mr Whitlam) twice threatened to call a double dissolution. At a Press conference on 8 May attention was drawn to the fact that the Government had declared the Conciliation and Arbitration Bill to be urgent. The Prime Minister said that it was one of substance and could lead to a double dissolution. He repeated the substance of that to his favourite union, the Amalgamated Metal Workers Union, on 11 May. All bluster and thunder from the Prime Minister has since died. The Bill has been split in two. The Government has run away from that question and has recognised the objection to proposals that would have left penalties and sanctions on employers but not on employees. To that was added a further proposal to make union officials immune from actions in tort.

The Minister told us that these aspects will be submitted in a later Bill and that proposals concerning either of those aspects had been removed from this Bill. That being so it is the Opposition's hope that the Minister will support our amendments which are designed to give full effect to his words in that respect. Three provisions relating to penalties have been left in the Bill. One is in Part X of the Bill which the Minister seeks to abolish. Another concerns organisational bank accounts. A third concerns section 158p in the Bill by which the Minister proposes to remove Part III which enables a court to impose penalties for irregularities concerning ballots on amalgamations.

I suggest that a very large part of the responsible union movement does not support the Minister and recognises that penalties for breach of an agreement or award must flow both ways. I have knowledge of well over 100 consent awards and agreements in which penalty provisions of one kind or another have been accepted by both sides. In view of the Minister's own record in this particular matter it was a mark of the degree to which the left wing unions can direct the Minister that his earlier proposals forbade the certification of such freely negotiated arrangements.

The abolition of Part X is not only contrary to the Minister's assurances that sanctions and penalty provisions would not be part of this Bill; it is also removing from the Bill a useful section which encourages 2 parties to come to an agreement concerning the means of settling a dispute. There is some evidence that the Minister's abortive industrial policy of two or three years ago was based on Part X of the Act. Indeed, the Minister's proposal for a $20 a day fine was lifted straight out of Part X. Perhaps the Minister wants to remove from sight and memory all reference and evidence of that unhappy policy.

Rather than abolish Part X we would seek to promote it because its purpose is sound and it is used as a means of achieving agreement concerning the method of settling disputes. Furthermore, some of the provisions of clause 6 would have a powerful and harmful effect if the Government were later able to muster a majority for its proposals concerning tort, to give union officials immunity from certain aspects of the civil law. Clause 6 as presently drafted by the Government would give unreasonable protection to employees and would place an unreasonable burden of proof on employers. It would add enormously to the power of shop stewards and I had thought that it was the Minister's intention to strengthen the hands of fulltime union officials rather than those of shop stewards. If that is the Minister's object, this Bill does not achieve it because some of his proposals concerning union democracy would seriously weaken the negotiating power of such officials in industrial disputes.

Clause 6 covers an extremely wide area as it is presently drafted and could render an employer liable to prosecution in certain circumstances. One such circumstance would be the closing down of his works or the laying off of staff as a result of lost production through union bans in support of higher wages or better working conditions. In such a case the employer would have the onus of establish ing to the satisfaction of a court that in dismissing employees he was activated by the economic circumstances rather than by the union bans which had brought on the economic circumstances. This would be extremely difficult to do. In the case where an employer dismissed 100 employees he would be liable to total penalties of $400,000 as well as orders for reinstatement of each employee.

The next example is where he dismisses or in some other way disciplines employees who without proper authority of management and in breach of a contract of employment have absented themselves from duty to attend union demonstrations or meetings in support of claims of other workers in establishments unconnected with the employer's work place. It will be noted that there is no limit to the area or place in which the officer, delegate or union member may perform his action as this may be done in an industrial establishment or elsewhere. There is also no limitation on the authority which may expressly or impliedly be conferred on any delegate or member by the union.

The practical effect of the proposed amendments would seem to be that provided the employee stops short of committing offences such as assault or damage to property and does not commit torts such as defamation he may absent himself from work or indulge in any bans whatsoever with impunity provided that there is some connection between the absence or ban and an industrial claim by members of the same union. We are proposing substantial amendments to this clause. I know the Minister will want to fulfil his pledge concerning the removal of all penalty amendments and proposals affecting tort from this Bill and therefore the Opposition looks to support in these matters because the inter-relationship with this particular amendment is clear. The Minister is well aware of the changing power relationship between management and unions. It is important, therefore, to look at the general tenor of the Government's proposals to see how they affect that relationship and the processes of negotiation, conciliation and arbitration. There are 2 unfortunate trends in the Minister's proposals. On the one hand they weaken the arbitral powers of the Full Bench and thus the authority of the Commission. We will seek to keep in the Act those provisions which require certain major matters to go before the Full Bench, not only for awards but also for agreements. If agreements concerning standard hours of work, for altering rates of wages on grounds fundamentally related to the national economy, for altering minimum wages and annual leave, do not have to go to the Full Bench for certification then clearly unions will tend to prefer agreements to awards. In our view that impetus should not be provided in that Act.

This approach of the Minister is consistent with his proposal to change the concept of public interest. In the proposals before us an agreement must not be certified or an award must not be made if a major detriment to the public interest would result. In our view this represents a significant and unreasonable weakening of the concept of public interest and we will seek to have the present words not in the public interest' maintained. Thus a member of the Commission would refuse to certify an agreement or make an award if it is not in the public interest. The public interest concept has renewed importance at present. In view of the Government, the conciliation and arbitration process is merely there for the settlement of disputes. The Government has so far denied the public interest in wages settlements or their impact on inflation. We are concerned to maintain the public interest and this is especially important during the present period of inflation. The Government, on the one hand, seeks to weaken the concept of public interest in wages and income settlements, while on the other hand it is asking for absolute control over prices. The lack of consistency in the Government's approach is obvious.

While the Government is weakening the arbitral functions of the Commission by these 2 inter-related changes it is also weakening the capacity of union officials to negotiate. This compares noticeably with the increased power and protection the Minister seeks to give shop stewards under clause 6, as I have already mentioned. I appreciate this may not be the Minister's intention. He had certain experiences with a particular union. But I suggest that his proposal for rank and file approval of the principal terms of an agreement are unreal and unworkable. Union officials would have no negotiating capacity and we do not believe that to be good for unions or for industrial peace. We will seek to amend those provisions. This, I think, would be particularly relevant to the Minister's own old union because it would not be possible with the far flung membership of the Australian Workers Union to get the kind of agreement spelt out in detail by the provisions of the Bill. Therefore, the Opposition is unable to accept the Minister's proposals in full, although we do go with them a little of the way.

The Minister is going to a very considerable length to see that union officials are properly elected - democratically elected - by their unions. It does not seem to be consistent to take this step and then to take all negotiating authority and capacity away from those same properly elected officials. There is another area where the Minister is, we believe, quite wrongly reducing rights and opportunities of unionists, employers and of affected third parties. This concerns the proposed abolition of appeals from consent awards and agreements. We believe that the right of appeal should remain not only for third parties affected by an earlier award but not consulted by the new one, but also for either of the principal parties who, after agreement is certified or a consent award is made, might find new evidence which completely alters their attitude. Such a right ought to remain. It is, of course, a limited right by the need for the Commission's approval before an appeal can be heard. Therefore, it is not unrestricted. In the Opposition's view that right ought not to be taken from employees or from employers. At this point we need to recognise the facts of industrial life. There are key areas in industry where substantial changes flow through the whole industrial forum. If these key areas come to an agreement there is an inevitable flow on. This is the situation our legislation sought to deal with. The Government is seeking to sweep it all away. But the objective that we pursued was a proper one and we are therefore opposing the Minister's amendments in this area. I do not suggest that that is the only way of touching this problem. Rather than have provisions which allow opportunity for a third party to appeal it may be possible to establish circumstances in which the Commissioner could see that such third parties were protected before an agreement was certified. But, in the present circumstances, as I have emphasised, we are opposing the Minister's amendments.

Our attitude to the important question of amalgamation has not changed. I want to emphasise that there are 2 principles involved here. Firstly, do the rules help or hinder amalgamation; secondly, are the rules fair and just to all parties? There needs to be some compromise, perhaps, between the 2 principles. In relation to ballots - and I am talking now concerning amalgamations - a number of provisions in the Bill would reduce the possibilities of fair and impartial ballots for amalgamation. For example, the Minister is seeking to remove a section from 158l which requires that notices of the ballot dates must be given not less than 3 months before the beginning date of the ballot. With this section abolished there will be possibilities of all sorts of abuses and of denying union members the right to vote. In addition, in section 158h the Minister is reducing the grounds on which objections can be made. At present objection can be made if there is an alteration in the rules of the organisation and the Minister is limiting that to an alteration of the rules as they affect eligibility for membership. There are other alterations to rules which can significantly affect the rights of individual unionists and the section ought not to be limited as the Minister would want. The Minister is. also seeking to allow amalgamations to take place by election under union rules. We regard the matter as so important that we will seek to preserve the requirement for a court controlled ballot. I want to emphasise that while the principle of amalgamation has been accepted because of the large number of unions in Australia, 65 per cent of all unionists are already in 21 unions and amalgamation has, in the past, seemed to take place between the large and not between the smaller unions.

Furthermore, demarcation disputes, the existence of which has often been given in favour of amalgamation between unions, represents only a small percentage of strikes and of lost time. Only an average of 3 or 4 per cent of all lost time in the years from 1966 to 1970, and under 10 per cent of all strikers are over trade unionism matters. Under that definition demarcation disputes are included amongst other things. The Minister is seeking statutory recognition of the right of entry of properly accredited union officials to places of work. We recognise that such a right does, de facto, exist. This is included in many awards and in many agreements. We believe the Minister's proposal is far too wide and we will seek acceptance of an alternative amendment which will recognise the right, quite categorically, but which would leave it to the Commission to determine or the parties to agree between themselves and have certified to give it the force of an award. We believe that to be prefer able because circumstances differ greatly between different industries.

We support the Minister's attempt to establish a properly based inspectorate service but we do quarrel with the way in which the Minister is going about it. The Minister is not only seeking to establish circumstances in which the inspector can seek an interpretation of an award, but also he is establishing circumstances in which he can be personally responsible for the appointment of inspectors. Since the inspectors already have the power to prosecute for breaches of an award, we can see that the Minister is establishing a position in which his personal appointees could have a substantial impact on the conduct of industrial relations.

As a result of this, we are proposing 2 safeguards: Firstly, where an inspector wishes to seek an interpretation of an award, we believe that the Minister should give his approval because at the moment there is no protection against the possibility of the inspector using such an interpretation in a subsequent prosecution. Secondly, we will be proposing that inspectors should be appointed under the safeguards of the Public Service Act. We have no objection to inspectors being appointed from outside the Public Service, but we do not believe that they should be the personal appointees of the Minister for Labour, or of any Minister.

I wish to make one point clear to the House and to the Minister. The Minister made the facilities of his Department and his departmental officers available to me and to the Opposition concerning any factual matters related to the legislation. Because of that action and because of the Minister's desire, as I would believe, to achieve the passage of reasonable and sensible legislation, we discussed a number of matters together. He suggested to me that if he could see the amendments that the Opposition wished to move he would want to take them to the Labor Caucus before this debate took place to see which amendments the Caucus might be able to support. That was done. I told the Minister that, as far as I and our committee were concerned, the amendments that he was given covered the field. But last night - to this extent I apologise to the Minister - on a further reading of the Bill we saw that there was a need to make this amendment concerning the appointment of inspectors. If I omitted to include that amendment in the initial list, let me say that the reason is that I have had 2i weeks or 3 weeks to become familiar with this legislation and with the Bill and the Minister may have had closer to 50 years; so he would be a little ahead of me on that count. That is the reason why in this area there is one substantial amendment which was not in the list of amendments that initially I gave the Minister for him to take to Caucus.

I speak again to the matter of the appointment of inspectors. The House needs to remember that inspectors have policing tasks. It is not within our system to have Ministers appoint personal police forces. I believe that, on reflection, the Minister will recognise this fact. If the Minister replies that in the past we have appointed conciliators and arbitrators, I would say that such people have a judicial or quasi-judicial position and traditionally have been appointed by governments. But policemen must not be appointed directly by governments or by Ministers.

I draw attention to one other clause that the Opposition finds particularly obnoxious. This is clause 77 which seeks to insert a new section, section 186a, in the Act. This provides that, if an employer uses incapacity to pay as an argument before the Commission, it must be disregarded unless the employer furnishes financial evidence in support of the claim. If he does so, he loses the protection of secrecy now provided to him by section 186 of the Act. From the point of view of the Opposition, that is the important matter. The clause that the Minister proposes is offensive because it gives unnecessary direction to the Commission. I am quite sure that the Commission would not listen to an argument that involved incapacity to pay unless the person using that argument furnished financial evidence to support it. But, in the circumstances that now prevail, a person who uses such an argument and who furnishes such financial evidence can claim the benefit of secrecy under section 186. If the Minister's proposal were accepted, an employer could have his financial position revealed to competitors in a way that could be severely embarrassing to a particular firm. That, I believe, is not a proper function of this Parliament, So, the clause gives unnecessary direction to the Commission. But it also denies the right of non-publication to an employer where that right could be quite critical to him in his competitive relationship with other firms.

I come now to important matters or changes of emphasis in the legislation that we support. The proposed fusing of the powers of conciliation and arbitration represents an' important modification of our proposals where we separated these functions at an earlier time. The Minister's new proposals represent a middle course which we believe has developed sensibly from our earlier initiative. We note that if one party objects a commissioner who conciliates cannot continue to arbitrate. So, the principle of separation as it affects a particular dispute can be invoked if either of the parties so wishes.

We support the Minister's proposal to pay the full costs of all court controlled ballots. We regard that as an inducement to hold such ballots. With one exception, we support the proposals to deny the court the right to award costs. We will move an amendment which will preserve such a right where it appears to the court that a party has proceeded vexatiously or without reasonable cause. Because high legal principles are involved, we only partly support the transfer of responsibility to the Minister. Matters relating to the Industrial Court and to proceedings before it should, we believe, remain with the Attorney-General because it is through the Attorney-General's Department that the Commonwealth traditionally is represented in the courts. We believe that there should not be a proliferation of that practice to other departments. Whilst we believe it to be only a partial solution, and an imperfect one at that, we support the Minister's proposal to resolve the difficulties associated with the Moore v. Doyle case.

The Opposition has sought to be. constructive and non-partisan in its examination of this legislation. I hope that the Government will make it possible to carry that view through to the Committee stage where a major debate on details of the Minister's proposals needs to take place. This Bill has lost some of the objectionable features of its predecessor, but it still has serious blemishes that will not advance industrial peace. If our constructive proposals are accepted, industrial law will be improved by an amalgamation of the Government's intentions with our own constructive examination of the Bill.

Mr NIXON(Gippsland) {4.1) - I must comment on the fact that at this time no one from the Government side has risen to support the Minister for Labour (Mr Clyde Cameron).


Mr KeithJOHNSON (BURKE, VICTORIA) - Thank you very much for that!







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