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Thursday, 20 September 1973
Page: 1391


Mr Clyde Cameron (HINDMARSH, SOUTH AUSTRALIA) - . What I wish to say in reply to this matter is that it is utter nonsense to say, as the honourable member for Moreton (Mr Killen) said, that one can go along and kick the general manager up the rear portion of his anatomy and get away with it. He says it wouldbe perfectly in order to do so. Of course it would not be perfectly in order to do so. I refer the honourable gentleman to clause 6 of the Bill, paragraph (c). For some reason I do not understand why the honourable member for Wannon (Mr Malcolm Fraser) proposes to delete it. The paragraph states: (2a) In a prosecution for an offence arising under paragraph (f) of sub-section (1). it is a defence if the employer satisfies the court that -

(a)   the act or thing done or proposed to be done by the employee was or would have been unlawful under the civil or criminal law, otherwise than by reason only of its being a breach of the contract of employment;

Quite clearly the honourable gentleman is determined that a person shall not stop work no matter what the justification. It could be a dispute over safety where a person is imperilling his life by continuing to work. But it would be strictly, according to the proposal that the Opposition wishes to fasten on to the trade union movement, an unlawful act for a union official to enter a place of employment and say. to the employees: 'You ought not to work in this place any longer. Get out of it before it blows up and you go with it.' The Opposition says that would be an unlawful act because it is unlawful to go on strike and the employees would be going on strike even if they refused to work in conditions that would put their lives in peril. Proposed new sub-section 2A continues:

(b)   the conduct of the employer that is the subject of the charge was reasonably justified by reason of the unlawful nature of the act or thing referred to in paragraph (a) of this subsection.

If a person was found committing an act of sabotage or found stealing or misbehaving himself in a way that was not compatible with his position as a member or officer of the union the employer could dismiss him. The Bill contains provisions to give employers full protection in taking action by way of dismissal or other forms of discipline against employees for those kinds of acts. Proposed new sub-section 2b states:

(b)   the conduct of the employer that is the subject of the charge was reasonably justified by reason of the unlawful nature of the act or thing referred to in paragraph (a) of this sub-section.

There is ample escape for the employer. He has adequate grounds for defence. His grounds for defence are enshrined in the statute. All that the employer has to say is that the employee was doing something unlawful and that whatever he, the employer, did - whether it was dismissal or discipline in any way at all - could reasonably be justified by reason of the unlawful nature of the act or thing that the person against whom he took the action was doing at the time. That is a perfect defence and it gives the employer all that he needs.


Mr Street - What about the other clause?


Mr Clyde Cameron (HINDMARSH, SOUTH AUSTRALIA) - The honourable gentleman says: 'What about the other clause'. If he looks at proposed sub-section 2B he will see that it goes on to state that in a prosecution for an offence arising under paragraph (c) of sub-section 1A, it is a defence if the employer satisfies the court of the matters set out in paragraphs (a) and (b). I will not keep the Committee any longer by reading it again. It is a complete defence for the employer to be able to say that he acted reasonably having regard to the unlawful nature of the act which the person was performing or that he took the action because what the person was doing was unlawful under the civil and crimi-nal law.







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