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Thursday, 20 September 1973
Page: 1395


Mr RIORDAN (Phillip) - I will not detain the Committee for long but one or two points need to be corrected. First of all, all the clap-trap about the reversal of the onus of proof needs to be exposed. Already in the present Act the onus rests on the defendant to prove that he was not actuated by the reason alleged in the charge. It is in the present sub-section (4). I remind honourable members opposite, including the eminent lawyer, the honourable member for Moreton (Mr Killen), who seems to have left us temporarily, that that has been in the Act for nearly 60 years. Sixty years it has been there and this eminent authority on the Conciliation and Arbitration Act has not seen it before.

It is there now. How can honourable members opposite accuse the Minister for Labour (Mr Clyde Cameron) and this Government of attempting to reverse the onus when the Act already provides that the onus is on the defendant?

The Opposition's argument is just a lot of nonsense. In fact what the Opposition seeks to do is to remove from the Bill those sections which grant to the employer a defence in a prosecution against the abuses which it foresees. It anticipates an abuse of right. The Bill provides an answer to it, a safeguard against it. A former government granted it, and the Opposition seeks to take it out. I am afraid that the logic of its argument just falls by the wayside. If the Minister were irresponsible and if Government members were as irresponsible as members of the Opposition are, that part of the amendment would be accepted and we would see how their friends like that proposition.

The question of whether a matter is lawful or not is one which has actuated the attention of skilled people concerned with industrial relations, including commissioners, deputy presidents and presidents of the Commonwealth Conciliation and Arbitration Commission over a number of years. The arbitration reports of the Commonwealth and of the various States are full of judgments dealing with disputes about arguments concerning actions of employers and employees which were lawful but which were unreasonable, and the debate has often centred not on whether something was within the law but on whether it was reasonable for the order to have been given. For example, if we look at a number of awards and agreements we find that there is a great area where nothing is said, where the intent is left in some doubt, where there is no clear definition of the rights or responsibilities of either party.

There are many awards, for example, which have no limitation on overtime. There are awards which have no compulsion that overtime shall be worked. The question often arises: What is lawful? Is it lawful for the employer to require the overtime to be worked, or may the employee impose his own limitations? What is lawful is one thing; what is reasonable is another. I am afraid that this argument has gone down to a very petty, party political argument rather than a broad approach having been taken. I felt very confident when the honourable member for Wannon

Amendment negatived.

Clause agreed to.

Clauses 7 to 27 postponed.

Proposed new clause 27a.

Motion (by Mr Malcolm Fraser) agreed to.

That the following new clause be inserted in the Bill: "27a. After section 53 of the Principal Act the following section is inserted: - 54. (1) Where, in the opinion of a member of the Commission, a matter concerning the safety of employees or of other persons in or about a place of work arises in or in connexion with an industrial dispute, he may request the Secretary to the Department of Labour to arrange for an Inspector forthwith to investigate the matter and to report to him as soon as practicable, and the Secretary shall direct an Inspector accordingly.

(2)   The carrying out of an investigation in accordance with such a direction shall be deemed to be part of the duties of the Inspector under section 125.

(3)   The provisions of sub-sections (5), (6) and (7) of section 125 apply in relation to an investigation by an Inspector in accordance with this section.

(4)   A report of an Inspector under this section shall be considered by the member of the Commission where it is relevant to the performance of the powers and duties of the member under this Act and, unless there are special circumstances which in his opinion render it undesirable to do so, the member shall make the report public.'.".

Clauses 28 to 45 postponed.

Clause 46.

Section 110 of the Principal Act is amended by inserting in sub-section (2), after the words "made by", the words "the Secretary to the Department of Labour, an inspector or".

Amendment (by Mr Malcolm Fraser) agreed to:

Omit " 'the Secretary to the Department of Labour, and Inspector or' ", substitute " 'the Minister or' ".

Clause, as amended, agreed to.

Clauses 47 to 50 postponed.

Clause 51.

(1)   Section 119 of the Principal Act is amended by omitting from sub-sections (3) and (4) the words "twelve months" and substituting the words "six years".

(2)   Sub-sections (3) and (4) of section 119 of the Principal Act, as amended by this section, apply notwithstanding that, before the commencement of this section, the amount concerned had ceased to be recoverable in accordance with section 119 of the Principal Act, or the time for bringing proceedings under that section had expired, as the case may be, before the commencement of this section.

Amendment (by Mr Malcolm Fraser) agreed to:

Omit sub-clause (2), substitute the following subclauses: - "(2) The amendment made by this section to sub section (3) of section 119 of the Principal Act does not apply in relation to proceedings instituted before the date of commencement of this section, and the period referred to in that sub-section as so amended shall be deemed not to extend to any period of more than twelve months before the date of commencement of this section. "(3) The amendment made by this section to sub-section (4) of section 119 of the Principal Act does not apply in relation to breaches that occurred before the commencement of this section.'.

Clause, as amended, agreed to.

Clause 52 negatived.

Clause 53. 53. (1) Section 123 of the Principal Act is repealed and the following section substituted: 123. An employee entitled to the benefit of an award may, at any time within six years from any payment becoming due to him under the award, but not later, sue for the amount of the payment in the Court, or in any other court of competent jurisdiction.'.

(2)   The section inserted in the Principal Act by this section applies notwithstanding that the period of twelve months referred to in section 123 of the Principal Act had expired before the commencement of this section.

Amendment (by Mr Malcolm Fraser) agreed to:

Omit sub-section (2), substitute the following sub-section:

(2)   The period referred to in the section substituted by this section shall be deemed not to extend to any period of more than twelve months before the date of commencement of this section.'.

Clause, as amended, agreed to.

Clauses 54 to 74 postponed.

Proposed new clause 74a.

Motion (by Mr Malcolm Fraser) agreed to:

That the following new clause be inserted in the Bill: "74a. After section 169 of the principal Act the following sections are inserted: 169a. (1) A financial member of an organization may request the returning officer in respect of an election for an office of the organization or a branch of the organization or in respect of a ballot taken for the purpose of submitting a matter to a vote of the members of an organization or a branch of the organization to supply the member with information for the purpose of determining whether there has been an irregularity in or in connexion with the election or ballot.

(2)   The returning officer shall not unreasonably refuse or fail to supply information so requested.

Penalty: Five hundred dollars or imprisonment for six months, or both. 169b. Notwithstanding the rules of an organization, if two or more candidates are nominated for an election in respect of an office of an organization or branch of an organization and one of those candidates dies before the close of the ballot, the election shall be discontinued and a new election shall be held.'.".

Clause 75 postponed.

Clause 76 negatived.

Clauses 77 to 79 postponed.

Clause 80. 80. (1) After section 197 of the Principal Act the following section is inserted: - "197A. A party to-

(a)   a proceeding before the Commission or the Registrar; shall not be ordered to pay any costs incurred by any other party to that proceeding.".

Amendment (by Mr Malcolm Fraser) agreed to:

At the end of sub-clause (1) add the words 'except where the party against whom the order is made instituted the proceedings vexatiously or without reasonable cause'.

Clause, as amended, agreed to.

Clause 81 negatived.







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