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Tuesday, 22 February 1977
Page: 302


Mr WILLIS (Gellibrand) -This is a curious debate in that we are debating a Bill which will wither on the vine and come back in a new form in the new Parliament.


Mr Howard -It will not be all that different.


Mr WILLIS -I hope that it will be very different in one respect. If it is not, the Minister will be in terrible trouble. The Bill before the House is entitled the Trade Practices Amendment Bill but that is an incorrect description of the Bill in my view. There should have been included in the title some reference at least to the fact that it contains a clause which will, if passed into law, bring about a fundamental change in our industrial law. Indeed it will have the effect of totally disrupting and rendering unworkable the system of industrial relations that has been established in this country throughout this century. It is, in fact, the most repressive piece of industrial legislation ever brought before the Parliament. That the clause is contained in a Bill described as a Trade Practices Amendment Bill should not be allowed to disguise that fact.

The key clause of this Bill which introduces this horrendous provision is proposed new section 45D, as the honourable member for Burke (Mr Keith Johnson) said. Proposed new section 4SD is described in the marginal note as dealing with 'Boycotts by employees'. In fact that description of the proposed section is completely misleading. Nowhere in the proposed section is the term 'boycott' mentioned. In fact the implications go far beyond the matter of union boycotts, whether they be secondary boycotts or any other form of boycott. As I understand it a boycott in its primary sense means an endeavour to dissuade members of the public or commercial entrepreneurs from entering into trade relations with the offending employer, whilst the Swanson Committee referred to 'secondary boycotts' as a situation 'where employees of one employer place a boycott upon the dealings of that person with another person'. But whatever definition of 'boycott' is adopted the fact remains that proposed section 45D ranges far beyond the narrow limits of these definitions and therefore the description of that clause in the margin in the Bill is thoroughly misleading. So, too, is the explanatory memorandum issued by the Minister for Business and Consumer Affairs (Mr Howard). It says of proposed section 45D:

New section 45d prohibits boycotts -

I emphasise ' boycotts '- . . . by employees which have the purpose of hindering or preventing the supply of goods or services by the employer to a corporation if that action would have substantial adverse effects on the business of the corporation whose supplies are curtailed.

In fact proposed section 4SD does not mention boycotts. As I said it goes far beyond the boycotts, and would have the effect of prohibiting most industrial action by way of strikes, goslows, black bans, picketing and so on in a wide range of industries totally regardless of the purpose for which such action was taken. If one reads proposed section 45d- I doubt that honourable members opposite have done so- one sees that nowhere does it mention boycotts. It states:

An employee of a person . . . shall not engage in conduct in concert with another person or other persons ... for the purpose of hindering or preventing the supply of goods or services by the employer to a corporation if the hindering or preventing of the supply of those goods or services by the employer to the corporation would, or would be likely to, have a substantial adverse effect on the business of the corporation.

As I understand it, that means that any action of a group of employees acting in concert which had the effect of hindering or preventing the supply of goods to a corporation would bring it in contravention of proposed section 45D. That goes way beyond the kind of action to which the Swanson Committee referred. It goes far beyond the actions of the petrol tanker drivers in New South Wales. It covers a vast spectrum of union activity. It covers a vast spectrum of industry in this country. I ask honourable members to consider what this proposed section states. It says that any time any group of employees act in concert in support of, say, a wage claim -


Mr Howard - It does not say that.


Mr WILLIS - It does not say 'wage claim' but the reasons are irrelevant. The reasons are not mentioned in section 45D.


Mr Shipton - It says: ' . . . substantial adverse effect on the business of the corporation'.


Mr WILLIS -Right. So, if the result of the action for whatever reason, is the hindering or the preventing of the supply of goods or services to a corporation the effect is a contravention of the Act under proposed section 45D.


Mr Howard - It is the purpose of the conduct that is relevant, not the effect. It is the purpose of the conduct which is the dominant consideration. If you read the proposed new section carefully, you will discover that.


Mr WILLIS - I have read very carefully the proposed new section. It states 'for the purpose of hindering or preventing the supply of goods or services'. The purpose in any industrial dispute -


Mr Howard - Keep reading the proposed new section.


Mr WILLIS -Obviously you know nothing about industrial relations. In any industrial dispute employees take strike action or other action for the purpose of hindering or preventing the supply of goods or services to a corporation, for another purpose, which is to support their wage claim. They intend to hinder or prevent the supply of goods or services to a corporation. That is the intent of their action in 95 per cent of industrial disputes. The employees take action. If it does not have the effect of preventing or hindering the supply of goods or services to a corporation or to somebody else, it does not have any effect. They are not putting on any pressure.


Mr Howard - But do they-


Mr WILLIS - You will get your chance later. The whole point is that they need to put on pressure. To put on pressure they need to prevent or hinder the supply of goods or services. That must mean that in most industrial disputes employees will be found to be in breach of proposed new section 45d. If the Minister cannot understand that, I think there is something wrong with him. It is quite clear to me and to my legal advisers. I have had this matter looked at by people whose legal qualifications, I think, far exceed the Ministers. Their interpretation is the one I am giving him now. All I can say is that in our view the proposed new section is industrial dynamite. It goes far beyond boycotts. It provides that any action by employees which has the effect of hindering or preventing the supply of goods or services -


Mr Howard - It says 'for the purpose of.


Mr WILLIS - Yes, it can be 'for the purpose of. The purpose of doing it is to get another result, which is an industrial aim. Nothing in this Act qualifies that.

Proposed new section 51 sub-section (2) was mentioned by the honourable member for Parramatta (Mr Ruddock). He obviously had no idea what he was talking about. If one looks at that sub-section one sees that it specifically exempts the proposed new section 45D. Therefore it is of no relevance to a consideration of section 45D. We can forget proposed new section 5 1 sub-section (2) (a) in terms of looking at proposed new section 45D. We regard the proposed new section 45D as of tremendous importance. It is not a trade practices item, as we see it. It is one of the most revolutionary and venomous introductions to the area of industrial law that any government has contemplated in the history of this country. Let me describe to the Parliament the effect of proposed new section 45d on employees engaging in ordinary industrial action in this country. The proposed new section is included in Part IV of the proposed

Act. Part VI of the Act prescribes certain penalties for a contravention of a provision of Part IV. The penalties that could be imposed upon employees indulging in ordinary industrial activity could be enormous. Under section 76, Part VI of the Act, a person who has contravened Part IV, which will now include the proposed new section 45D, may be fined $50,000. That is just the start.

Furthermore, under section 82, a person who has contravened a provision of Part IV may be sued for loss or damage by the corporation that has been affected by the hindering or prevention of the supply of goods. Thus employees who go on strike in support of a wage rise, for instance, and who, by so doing, hinder or prevent the supply of goods or services to a corporation may be fined $50,000 and sued for damages by the affected corporation. So there is not just a fine of $50,000; there is also the liability to be sued for damages by the affected corporation. But that is not all. The employees may also be subject, under section 80, to injunction proceedings. The Minister for Business and Consumer Affairs, the Trade Practices Commission or any other person in the country has the right, under this Bill, to seek an injunction from the Federal court restraining a person from engaging in action that contravenes proposed new section 45D, that is, engaging in action such as strikes or other activities which prevent or hinder the supply of goods or services. The Government could get an injunction at any time it liked and so prevent all industrial activity. That right would be limited to this extent: The action would have to be preventing or hindering the supply of goods or services to a corporation because the whole new section is based on the corporation power.

Obviously some employees are not affected. An obvious example would be school teachers. Certainly, if we consider the kind of ramifications that this action would have, the transport industry would be affected. Railways, airports, road haulage, shipping and all forms of transportation would be affected. Telecommunications, banking, employees in fuel and power industries such as gas, coal, electricity and petroleum would be affected. Certainly employees making component parts would be affected. I think even employees making finished products would be affected because their goods or services go to retail corporations. So the proposed new section will affect the vast majority of employees in this country. It is not confined to a few.


Mr Neil - Hear, hear!


Mr WILLIS -The honourable member for St George is singing out 'Hear, hear'. I suppose he thinks: 'This is great stuff. Let's stick the boot into them. It is really beaut. He will have another think coming later on if the Government goes on with this sort of legislation. This is incredibly hard and extensive legislation of which I think some Government members are only just starting to appreciate the ramifications. Obviously some members, such as the honourable member for St George, think it is tremendous and wish that it were even tougher.

If an injunction is sought and granted and the employee does not abide by it, the court has the power to impose fines or gaol sentences, as it sees fit. There are 3 penalties-a $50,000 fine, action for damage by the affected corporation and provision for an injunction to prevent the action being continued. If that injunction is breached, fines and gaoling, as the court sees fit, are provided. Thus quite an horrific array of penalties can be used against employees indulging in normal industrial dispute activity. It does not end there. Under section 76 it seems that individual employees could be penalised even if industrial action did not eventuate. If there were no industrial action, no prevention or hindering of the supply of goods or services, they could still be fined under section 76 in the way that I have described. This comes about because proposed section 76 states that where a person has attempted to contravene a provision of Part IV; or has aided or abetted or counselled or procured a person to contravene such a provision; or has induced or attempted to induce a person to contravene such a provision; or has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or conspires with others to contravene such a provision- in all those cases he is liable to a $50,000 fine. Even if the employees did not undertake any industrial action but merely discussed the possibility of indulging in such action, they could be in contravention of a provision of Pan IV and could be faced with penalties under section 76. They could also be faced with injunction proceedings to stop them considering the possibility of such action in future.

This is extremely strong stuff. This is not some incidental change to a trade practices Bill. This is the heart and soul of industrial legislation in this country. I do not think some members opposite really understand what they are throwing into the ring. All of this is in relation to individual employees, but the legislation goes further than that. It could be that penalties would apply specifically to trade unions as well as to employees. Under proposed section 76, a union with which an employee acted in concert to prevent or hinder the supply of goods or services to a corporation would be liable, by virtue of the aiding and abetting provisions of section 76 to which I have just referred. This assumes that a union would be regarded as a person under the Act. My understanding is that that almost certainly would be the case, regardless of whether the union was a federally registered union, a State registered union or an unregistered union. Thus unions whose members engaged in action which contravened proposed new section 45D would be liable, under section 76, to a fine of up to $250,000 plus injunction proceedings, plus action for loss or damage by the affected corporation.

The ramifications of this Bill are enormous. It clearly introduces in the guise of a trade practices Bill the most repressive industrial laws ever put before this Parliament. Yet a Press statement issued by the Minister last Thursday stated -


Mr Howard - I am glad that you read them.


Mr WILLIS - I do. I keep quite a good eye on them. It said:

He said that the effect of the amendments would be to subject both companies and trade unions which engaged in a particular form of anti-competitive conduct to the same rules.

The Minister said that the new amendment would in no way interfere with or restrict legitimate union activities.

What a ludicrous and ridiculous statement.

Quite clearly from what I have put to the House it is absurd for the Minister to claim that the amendments would in no way interfere with or restrict legitimate union activities. As I have already shown, the legislation goes far beyond boycotts. I have shown that it goes to ordinary industrial activity and that it would apply to the vast majority of employees. I have shown that enormous penalties would apply. Yet the Minister says that it would not interfere with legitimate union activity. Perhaps it gets down to the definition of what is legitimate union activity, in which case I can only say that the Minister must have a remarkably narrow view of what comes within that definition.

I have said that the action being taken in this Bill goes far beyond that recommended by the Swanson Committee, which confined its considerations to the matter of secondary boycotts. I do not think that in the time available I need pursue that point. It is fairly self-evident. It is quite clear that the Government in introducing proposed new section 45 D has gone miles beyond the secondary boycott limits that the Swanson Committee was talking about.

Such laws as are being introduced here are totally inappropriate to a rational industrial relations system. The whole concept of introducing this statutory civil liability is a revolutionary change in the whole system. In Australia we have had applying alongside the arbitration law a system of industrial tons inherited from English common law. Those industrial tons have been rarely used. Although they have been used in a number of instances in the last half dozen years, I suppose we can say that their use has been rare. What we have in this Bill is the introduction of statutory civil liability for industrial disputes in a way that has never been applied in this country or any other country. In England where the industrial torts operated they affected unions up until 1906 when the English Government saw fit to legislate to prevent such common law applying to unions. The Trade Disputes Act 1906 has applied ever since and was strengthened in the mid 1970s to ensure that industrial torts do not apply to unions.

In this country such law has never been passed except in Queensland. It has never been passed federally or in any other State. But the Federal Government is now in effect legislating to enable the torts to be put into the statutes. This is a remarkable change. It is a remarkable advance or regression in the law, depending on the way one sees it. I personally see it as a remarkable and amazing backward step, one which will plunge this country into the possibility of industrial chaos. It makes one wonder why this Government is taking this action. Perhaps it is true that the Government does not know what it is doing, in which case it is made up of fools. The alternative is that the Government is composed of knaves because it is indulging in action which will bring about in this country an industrial confrontation which simply must occur if the unions are to preserve their rights to act collectively and to take any form of industrial action.

It could also be a demonstration of anti-union phobia for which the Government is well known. It could also be that pan of the Government's logic is that this legislation will be thrown in as part of the array of measures that it will use against unions in the post-wage indexation era which its wages policy will bring about. But whatever the reasons, this is most vicious legislation which we will oppose absolutely and totally.







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