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Tuesday, 10 November 1964


Senator MURPHY (New South Wales) . - The Opposition opposes this Bill because of its fundamental objection to the jurisdiction exercised by the Commonwealth Industrial Court through its contempt powers in relation to what are described as the bans clauses of awards. The case against the Bill has been well made out by Senator Cohen. He dealt, not only with that fundamental objection and the grounds and reasons which support it, but also with other considerations such as the miscellaneous and unnecessary jurisdiction which' from time to time is exercised by the Court in matters falling outside what might be described as its true industrial functions. To meet this objection, a number of observations have been addressed to the Senate by Senator Wright. In those observations the honorable senator suggested that the advocacy by Senator Cohen was calculated to undermine the Commonwealth Industrial Court. He suggested also that the trouble in the industrial field was due to grave want of leadership on the part of labour. The honorable senator suggested that trouble in relation to convictions for contempt could be cured if only applications were made for adjournment so that the parties might conciliate. Senator Wright said in that connection that the experience of the Court had been that no such applications had been made.

It is apparent that the speech of the honorable senator from Tasmania was characterised by prejudice and ignorance and by lack of insight. So far as ignorance is concerned - and I do not say this in any persona] way to deprecate him - the plain position is that he is quite in error as to the practice of the Court. The experience of the Court is quite the opposite to that stated by the honorable senator. Applications are frequently made for adjournments so that the parities may conciliate. This has been done prior to some injunction being made and also prior to some order for actual contempt. The parties frequently confer in an endeavour to solve matters in dispute. This may not be strictly in accordance with the judicial role of the Court but it is something that ought to be done and is done. That is the common experience of all who are acquainted with the practice of this Court. Senator Wright also observed that there had been bad leadership on the part of labour. He said that the men voted under bud leadership and bad guidance and added -

That illustrates the grave want of leadership among employee organisations when they tend to go on [side arbitration and resort to the old outmoded methods of industrial dislocation.

For many years, running into centuries now, that has been the complaint by those who arc opposed to labour. It has been said that the mcn are all right and that they arc innocent. It has been said that these workers in the fields and factories would not bc troublesome if it were not for the agitators who led them astray. The opponents of labour say: " It is the agitators who are bad. If only the workers were left to their own devices, all would be well ". What Senator Wright has said in this debate was never more eloquently expressed than it was by the president of the Philadelphia and Reading railway in 1902, Mr. Baer, who said -

The rights and interests of the labouring man will be protected and cared for not by labour agitators but by the Christian men to whom God in his infinite wisdom has given the control of the properly interests of the country.

Again and again this theme intrudes itself into debates on industrial matters. It is said that the men are all right, but their leaders are the villains of the piece. It is said that if only these agitators were removed, all would be well. We say in reply that this is nonsense. Through the ages there has been advancement by labour because of the strength and courage and leadership of those who have emerged at the top of the Labour movement. They have demanded a fairer share of the national wealth. They want a larger participation in increased productivity. They want a fairer distribution of the benefits flowing from the genius of men of science. They will seek by whatever means are open to them to get justice for those whom they lead. No matter what the difficulties or setbacks, they will pursue those objectives. They should not be made the villains of the piece and even if they are they will strive for justice.


Senator Wright - Is the Australian Council of Trade Unions proud of its leadership in the General Motors-Holden's strike recently?


Senator MURPHY - The A.C.T.U. is proud of its leaders whether battles are won or lost. The Labour movement is proud of its leaders. Mistakes will be made, but the men and their leaders know that what they are striving for is right and that is a fairer division of the wealth of the community. They have a sense of injustice that some men working in factories and elsewhere are getting a much smaller share of productivity than they merit.


Senator Wright - There is no question as to that. It is the method of getting a share that is in question.


Senator MURPHY - Senator Wright has said, in effect, that the workers should stand by the awards that are made by the Conciliation and Arbitration Commission.


Senator Morris - Of course, they should.


Senator MURPHY - That is really the crux of the matter.


Senator Morris - It has not been said. It would have been said.


Senator MURPHY - It has been said by Senator Wright, and it will be said by Senator Morris. What I have stated is really the crux of the matter. It is like the moment of truth. The question is: Should the workers stand by these awards of the Commonwealth Conciliation and Arbitration Commission? The honorable senator from Queensland says: "Yes". So this is the hub of the problem.

Let us consider, first of all, how these awards are made. They are not made by collective bargaining. They are not made by the men or their unions saying: " We agree to have these terms and conditions to cover our work for the next three years".


Senator Morris - Hundreds of them are.


Senator MURPHY - In regard to those which are industrial agreements and which are so made, one can visualise that there is a proper approach on the basis that if an agreement is entered into voluntarily, and lt circumstances remain the same, the agreement ought to be observed. Anyone can understand such an argument. But, leaving those industrial agreements aside, turn to the subject of awards which are not entered into voluntarily but are imposed by the Commission. This is the important matter. Those awards declare the minimum wage to be paid. They do not declare the maximum wage to bc paid. They leave an area for private arrangements between employers and employees. This position has been stated in the clearest terms by the Commonwealth Conciliation and Arbitration Commission in 1964.

What does this mean? It means that some awards are made to provide for minimum wages. Everyone understands that some employees concerned will be paid amounts above those awards. Some of them may not be paid over the award but others certainly are. So it is quite conceivable and quite in accord with the industrial system that persons will be paid £3 or £4 above the award rate. Then, when persons who have been paid wages above the award seek to improve their conditions, which is a situation contemplated by the Conciliation and Arbitration Commission, what is the position in which they find themselves? The moment they seek to use the only weapon that is available to them, the employers race into the Commonwealth Industrial Court and say that the employees are not working in accordance with their award. In many cases, the employees have never worked at the wage rates prescribed by their awards. One of the significant aspects of the whole matter is that throughout the industrial community a great part of the work force is being paid above award wages. What happens when the employees seek to alter their wage rates which are already above the award conditions? All the employers have to hand an automatic weapon provided by the Conciliation and Arbitration Act and are enabled thereby to go to the Court and say: " We seek an injunction to make these workers adhere to the conditions of their award ". If there is failure to observe that injunction there is an automatic imposition of penalties, so it seems to unions, for contempt of court.

It is not only the Australian Labour Party which puts forward this view. Responsible leaders of trade unions also say that the existence of bans clauses in awards, and the existence of provisions in the Act which permit injunctions and the imposition of penalties for contempt of court are militating against conciliation and arbitration. Trade union leaders have said so in the clearest terms in recent times, In recent weeks, this opinion has been expressed by Mr. Heffernan, the General Secretary of the Sheet Metal Working, Agricultural Implement and Stovemaking Industrial Union, Mr. Heagney of the Federated Ironworkers Association, Mr. Manser of the Federated Miscellaneous Workers Union and Mr. Hutson of the Amalgamated Engineering Union. This is the true position. The opinion has been expressed by those persons. The same kind of view has been voiced by members of the Commonwealth Conciliation and Arbitration Commission. The late Mr. Justice Foster himself expressed a similar view on the operation of the Act. He said in effect that the existence of bans clauses in awards, in conjunction with penal provisions of the Act. was taking matters out of the control of the Commission. In a case which is reported in Volume 87, Commonwealth Arbitration Reports, at page 932, Mr. Justice Foster said -

I have again and again expressed my reluctance to put 'bans' clauses in awards, even under the old law. The essence of conciliation and arbitration is goodwill; ' bans ' clauses are antithesis; not only do they jeopardise good relations but (hey impede my work as an arbitrator. The present separation of the judicial from the arbitral function makes me, if possible, more reluctant than ever to concede to the applicant's plea for this variation. I. as the arbitrator, have now lost control of the consequences which follow the insertion of ' bans' clauses.


Senator Wright - What is the dale of that judgment?


Senator MURPHY - That judgment was delivered in 1957 after the separation of the Court from the Commission, which was effected by the Act of 1956. So this array of opinion, which is closely connected with the industrial movement of this country, is unanimous that the existence of these penal provisions militates against the achievement of the objects of the Act, which are to create goodwill in industry, induce conciliation, and provide, in the event of failure of conciliation, for effective arbitration. The purposes of arbitration are not served if, when a dispute arises, one of the parties to that dispute goes to the Court to ask it to enforce penal powers which are directed to deal, not with the dispute itself, but merely with the consequences of the dispute.

This distinction is of the utmost importance. It has been pointed out by the highest authority that a dispute is a disagreement between people. The consequences of the dispute may be some strike, some dislocation, or some ban. But that is not the dispute itself. Here we have a situation in industry where disputes, when they arise, are not dealt with directly by the arbitral authority. Instead, a dispute is transferred into the sphere where penal powers are invoked against the consequences of the dispute and in such a way as to lead to the most grave resentment on the part of unions. It is all very well for Senator Wright to say that a fine of £500 amounts to a payment of 6d. by each member of a union. The fine may be £500 a day. But it may be £500 a day in relation to a number of different disputes occurring under the same award. All sorts of refinements have been sought in order to multiply the ways in which unions may be penalised under these provisions of the Act. They all lead to resentment and not to goodwill. They do not lead to conciliation and are not conducive to fair arbitration.


Senator Wright - The honorable senator's idea is that they should abide by the award if it pleases them.


Senator MURPHY - This kind of nineteenth century thinking that is again advanced by the honorable senator illustrates the poverty of the thought that has emanated, not from the Minister in charge of the Bill, but, unfortunately, from those honorable senators opposite who so far have participated in the debate. I trust that it will not continue. These matters are of too great importance to be dealt with by what might be described as smart phrases.

We are dealing with a situation in which large bodies of men are concerned with thenwages and conditions, and the amount of money that is available for themselves, their families and the education of their children. They are at the bottom of the economic scale. They comprise the only section of the community that is subjected to civil conscription. I have no doubt that if Senator Wright were asked whether he approved of the provisions in the Constitu tion which protect the medical profession against civil conscription he would say that he did. I would say the same. I would approve of those provisions being made applicable to the workers in this community. I repeat that the workers comprise the only section of the community that is subjected to civil conscription. It is they who are required willy-nilly to work. There is no escape from the fact that that is what the penal clauses mean in the ultimate. Civil conscription does exist, and the means of enforcement are the penal clauses of the various enactments.


Senator Wright - Who was it said that the time had come when people could not choose whether they would live within sight of the town hall clock? That was said by a great Labour leader.


Senator MURPHY - It is all very well for the honorable senator from Tasmania to jest. The workers are faced with a situation in which awards are made. At the time they are made those awards may appear to be reasonable assessments of the needs of the workers and proper assessments of work value, and perhaps they do justice as the Conciliation and Arbitration Commission sees it. But we are living in a condition of inflation, in which wages which are just rapidly become unjust. The trade unions and their members concede that, where work is done under an award, then the award ought to be enforced against both the employers and the employees and that if it is broken penalties ought to follow. But it is a different matter when there is a requirement to work under certain terms and conditions in the future. In a free country men ought to be entitled to say whether they will work under those conditions. If they voluntarily agree to work for a certain time under certain conditions and for certain. wages, that is all right. It could be argued that, if the circumstances remain the same, they ought to work under the same conditions. But if men have not agreed to do so voluntarily or if the circumstances change, then as free men they ought to be entitled to say whether they are prepared so to work. The men say that, if the circumstances are serious enough, they ought to be entitled to decline to work under terms and conditions which are imposed upon them.


Senator Ormonde - That is the sign of a free man.


Senator MURPHY - As Senator Ormonde has observed, that is the sign of a free man. Ultimately it is the right to strike which distinguishes a free man from a slave. The Australian Labour Party will never retreat from that position. We do not encourage strikes, because we know exactly how much hardship is suffered by a working man and his family when a strike occurs. Recently Senator Wright jested about the strike, at the works of General MotorsHolden's Pty. Ltd. and made certain remarks about union leadership. The leaders of the Australian Labour movement are fully aware of the hardship that is suffered by the workers when a strike occurs. Every time there is a strike the hands of the leaders of the trade unions are tied. I repeat that they know quite well what a strike means to their members and to their organisations. They are extremely reluctant to enter upon a strike or to continue a strike if through conciliation they can avoid doing so. A strike is embarked upon or is continued only when union leaders conceive that justice is on their side. We say that there ought not to exist in this community a set of provisions which enables the great weight of the law to be brought down immediately on the side of those who are in the stronger economic position and against those who are in the weaker economic position, because the system of awards envisages that men are entitled to bargain for more than an award allows.

Senator Wrightsaid that the advocacy, of Senator Cohen was calculated to undermine the position of the Commonwealth Industrial Court. Senator Cohen would* not seek to undermine the position of the Court, nor would I or the Australian Labour Party as a whole. We say that nothing is more calculated to undermine the position of the Court and the whole judicial system of this country than the existence of legislative provisions which make it inevitable that the Court will be constantly brought into contempt. Nothing is more certain than this: If the trade unions and the Labour movement believe that men must go on strike to achieve justice, then they will go on strike. If possible they will exhaust every other means to settle a dispute and to achieve justice; but if bans or limitations or strikes are necessary, then the trade unions will not be deterred from employing whatever methods are necessary to achieve justice. Any system which makes it inevitable that the trade unions will become in contempt means that ultimately the prestige, stature and standing of the Court will be diminished. We contend that these provisions were aimed at relying upon the well known prestige of the Australian courts and their well known detachment from political parties.

The Australian Labour Party said at the time of the introduction of the penal provisions that they were ill-designed and prophesied that the Commonwealth Industrial Court inevitably would be brought into contempt. No one in the Labour Party is pleased to see that it has become common in processions on Labour Day and on other occasions for judges of the Commonwealth Industrial Court to be portrayed as being against the Labour movement of this country. Our courts should never be placed in that situation. There are other means whereby the objects of the Conciliation and Arbitration Act may be achieved. It is our contention that the Act is bad in this respect. Because of its provisions, the Commonwealth Industrial Court is used as an engine which may be put into motion by the employers, who are all too ready to invoke the penal provisions of the Act to assist them in handling disputes in a manner which is improper, in that disputes ought to be dealt with by negotiation or conciliation, or ultimately by the arbitral authorities away from the atmosphere of the Commonwealth Industrial Court and its penal powers.

This Bill is designed to facilitate the use of the penal provisions of the Conciliation and Arbitration Act. For that reason the Opposition is fundamentally opposed to the Bill and we desire to record our most emphatic protest against the continuation and expansion of the invocation of the present contempt provisions of the Act.







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