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Thursday, 13 May 1965


Senator McKENNA (Tasmania) (Leader of the Opposition) . - Any bill dealing with the subject of conciliation and arbitration is an important bill. On this occasion, for two reasons I propose to address myself to the subject with unusual brevity. The first reason is that the Opposition is not opposing any of the provisions contained in the Bill. The second reason is that I am to be followed, I understand, by quite a number of my colleagues who are skilled in industrial matters and will adequately present the viewpoint of the Opposition.

The Bill before us deals with a variety of matters which are quite dissociated in many respects. I merely mention some of them. lt is proposed to facilitate joint sessions of the Commonwealth Conciliation and Arbitration Commission in relation to matters that are described as common to two or more divisions of the Commission. That is an improvement.


Senator Wright - What does the honorable senator mean by " joint sessions "?


Senator McKENNA - If two sections of the Commission are dealing with particular matters and a matter becomes common to both of those sittings, one hearing combining the two tribunals will deal with it. The Commission, as the Minister pointed out in his second reading speech, has followed this practice before being specifically authorised by the provision in this Bill to do so.

It is also worth mentioning that jurisdiction is now to be conferred upon the Commonwealth Industrial Court to review the taxation of costs and expenses in relation to matters that come before it. A new provision is included that the Court may award costs or expenses, but subject to the regulations. In other words, the hitherto wide power of the Court will be subject to limitations. The regulation making power is expanded to enable the regulations to deal with the subject of costs and expenses. The Minister has told us that those regulations will contain provisions which limit the appearances of counsel to junior counsel except in cases approved by the Court.


Senator Wright - The provision will not limit appearances; it restricts costs.


Senator McKENNA - That is so. The provision will operate to limit the costs connected with the appearances of junior counsel unless the Court certifies that it was proper for senior counsel to have been engaged.

There is a proposal to expand the number of inspectors. The intention is to authorise inspectors who are public servants in departments other than the Department of Labour and National Service to function as inspectors under the Act. An additional facility is provided so that those inspectors may proceed to recover amounts payable under awards within 12 months of the time the payments became due. The new provision extends the period from six months to 12 months. A further provision widens the power of the Attorney-General to pay costs and expenses in connection with proceedings related to irregularities in elections.

The central feature of the Bill is contained in the proposed new section 109a which is to be interpolated in the Principal Act. lt will act as a qualification upon section 109 and the contempt proceedings that follow from it pursuant to section 111. At present, for instance, under section 109 an organisation or person may apply for an injunction to restrain a union from striking. The applicant may obtain an injunction. The decision of the Government is embodied in the amending Bill after consultation with the employers federations and the Australian Council of Trade Unions. The intention is to provide a breathing space before the injunction proceedings are invoked. Under the new provision the Court is forbidden from commencing to hear such an application unless it is satisfied that the Commission has been notified that the breach or non-observance is likely to occur, and that the notification was given without delay or within such time as the Commission deems to be reasonable. Finally, a period of 14 days must elapse from the giving of the notification before the Court may proceed. The idea underlining all of that is to interpose a period for conciliation before invoking the very drastic provisions of section 109.

There is one qualification to what I have said. If an applicant for an injunction is able to satisfy the Court that a breach or non-observance of an award is likely to occur within the next 10 days, the waiting period of 14 days is by-passed. That provision, taken in conjuction with what is now proposed regarding the costs that may be awarded in respect of senior counsel, makes a concession to a viewpoint that has long been expressed by the trade union movement, namely, that too free use has been made of the provisions and too ready recourse has been had to the Court for injunctions, instead of treating that section as a place of last resort. That is one aspect upon which I agree with the statement made by the Minister in his second reading speech. The other one acknowledges a complaint that has been made now for many years, namely, that some employers were using the court process to place the greatest possible burden in costs upon the trade unions against which they were proceeding.

The fact that in both these respects the Government has gone part of the way to meet these objections, to recognise - if 1 put it at the lowest level - a valid base for the objections, is a matter upon which we can be a little happy. But, of course, the Opposition and the trade union movement are not approving sections 109 and 111 because they are approving the relatively small amelioration that is provided in this Bill. They are very responsibly saying: " Let us see these provisions in force. Let us see what brake they place upon undue recourse to section 109 and the invocation of heavy costs against unions." Very responsibly, they are suspending judgment until they see the working of these new provisions, but they are prepared to give them a reasonably fair trial.

The fact that the trade union movement and the Opposition in this Parliament concur in that does not indicate any approval of sections 109 or 111. We have always contended that those sections were unduly harsh and quite unnecessary in the context of conciliation and arbitration. Carrying an injunction to a breach thereof and invoking contempt proceedings under section 111, we reach a position at which unions and unionists may attract two types of penalty for breach of the injunction. First, they may suffer the normal penalty provided under the Act, or under the award if the penalty is ensconced there. Secondly, they encounter the unlimited jurisdiction of the Court to fine for contempt. In that way, they are subject to two types of penalty.

The history of the matter, including the introduction of sections 109 and 111, is rather interesting. In 1950 or 1951, in the case, R. v. Metal Trades Association, which is reported at 82 C.L.R., 208, the High Court of Australia held that the then Court of Conciliation and Arbitration did not have the power to fine registered organisations for contempt of court simply by virtue of the fact that it was a superior court of record. The High Court held that the Act gave the Arbitration Court specific powers to deal with breaches and non-observance of orders and awards and that the Court could not assume the common law right of a superior court of record re contempt of court in addition to those specific legislative provisions. In other words, whilst the constitution of the Court as a superior court of record gave it unlimited authority in contempt proceedings, the fact was that particular matters, including breaches of orders and awards or agreements under the Act, had attracted specific penalties at the instance of the legislature, and that specific provision was deemed to cut down the Court's otherwise wide power of action in relation to contempt.

Section 109 or its predecessor was born because of that decision. It was born to correct the position which was intended by the legislature, that there should be no contempt proceedings where specific penalties for particular acts had been provided. In 1951 we encountered what was the predecessor of section 109. That, of course, restored the position for which the employers had contended, that there should be dual penalties, that there should be the normal provision and penalty for breach of the conditions of an award, and if there was failure to obey an injunction in relation to such a matter there should be, in addition, a penalty for contempt.

The history of the matter is that whilst one cannot point to a vast number of unions being affected or a vast number of cases being heard per annum, the provisions nevertheless have had a significant and particularly heavy financial impact on quite a number of unions, mostly militant unions. The point that I want to emphasise here is that in one year, 1962, the amount of costs awarded against unions in respect of applications under section 109 exceeded even the heavy penalties that were inflicted on the unions. So one might say that there was a treble penalty, not merely the penalty for breach of an award pursuant to the ordinary provisions of the Act, but also a penalty for breach of the injunction and contempt, and then costs. This all added up to a burden produced by too free an invocation of section 109 that has provoked great hostility on the part of the trade union movement. The concessions, slight as they are, that are being made now are a belated recognition of the adverse effects of this type of legislation.

I want to make it quite clear that whilst we are not opposing the particular provisions - we are working in conjunction with the Australian Council of Trade Unions in relation to that matter - we are not to be deemed to give any kind of approval to the sections that they purport to break down. For that reason, I move -

That the following words be added to the motion that the Bill be now read a second time - " but the Senate is of opinion that the Government should immediately introduce legislation to repeal the injunction and contempt provisions of the Act in relation to awards."

Because all the publicity these days is in relation to injunction and contempt proceedings, the general impression is that they constitute the main penal or restrictive measures in the Conciliation and Arbitration Act. The impression is that they constitute the head and front of the sanctions which necessarily accompany the imposition of obligations and duties under any Act.

A year or two ago I had the privilege of working with officers of the A.C.T.U. in drawing up a complete list of what might be termed the penal provisions of the Conciliation and Arbitration Act. I have in my hand a copy of that document. It forms part of a paper distributed at the 1963 A.C.T.U. Congress. I am sure that it is readily available to any interested member of the public on application to the A.C.T.U. A number of honorable senators may be surprised to know that some 30 or more sections of the Act are devoted to the imposition of sanctions of various kinds. In addition, there are specific penal provisions in the regulations. They are imposed not for major matters but for relatively minor matters in about four occasions. I am now developing the theme that the provisions of which we complain - sections 109 and 111 of the existing Act - are completely unnecessary in the light of the many sanctions already imposed under the Act.

I refer to just two of them. I point out that under section 41 the Conciliation and Arbitration Commission has power to insert in awards provisions for penalties for breach or non-observance of awards. The maximum penalty may be £100 for an organisation and £10 for a member. Those are not light penalties. Under section 119 the courts of the land are empowered to inflict those penalties. They are quite substantial penalties. They may be applied for any breach of an award. They may be written into the awards themselves. They are enforceable in courts.

It seems to me that, having regard to the relatively limited number of cases in which section 109 is invoked, the Government has taken a sledgehammerto crack a nut in introducing into the arena of conciliation and arbitration the rigorous penal provisions of sections 109 and 111. In short, the Government's action has the effect, one might say, of making breaches of an award not merely a civil matter but a quasi-criminal matter - contempt of court. It introducesan element of legalism and criminality into an arena that should be left completely free of those things and which should be confined to consideration of matters of an industrial nature. I advance that argument to indicate that, in the view of the Opposition, whilst sanctions are necessary, sanctions of the type to which we object are completely foreign to the whole spirit of conciliation and arbitration and are not only unnecessary but also ineffective, because the number of applications under the sections to which we object has not receded down the years through the presence on the statute book of those sanctions. The cases have increased in number. It may be that the application of those sanctions is confined to relatively few unions, but the sanctions certainly have not been effective. The passage of time merely indicates that what we said at the outset is right - first that they were unnecessary and secondly that they would be ineffective in achieving the purposes at which they were aimed.

The other point I make is that although we have a wonderful system of conciliation and arbitration, which has been constantly under review and amendment by all governments, the ultimate objective is to make an award between conflicting parties not for a maximum payment but for a minimum payment. Thereafter the parties are free to negotiate for any additional amount, either under the jurisdiction of the Commission or a conciliation commissioner or just between themselves without any intervention from the Commission. That type of thing is particularly contemplated by section 31 of the principal Act, which provides -

31.   - (1.) If an agreement between all or any of the parties as to an industrial dispute is arrived at, a memorandum of its terms shall be made in writing.

That agreement may be filed with the Commission and if it is certified by the Commission it has the same effect as an award made under the Act invoking all the safeguards and protections of the Act and enforceable in the same way as an award could be enforced under the Act. So quite clearly this Act has in mind the matter of discussions and agreements between the conflicting parties to an award for changes inthe award. Sub-section (3.) of section 31 provides -

The Commission may refuse to certify such a memorandum if it is of opinion that -

(a)   the agreement is not in settlement of an industrial dispute;

(b)   the agreement contains provisions which the Commission has no power to insert inan award; or

(c)   it is not in the public interest that the agreement should be certified.

Under section 33 the powers of the Commission to certify an agreement relating to the standard hours of work in an industry, the basic wage for adult males, the provision of long service leave or the determination or alteration of the basic wage for adult females are exercisable by the Commission in presidential session only. So the Act as it now stands contemplates that discussions, agreements and negotiations culminating in an agreement in writing, if certified by the Commission, may have the effect of an award made under the Act. i have not considered this matter before, but 1 would assume that if such an agreement effected between the parties is not certified by the Commission it would not cease to be effective as between the parties. In other words, whatever normal civil processes of the law are available to the parties could be invoked to enforce the agreement. I think many cases of that may be found.In negotiations for better accommodation for employees than is available under an award inevitably there is conflict and inevitably heavy pressure will be exercised on behalf of the employees. Sooner or later one may encounter the threat of strike to enforce the demand. While on the subject of strikes, since these penal provisions were introduced into the Act it has become the practice in many cases for commissioners and for the Commission itself to write into awards clauses banning strikes. That is the origin of the jurisdiction that led to section 109. Nearly all the proceedings seek either an injuction to restrain employee organisations from proceeding with a threatened strike or a mandamus to compel them to abandon a strike that is under way.

The real trouble originated, first in the concept of the Government to close the gap, as it saw it, that was created by the decision in the Metal Trades case in 1950, and secondly, in the question of bans on strikes. If there were no such bans written into the agreements there would be very few applications for injunctions under section 109. I would say that the Commission and the conciliation personnel attached to. the Commission should be very chary of writing into awards provisions banning strikes. As Senator Murphy said in relation to another matter today, when laws, awards and orders of tribunals are unjust and are not acceptable to the minds of men they will not take any notice of them. They commit breaches and then injunctions and contempt proceedings follow which involve dual penalties and heavy costs.


Senator Wright - That is an absurd proposition when stated absolutely like that.


Senator McKENNA -I am not putting it in any narrow sense. [ ask the honorable senator to withhold his judgment until I conclude what I am about to say. I am not saying that the right to strike is unlimited. I say that it should be exercised in a most responsible manner, having regard not merely to the interests and the purpose of the employees, but also to the interests of the community generally. In that respect the Australian Council of Trade Unions is playing a very substantial part in community service in itself outlawing strikes that are not approved by it. No trade unionist will ever agree that a strike is in no circumstances to take place.

I can do no better than to express the very colourful terms which were used by the late Mr. Clarey when he was a member of this Parliament. He was a former president of the A.C.T.U. He said that the right to strike was the thing that differentiated the free man from the slave. That is completely true. No trade unionist will ever surrender that right. Relatively very few of them invoke it, as was shown by the statistics quoted by the Minister. The great bulk of them act responsibly. The A.C.T.U. uses its great influence to see that strikes that concern the trade union movement are kept within reasonable proportions. It concerns itself with truly industrial matters and it does not go outside that field. 1 am not suggesting, as might have appeared from my first sentence, that there should be an unlimited right to strike - I am speaking of a moral right to strike - on any issue that occurs to a trade unionist. We do not contend that at all. I do not want to say any more on the matter. 1 have done no more than to point out briefly that our support of the Bill - in particular, our lack of opposition to clause 6 - does not indicate that we are in any way in agreement with section 109, which clause 6 seeks to ameliorate. I conclude by indicating again to the Senate that we will not oppose the measure that is before us.







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