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Thursday, 13 May 1965


Senator CANT (Western Australia) . - Senator Wright began his address by referring to the backward thinking of the Australian Labour Party when it asserted the right to strike. The trade union movement will not surrender the right to strike or the right to bargain for something better than the tribunals provide. I think it would have been more appropriate if Senator Wright had referred to the Government's action in continuing to impose penalties that have been ineffective over a period of 60 years, while still thinking in the dim days of the turn of the century. Summing up what Senator Wright had to say, honorable senators will see that it is a plea for a continuance of the sanctions despite the fact that they have been completely ineffective. The honorable senator went on to say that the trade union movement had gained enormous advantage under the industrial law. I think it is without question that some advantage has flowed to the trade union movement since the enactment of the law, because the law of the jungle applied prior to that.

I think it is worth mentioning that the enormous advantages that are referred to would not have been gained without the supplementary right to strike. This is a provision that the industrial workers have had to use to bring pressure upon the employers to accede to their just demands. Whilst there have been advantages gained from the industrial law, there have also been large advantages gained from the right to strike. Senator Wright went on to be critical of the Bill as it reduces the authority of the Commonwealth Conciliation and Arbitration Commission to impose the provisions of section 119 and section 111 on an application. The honorable senator mentioned that the Court's hands were tied in preventing the continuance of a breach of an award. This interpretation is evidence that he has completely misread the Bill. If a breach of an award has been committed, the provisions of proposed new section I 09a do not operate. The provisions operate only if the threat of stoppage is made.

I am not satisfied that this Bill will perform the act that the Minister for Labour and National Service (Mr. McMahon) is of the opinion it will perform. But this Bill arises from some discussions between the Minister, the Australian Council of Trade Unions and employers' organisations. The Bill was foreshadowed last November. I think it is interesting to note a couple of passages in a statement presented by the Minister for Labour and National Service to another place on that occasion to show that he did not understand the legislation with which he was dealing at the time. At page 2789 of "Hansard" of 11th November 1964, the statement of the Minister is reported as follows -

This is particularly so in a community where there is highly developed machinery for the determination of wages and conditions of employment and where the unions use that system to secure the maximum benefits for their members.

The reason I say that the Minister does not understand the legislation is that it is well known in Australian industrial regulation that the prescriptions of the courts when dealing with these matters do not at any time provide the maximum benefits for members. The awards, agreements and orders that flow from the Commission prescribe the minimum rates of pay and the conditions under which workers shall be employed. The Minister, having arrived at this conclusion, misdirected himself in respect of the whole of the rest of his arguments regarding the legislation that is brought down from time to time. I believe the result of this is that the Minister has not brought before the Senate anything that will be of great assistance to either the Australian Council of Trade Unions or the employer organisations. I hope to be able, as I proceed, to show that this will be the case.

The history of the arbitration system shows that it is the Commonwealth Conciliation and Arbitration Commission which prescribes minimum rates of pay. At no time was it intended that the arbitration system should impose repression upon the working people. It imposed on employers responsibility to pay minimum rates of pay and left the field wide open for workers to negotiate for something over and above the minimums prescribed by awards or agreements. Of course this immediately brings in the right of a union to use its industrial strength to gain the advantages that it thinks its members are entitled to. In his statement on 11th November 1964 the Minister for Labour and National Service (Mr. McMahon) said -

The Government therefore proposes to introduce, in the next session, legislation which will provide, in clearly defined cases, where there is a threatened breach of an award, a 14 days cooling-off period before the sanctions provisions can be used.

Later in his speech the Minister said -

I mentioned a moment ago that our proposals concerned threatened breaches. There will be no change in the law when advantage is not taken of our legislation and a union resorts to strike action to force concessions.

I think that if Senator Wright had read that passage before he spoke he would have understood a little more of what the Bill purports to do. The "Year Book", No. 50 of 1964, sets out at page 502 the causes of industrial disputes for the years 1959 to 1963. In 1959 wages, hours and leave caused 105 disputes. In 1960 the figure was 213, in 1961, 123, in 1962, 290 and in 1963, 279. Physical working conditions and managerial policy caused dis putes numbering 556, out of a total of 869 in 1959; in 1960, 648 out of a total of 1,145; in 1961, 525 out of 815; in 1962, 707 out of 1,183 and in 1963, 748 out of a total of 1,250. These are the disputes that worry the Australian Council of Trade Unions and they are the spontaneous disputes that occur on the job. They are rattier short in duration but, nevertheless, they tend to disrupt industry. They are not, generally, disputes authorised by the registered organisations concerned. These are the disputes that the legislation proposed by the Minister will do nothing to cure, because there would be no time in which to notify the court of the impending dispute and there would be no 14 days period during which the dispute could be considered. Most of these disputes are caused by employers refusing to meet workers on the job and discuss their industrial differences. A dispute builds up until the workers decide that they will stop work in support of their demands. These are not the sorts of disputes that will be cured by the legislation. The type of dispute that has a possibility of being cured by the legislation is what could be called - if 1 may be permitted to use term - the legitimate strike; that is, the strike called by a union after due consideration of its claims and of the attitude of the employers towards its claims, and after having held a meeting of its members and decided that if its demands are not met industrial action will be taken in support of the claims.

Unions enter these disputes with a full knowledge of the provisions of the Act and of the sanctions that may be applied to them and in these circumstances the calling of a strike is quite a responsible act, although some people would refer to it as being irresponsible. It is quite a responsible act because the union acts with a full knowledge of the consequences. In these circumstances it is possible to apply a 14 days cooling off period and the legislation may have some opportunity to work. Whilst the legislation provides that the 14 days cooling off period may be extended, it also provides that if it is shown that the dispute will come to a head and that strike action will be taken within 10 days of the notification of the court, the cooling off period does not operate at all. So the period is to be not less than 14 days and it can be more than 14 days. I feel that this will defeat the object that the Minister set out to achieve.

We ask, in our amendment, for urgent legislation to repeal the injunction and contempt provisions of the Act in relation to awards. I think this is an advanced step for a legislature of this kind to take, because it has been amply - shown throughout Australia - which commenced this experiment in arbitration and is continuing it - that the penalties weapon is not the cure for the industrial actions that are taken by unions in support of their demands. I venture to suggest that no repressive legislation can be devised that will prevent workers from insisting upon their just demands. All sorts of things have been tried up to date - even up to jailing the workers' representatives - but none of them has been successful. It is time that the Government took a broader view of this issue and removed the provisions in this legislation to which we object. In fact, this was done in 1930 but subsequent action by Conservative governments has put them back into the legislation or, if not into the legislation, then into the awards by prescription.

We know that when a court makes an award that award may run for a very long time. The waterside worders award prior to the one under which the watersiders operate now ran for almost 36 years. That award was amended continually. It contained provisions which had been in the original award. Penal provisions can be written into awards and, while the court is not allowed to prescribe an award extending beyond a period of five years, by virtue of the Act the award can continue indefinitely and therefore the penal provisions contained in it can also continue indefinitely, despite any action that the unions might take.

I think there would be more industrial peace if the Government adopted a more enlightened attitude towards the problems of the workers and really got down to prescribing some conciliation measures which would allow the parties to get together to settle their differences. Simply to provide for a cooling off period of 14 days and expect negotiations to settle a dispute within that period is not good enough. We know from practical experience that negotiations go on for months and sometimes years before they are finally settled. This is why interim awards are made while disputes continue. Although the 14 day period can be extended, it is not a sufficiently lengthy period in which to settle major industrial disputes by negotiation.

The legislation does not provide any machinery for conciliation over and above that which the present Act contains. If the Minister has any faith in the legislation that he has brought before the chamber and if he believes that it will be effective and permit more negotiation to settle industrial differences, there will have to be a wider field of negotiation and more conciliation commissioners, or mediators - call them what you wish - will have to be appointed to deal with disputes. That is the only way in which this legislation will be at all effective. Over all, I cannot see that it will have any industrial benefit and reduce the degree of industrial unrest which exists at the present time.

Quite recently the Opposition introduced an urgency motion relating to prices control. Since I have been in this chamber I have heard honorable senators on the Government side cry us down on many occasions for wanting to impose controls - for wanting to impose price fixing in this, country. Senator Wirght was pretty right when he said that both sides of the chamber and all sections of the community supported the system of industrial arbitration. Of course, the Conservative senators who sit opposite support price fixing when it concerns the price of labour but they do not support price fixing when it concerns the price of something else. So long as the proposal is to fix the price of labour it is supported. They go to the extent of supporting a minimum price, not a maximum price.

Any one who had knowledge of the price fixing legislation which was administered by the Commonwealth Government during and just after the war knew that the prices fixed were maximum prices and that there was no ambit for anyone to bargain above the prices which were fixed. But the prices which are fixed by the industrial tribunals are the minimum prices, and this leaves an ambit for bargaining outside the tribunals. You cannot have it both ways. If. you are not prepared to agree that price fixing should apply generally you cannot, support price fixing on a minimum rate basis in the field of labour. This is another, matter that the Government has to consider.

The Australian Labour Party and the trade union movement are not the only people to assert that the workers have the right to strike and that this right is inherent in the industrial system. In 1917 Mr. Justice Isaacs, as he then was, had this to say -

If a party while bound to arbitrate attempts to decide the matter for himself, it is an inconsistent act, and is a breach of his obligation which binds him to abide by the decision of the disinterested third party, lt substitutes " might for right " and insists on submission irrespective of justice. 1 think all honorable senators will agree that Mr. Justice Isaacs was pretty well acquainted wilh the industrial laws of Australia, particularly within the jurisdiction in which we are interested. In 19.19 Mr. Justice Higgins, another noted jurist, said -

The Act gives power to prescribe a minimum rale, and the object of that power would be defeated if a man who thinks that his services are worth more than the minimum rate were not free to hold out for a higher rate.

In 1926 Mr. Justice Higgins expanded that statement in this way -

I wim! now to guard against the impression that compulsory arbitration means wage slavery. The system does not involve that the employee is compelled by law to take work under the conditions which the Court fixes. The Award does not compel an employer to give work to any man; nor does it compel any employee to take work offered lo him. . . Any man who thinks that he is not being offered as much as he is entitled to, or in proper conditions, is as free as ever he was to refuse the employment offered; he is as free as ever he was to sell his time and labour for the highest price he can get. The fixing of a minimum rate is a restraint on the employer not the employee.

Although both Justices were well versed in the field of arbitration, it might be said that Mr. Justice Higgins was the father of the system under which we operate at the present time. But he was never prepared to say that the worker did not have the right to strike. Without making any threats, I assure the Senate that the trade union movement as I know it will not surrender that right very freely. 1 believe that the Minister for Labour and National Service (Mr. McMahon) attempted in his second reading speech to mislead the Parliament when he quoted certain sets of figures to show that the sanctions sections of the Act had not been used to any excessive extent. It will be recalled that the trade union movement has contended over the years that the employers make capricious use of the penal provisions of the legislation. The Minister said in his speech -

The following sets of figures covering the last IS years illustrate the extent to which the sanctions provisions have been used: The number of strikes per annum has averaged 1,248 and the number of applications under section 109, and its predecessor section 29, have averaged 26.

If one were to stop there, one would believe that in relation to 1,248 stoppages there had been only 26 applications and would come to the conclusion that the employers had been acting responsibly and had not been making capticious use of the penal provisions. But the Minister went on to say -

The figures relating to sanctions are, of course, confined to proceedings under our Act -

That is the Commonwealth Act -

.   . whereas the loss of man hours and strike figures relate to all jurisdictions . . .

To build up the number of stoppages and the amount of time that had been lost the Minister searched all over Australia to get as high a figure as he possibly could, but when it came to applications under the penal provisions he did not bother to look at the number of applications that had been made in State jurisdictions. He referred only to actions that had been taken in the Commonwealth Court, they being 26 in number.


Senator Wright - 'But is not the Court the judge of the justice of the application? It does not automatically grant every application.


Senator CANT - I did not say that it did.


Senator Wright - But the honorable senator is implying that just because applications have been made the employers are acting capriciously. The Court decides whether the application shall be granted.


Senator CANT - That is true. I cannot argue with the honorable senator on that; but I say that when a dispute extends over a week and an employer makes an application under the penal provisions in respect of every day of the week he is being capricious. In such a case there is only one offence; there is only one strike. But the legislation has continuing application. That sort of thing has been done on several occasions. Quite recently the Amalgamated Engineering Union was fined £2,000. On top of such penalties costs are always awarded.

Senator Wrightdealt with the subject of costs. T agree with him when he says that costs should not be fixed by regulation but that this Parliament should determine how they are to be awarded. If the Minister wants to have the method of determining costs altered., then this Parliament should review it. Nevertheless, it is extending a measure of justice to the trade union movement to say that costs should be restricted. Costs are not to be restricted to costs of junior counsel, because the Minister has said that in appropriate cases the court will be able to award costs for senior counsel. However, in cases where only junior counsel should appear but senior counsel is engaged the Court will award only costs for junior counsel. At least that is a step in the right direction. One of my colleagues will develop the argument that costs should not be awarded in the industrial jurisdiction. So I shall not deal with the matter at length. Nevertheless if, as the Minister has said, this matter will be attended to in the framing of the regulations - I have no reason to doubt that it will be - at least that will be a step in the right direction in giving a measure of justice to the trade union movement.

When I look at the history of our arbitration system and the application of penal provisions over the years, I wonder why the unions ever embraced the system. The only conclusion that I can come to is that the law of the jungle in earlier days must have been pretty bad. Prior to the introduction of legislation to fix wage rates and conditions the headstones of industrial workers were carved in gum trees in the back of New South Wales and Queensland. But the provisions that were included in the 1904 Act were provisions that one would not have expected to be applied to workers who sought justice. That state of affairs continued until the first move was made in 1920 to have the provisions improved. Then we had the famous Bruce-Page Act of 1928 in which an attempt was made to destroy arbitration altogether. In 1930 the Labour Government sought to clear up the mess, and in 1935-36 it was clearly shown in the seamen's case that the power to punish workers for taking strike action still lay with the Court. Over the intervening years the Government has enlarged the number of penalties that could be imposed on workers. The inclusion of more penalties in the Act - at the present time there are 35 or 36 of them - has only given the employers greater scope to make application to the Court to repress the workers. The sooner that this type of legislation is dispensed with the sooner there will be industrial peace in Australia.







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