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Tuesday, 18 May 1965


Senator COHEN (Victoria) .- Three views have been expressed during this debate. The first is the view put forward by the Minister for Works (Senator Gorton) - it was supported with considerable enthusiasm by Senator Morris, although he qualified his support in the last few minutes of his speech - that the legislation which is before us should be approved and that the amendment moved by the Leader of the Opposition (Senator McKenna) should be opposed. The second view expressed was that of the Opposition, which does not oppose the legislation but supports the amendment moved by the Leader of the Opposition. That amendment is -

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.".

That is the view that I desire to support. The third view was put forward by Senator Wright, who, as I understand him, is opposed both to the Bill and to the amendment moved by the Leader of the Opposition. In his speech Senator Wright said that he could only think that the author of the Bill was a will-o'-the-wisp. He described the legislation as being " inane " and as " showing less than respect for the intelligence of the Senate ". His contention was that it went too far because it made a concession to the view which the Opposition and the trade union movement of Australia have put forward over a long period of time. The amendment moved by the Leader of the Opposition was based upon our conviction that it is time to take out of the statute altogether sections 109 and 1 11, dealing with contempt. Senator Wright did not agree with that. Senator Morris, in the last few minutes of his speech, seemed to be fearful of dangers which might arise by reason of the granting of the so-called rest period.


Senator Morris - I sounded that note, but I supported the legislation.


Senator COHEN - I know. Senator Morris is an enthusiastic advocate of sanctions, because he said that he regarded sanctions as an important ingredient in the system of industrial arbitration. He sensed danger in the granting of this rest period, but he still supported sanctions.


Senator Morris - Specifically for the industry that 1 mentioned.


Senator COHEN - I did not understand the honorable senator to be limiting his remarks to the meat industry. He discussed some proceedings in the State industrial tribunal back in 1959 and the circumstances under which the Queensland meat industry came to operate under a Federal award. I 'know nothing of that matter and I do not want to debate the niceties of that proposition. I want to say something about what might be regarded as the sanctions outlook, the philosophy of sanctions. It seems to me that the attitude of the Government and its supporters on the general question of the penal provisions of the Conciliation and Arbitration Act is limited and circumscribed. There seems to be a great deal more anxiety to stop strikes than there is to remove the causes of strikes. In my opinion, this is essentially a negative approach. Much more emotion and enthusiasm are spent on defending the need to put an end to strikes than in raising the fundamental questions of industrial efficiency, harmonious employer-employee relationships and, ultimately, large national questions like productivity. The Government and its supporters seem to concentrate upon the superficial aspects of this matter.

This has been noted by a learned commentator on industrial relations who has written a good deal in this field and has given much consideration to this question of penal provisions. I refer to Professor J. E. Isaac, formerly Professor of Economics in the University of Melbourne and now Professor of Economics in Monash University. I believe he is also President of the Industrial Relations Society of Victoria. Writing in the " Journal of Industrial Relations " of October 1963, Professor Isaac had this to say about the philosophy of penal sanctions - . . as the law now stands it encourages some to be so obsessed and so impatient with trying to stop all strike action as an end in itself that two important matters are inclined to be neglected. First, to seek out the more fundamental causes of industrial discontent, of which strike action is only a symptom, and to provide more effective machinery for alleviating discontent without the use of penal sanctions. Treating symptoms is not the same as treating causes, as anybody with a persistent headache well knows when offered an asprin. Secondly, industrial relations are a continuing relation, and it is important to keep on asking what effect sanctions have on such relations. Are we in danger of throwing the baby out with the bath water? It is not enough to say that the use of penal sanctions is not very widespread. Its frequent use, even in a limited area, is bound to evoke a general sympathetic response among workers.

These observations seem to me to place the emphasis where it should he placed - on a constructive approach to the whole problem of the industrial complex and industrial relations. The legislation before the Senate is some concession - a very modest and minor concession - to the point of view I have put. This point of view has been expressed very forcefully both in this Parliament by the Opposition and outside the Parliament by the trade union movement which has been united in its opposition to the contempt provisions of the Conciliation and Arbitration Act ever since they were introduced.

One need only refer in passing to the debates that took place both in this chamber and in another place as examples of this unequivocal attitude. When these provisions were introduced, the Leader of the Opposition (Senator McKenna) warned the Government that no good would come of them because in the end they would run against the united opposition of the trade union movement and the political wing of the Australian Labour Party. I believe that what the Leader of the Opposition had to say on that occasion was prophetic because no provisions in Australian industrial legislation have caused more unrest and generated more genuine opposition than these contempt provisions.

Let us have no misconceptions about this matter. These are not ordinary sanctions. They are not ordinary penalties for breaches of an award. These are provisions under which a union in breach of an award - and its officers if the circumstances make them applicable - may be brought before the Commonwealth Industrial Court be subject to very heavy fines for contempt of the courts. In other words, under sections 109 and 111 of the Conciliation and Arbitration Act. what begins as an industrial dispute is by a legal device translated into a matter of whether an organisation is in contempt of court or not. That is raising the whole question of industrial disputes onto a new and highly unsatisfactory plane and that is the underlying reason for the amendment that has been moved by the Leader of the Opposition.

As I have said, the Bill makes a modest concession. At the same time, it is important to recognise how limited is the new look. It will not apply at all where there is an actual strike. It will not operate when an employer applying to the Commonwealth Industrial Court satisfies the Court that a breach or non-observance of the award is likely to occur within the next 10 days. Indeed, the whole system of notification of disputes exists only as a preliminary to the Court assuming jurisdiction in the matter, because there is no obligation anywhere in these new provisions for either the employer or the employee to notify a conciliation commissioner of the existence or likelihood of a dispute. All the legislation provides is that if notification is not given, you cannot approach the Court at all. It provides nothing new by way of machinery for the settlement of industrial disputes by conciliation. It prescribes that a period of 14 days must elapse in the ordinary way before an application is made to the Court; but it does nothing to fill the vacuum. It takes no positive steps to ensure that the conciliation process will be going on while that period is passing.


Senator Gorton - But it takes steps to encourage such a process.


Senator COHEN - I d° not know what the steps are except by deferring the right of the employers to approach the Court.


Senator Gorton - If you do not approach the Court, you do not get costs.


Senator COHEN - But costs are only one aspect of this matter.


Senator Gorton - It is encouragement.


Senator COHEN - It may be encouragement to the employer to say: " I had better try to get a formula because if I do not notify the Commissioner of the existence or likelihood of a dispute, 1 cannot get costs ". But the employer need only make a notification. He makes the notification and then preserves his rights so far as costs are concerned. He is not required, nor is any machinery provided, to step up the conciliation process. Nothing need happen during that time. As long as the employer has notified the Commissioner, he has made good his claim for costs if he later succeeds in his case.


Senator Gorton - I think that is an over simplification.


Senator COHEN - It may be a matter of argument. All I am saying is that I do not see the positive measures that are being taken contemporaneously with this to step up the conciliation process. As the Bill does not apply to actual strikes but only to threatened or likely strikes, it is of extremely limited application. Nevertheless, as the Leader of the Opposition has said, we do not oppose it because it does make at least some concession to the view which has been put by us in past debates when measures pertaining to these penal provisions have been before the Parliament. However, we lay stress on the positive approach contained in the amendment proposed by the Leader of the Opposition. I want to take issue with a statement in the Minister's second reading speech in which he dealt with statistics relating to the application of the penal provisions since 1950, when they first came into operation. He said -

The following sets of figures covering the last 15 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. To carry the illustra tion still further, the number of orders made absolute on applications under the sections I have mentioned has averaged 14.

The Minister drew from that the conclusion which he stated in his next observation -

Now it is difficult to argue from these figures that there has been an excessive resort to sanctions.

In my opinion, that statement is disingenuous; it is less than frank, because it fails to acknowledge the very great increase in the number of applications and convictions in recent years. That increase was well set out in the article by Professor Isaac, to which I have referred previously, in the October 1963 issue of the "Journal of Industrial Relations ". For the sake of brevity, I will read the Professor's statement. That will save me referring to a number of different documents and figures. The source of the Professor's figures is the Department of Labour and National Service. He states the matter in this way -

Since 1961, the Commonwealth penal provisions have been administered more frequently, more heavily and more widely than in any previous period. In the 12 years ending 1961, there were 203 applications for orders under section 109 and its precursor section 29. Of these, 109 orders were made absolute. These represent an annual average of 17 and 9 respectively and may be compared with 67 and 50 for 1962, in which year a larger variety of unions than usual, numbering 20, were involved as respondents in these proceedings. And the annual average for the first half of 1963 is nearly twice the corresponding figures for 1962. In the same 12 years, 50 fines were imposed under sections 29a and 111 amounting to £13,800. In 1962, there were 28 fines amounting to £9,150. More than half of this amount was incurred by the Waterside Workers Federation, the rest being borne by eight other unions. And in the first half of 1963, 23 fines amounting to £9,200 were imposed.

There was a very big increase again in 1963-64. In a period of 10 months in 1963-64 there were 51 fines. In addition, costs totalling the huge amount of, I think, £33,000 were imposed on unions from 1950 to 1964. Penalties in 1964 amounted to over £27,000.

The Minister ignores the fact that there has been in recent years an immense increase in both the number of applications and the number of penalties. Indeed, the present measure is in some respects a response to the argument that the employers in some industries were beginning to have automatic recourse to the penal provisions rather than to the general conciliation provisions of the Act. The Bill is an acknowledgment that this process was becoming too much of a habit. The easy way out was to use the big stick, to go immediately to the Commonwealth Industrial Court for orders under section 109 and to follow that up with orders for contempt under section 111, resulting in fines and heavy costs. That is the context in which the present Bill was introduced.

It seems to me that the thinking on the Government side about penal sanctions is very generalised and does not condescend to any analysis of the type of distinctions that could be made if one were disposed to make them. I put this forward as the way in which the matter should be approached. One looks in vain in the Government's thinking for some kind of distinction between strikes which affect the national interest and strikes which are merely inconvenient, which might have some temporary effect on employers and perhaps on parts of an industry but which do not raise any national issues or national questions. These penal sanctions have been used indiscriminately - not only in cases where some general threat to national activity has been involved but also in cases where no real question of national importance has arisen. If we reach the stage where this is regarded as the only way to deal with a difficult industrial situation, this country will begin to go downhill and industrially we will not be able to make the progress that we should make.

No-one on this side of the Senate and no other responsible person would advocate striking for the sake of striking. Everyone appreciates that when there are strikes there are people, including the strikers themselves and their families, who suffer hardship. But there are often great principles at stake. A system which does not concede to unions the right to use the strike weapon as a last resort is a system lacking in something fundamental. One concession which the trade union movement cannot make is to give away entirely and without qualification the right to strike.

The Government's approach, so far as it goes on this occasion, is welcome; but it is most important for us to get the legislation into perspective, because it gives away very little. The cooling off period as it has been referred to outside, is not a cooling off period in the strict sense because, as I have said, there is nothing to fill the vacuum. A period of 14 days is set before an approach can be made to the Court after notification of a dispute, but it is not as though some separate machinery for conciliation were being contemporaneously or simultaneously set in motion.

I do not propose to delay the Senate much longer. I suggest that Senator Wright's approach takes the matter to its extreme. He regards the legislation as inane and rather tellingly points to the way in which the amendment to the new section 109a introduced in another place - the proposed sub-section 3 - takes away with the right hand what it had given with the left hand. The Opposition does not share that point of view because it concedes nothing to the position we hold.

I thought Senator Morris laboured unnecessarily his point that sanctions are an important part of the system of industrial relations. He gave the point so much emphasis that he seemed to regard sanctions as the central part of the system of industrial relations which he supports. The Opposition stands committed to the system of conciliation and arbitration, but not to the arbitrary use of penal provisions against the trade unions. We want to see removed from the statute book those provisions which deals with the iniquitous proceedings for contempt. They are a blot on our industrial system and should be removed at the earliest opportunity. I support the amendment moved by the Leader of the Opposition in the Senate.







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