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Tuesday, 18 May 1965

Senator CAVANAGH (South Australia) . - I commence my remarks by reminding the Senate that during the debate on Vietnam I complained about what might be described as deceit in the introduction of legislation or other matters for discussion and the use of misleading information in an attempt to justify that attitude. Something similar has happened on this occasion. Consequently, it may be necessary for me to repeat some of Senator Cohen's comments. This legislation was endorsed and supported by the Australian Council of Trade Unions and the Australian Labour Party - indeed, they welcomed it - because the Minister for Labour and National Service (Mr. McMahon) had said that it was designed to provide a breathing space of a fortnight between the commencement of a dispute and the taking of action, and also to lower the cost of proceedings. The legislation will achieve neither of those ends. Senator Cohen said that the improvement is a very modest one. I go further and say that the improvement, if any, is a very modest one.

I agree with the analysis of Senator Wright on this matter. The main thing that the legislation will do is impede the Court from carrying out or considering the functions that are imposed upon it. But unlike Senator Wright, it does not worry me whether the Court is impeded for the whole of its existence in implementing the sanctions. Nevertheless, I think there is merit in saying that if we, by means of legislation, impose a responsibility upon a tribunal it is strange to find further legislation that somewhat impedes the carrying out of the responsibility. I am of the opinion that this legislation will do that. I believe that the benefits to the trade union movement, about which we on this side of the Senate are concerned, are more imaginary than real. The effect on the trade union movement could be more detrimental than beneficial.

If we look at section 109 of the Conciliation and Arbitration Act we find that it states -

(1)   The Court is empowered -

(a)   to order compliance with an award proved to the satisfaction of the Court to have been broken or not observed.

As the Minister for Works (Senator Gorton) pointed out in his second reading speech, the proposed amendment to the Bill in no way interferes with that provision. Therefore, if it is provided in an award that strikes shall not take place, and a strike does take place, there is nothing in the proposed amendment to prevent immediate notification by the employer and action by the Court, and the application of the penal provisions of which we have been complaining this afternoon. Sub-section (b) provides that the Court is empowered -

To enjoin an organisation or person from committing or continuing a contravention of this Act or s breach or non-observance of an award.

The provision to enjoin an organisation or person from committing or continuing a contravention of the Act is not altered in an way by this legislation. But the Court can enjoin an organisation or a person from committing or continuing a breach or nonobservance of an award only if the parties comply with the proposed new section 109a. The organisations that may be enjoined by virtue of their particular awards at the present time will receive no benefit from this legislation. Anyone who thinks that it will give the waterside workers, the coal miners or anybody else a breathing space of 14 days is wrong. The proposed new section 109a will prevent the Court from enjoining organisations until certain conditions are complied with.

What are the conditions? Proposed new section 109a provides that no action can be taken until the Court has been notified that a breach or non-observance is likely to occur. Sub-section (b) provides that the notification must be given without delay. Under the existing legislation, if a dispute is pending because an organisation has decided it will take action in the future, the employer has the right to seek to have the organisation enjoined to prevent it from breaching the award. But the employer may say: " We will wait and see what develops. If a strike does take place, we will take action." I am not an authority on the Federal act, but I imagine that there is no breach of an award if a strike does not conflict with a clause of an award. Apparently, the Government by this Bill proposes to say, in effect: "We do not want to irritate the men. We will wait and see. If the necessity arises, the employers can approach the Court." But under the proposed amendment, they will have no approach to the Court unless they have notified the Court without delay. If they do not comply with that provision they lose their right to apply for the imposition of the bans and limitation clause. It will make the employer careful to ensure that when there is a rumour of an impending strike he notifies the Court. I do not know whether, after the notification has been given, there has to be a hearing on the question.

We find, too, that the proposed subsection (b) provides that the Court shall not commence the hearing of an application for an order unless it is satisfied that-

(ii)   a Commissioner or a presidential member of the Commission has certified that there was reasonable cause for delay in giving the notification.

That is the exception. Then proposed subsection (c) provides that the Court shall not commence the hearing unless it is satisfied - subject to the next succeeding sub-section, that a period of fourteen days, or such longer period as a Commissioner or a presidential member of the Commission has determined, has elapsed since the notification was given.

That shows that the Court shall not hear an application unless the conditions are complied with. If notification is given without delay and if 14 days have elapsed since the notification was given, it follows that the Court has to hear the application. Although the strike may never eventuate, under the proposed new section the Court will have the power to enjoin an organisation or a person. In my opinion, it will lead to a worse position than exists at the present time. We could find that there were more notifications to the Court of the possibility of disputes occurring than there have been under the present provisions.

On the question of the limitation of costs, we find that the Minister will be given power to prescribe rules in relation to costs. In his second reading speech the

Minister suggested what costs may be prescribed, but we have nothing in the Act to indicate what the costs will be. If unions are limited to junior counsel it will not necessarily benefit them because a greater number of applications may be made to the Court. The Court may say: "We will be better assisted by senior counsel than by junior counsel". If it did say that, it would be difficult for the Court to refuse the costs of senior counsel. I do not know whether the Minister would be influenced on the question of costs by the conduct of unions from time to time.

The Minister, in his second reading speech, said -

First, sanctions in one form or another are an essential part of our arbitration system. The Government has no intention of removing them.

Further on, 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 22. To carry the illustration still further, the number of orders made absolute on applications under the sections I have mentioned has averaged 14. Now it is difficult to argue from these figures that there has been an excessive resort to sanctions.

First, I ask: Why was the period of 15 years selected? The "Labour Report", which publishes the numbers of industrial disputes in Australia since 1913, shows the increased number of industrial disputes which has occurred since 1949. In that year, there were 849 industrial disputes. In 1950, there were 1,276 industrial disputes. There were 1,344 industrial disputes in 1951 and 1,627 industrial disputes in 1952. In quoting our figures, we have not taken a longer period which would include times when strikes were fewer in number but we have taken the period when strikes commenced to increase. We have averaged out these figures to show that sanctions have not been unduly used.

I support Senator Cohen in what he has said. However, my figures differ somewhat from his figures. But my figures were supplied this afternoon from the Minister for Labour and National Service. A calculation shows that they are obviously the figures to which the Minister referred in his second reading speech. In this analysis of applications for orders under section 29 and section 109 of the Commonwealth Conciliation and Arbitration Act, we find that seven applications were made for orders relating to section 29 in 1950. No applications for orders were made in 1951. In 1952, three applications for orders were made and in 1953 seven such applications were made. This analysis takes in 1956 also when no applications were made. I think this was due to the fact that 1956 was the year of the decision in the boilermakers' case. The finding of the Privy Council was that the Commonwealth Court of Conciliation and Arbitration, as then set up, did not have power to impose sanctions.

Because of this lack of power in 1956, no applications were made until section 29 of the Act was amended and the amended section became law. But in the seven years during which section 29 operated, 57 applications for orders were made. In the nine years that section 109 has been in operation, 337 applications for orders have been made, in relation to 222 disputes. Of those applications, 180 orders were granted and made absolute in relation to 147 disputes. So, not only has the number of applications for orders under section 109 increased in recent years but also more than one application and more than one order have been made in relation to the disputes involved. In 1957, 18 applications for orders were made in regard to 15 disputes. Twelve orders were made absolute in relation to 11 disputes. In 1958, 38 applications relating to 11 disputes were made to the Court. There were 26 orders made absolute in connection with those 11 disputes. In 1959, 40 applications were made in relation to 16 disputes. Surely this is carrying the matter to extremes. Because a body strikes, this does not mean that that body is fined. But, with regard to the 40 applications in relation to 16 disputes, 10 orders were made absolute relating to 8 of those disputes. So the figures go on.

We find, as I have already said, that 337 applications for orders were made from 1956 to 1964 compared with 57 such applications from 1950 to 1956. Over the 15 year period from 1950 to 1964 we find, as the Minister for Labour and National Service said, that there was an average of approximately 22 applications for orders. The increased use of the penal provisions has resulted in an increase in the strike levels. So, it would appear that this provision, rather than being a cure, is detrimental to the solution of any dispute. It cannot be said on the figures that I have quoted that, despite the penalties imposed, we are solving anything. This raises the question which we must consider: Is it our desire to punish workers because they take strike action, or is it our desire to prevent strikes?

Siting suspended from 5.45 to 8 p.m.

Senator CAVANAGH - Before the suspension of the sitting I had complained about what I termed deceit in connection with the introduction of legislation. I tried to show that, whatever our views may be, the penal provisions of the Commonwealth Conciliation and Arbitration Act have not stopped strikes. In my view, they will not do so. Therefore, the question to which we have to seek an answer is: Is the Government actuated only by a desire to condemn the workers on every occasion, or does it really want to tackle this strike problem? No-one wants strikes, whether he is on this side of the chamber or the other side, or whether he is an employer or an employee. If anybody suffers as the result of a strike, it is the striker himself.

Senator Morrissaid that strikes are caused by extremists and, trying to be impartial, he added that there are extremists on both sides, and that if we could get rid of the extremists everything would be better. Then, however, he went on to say that on almost every occasion the cause of a strike is the workers themselves. He referred to one incident when workers would not wear certain boots and said he thought that was the cause of a strike then. It is quite obvious that Senator Morris himself is one of the extremists who contribute greatly to the strikes that we all desire to avoid. I should have thought he would have been more quiet on the subject.

He wanted to refer to Mount Isa. In my view, one of the factors contributing to the trouble there was that the men were required, under State industrial legislation, to go before a tribunal that could reduce but not increase their bonuses. That legislation was introduced in 1961 by Senator Morris, who was then Minister for Industry in Queensland. As I have said, that legislation made a direct contribution to the big strike at Mount Isa. The Commonwealth Year Book will show that, although strikes did not decrease when Senator Morris resigned from that office, the bigger strikes stopped and the number of man hours lost through strikes decreased.

Senator Morrisalso referred to workers striking when they came under the Queensland industrial legislation. Let me remind the honorable senator that the Queensland, legislation has penal provisions in it and that only recently the Australian Federated Union of Locomotive Enginemen was fined under those provisions. The honorable senator said that workers in one section of a meat works went on strike but those in another section did not, those who did not strike being under a Federal award. It may well be that the legislation which was sponsored under the guidance of the honorable senator was more conducive to strikes than was the Federal legislation.

We shall never achieve anything if we do not get rid of those extremists who say that only workers are the cause of strikes. The question of provocation must always come into this matter. We must try to find out what compels men to go on strike, to sacrifice their wages and adversely affect the interests of their families. After all, most men have hire purchase and other commitments. It seems to me that any law which thousands of our citizens find themselves in breach of each year is not a just law and does not represent government for the people. If we are to govern for the people we must pass laws to deal with abuses of the normal way of life, not laws which thousands of people find themselves in breach of every year. Laws such as that should never be on the statute books.

During my time in this Parliament I have brought out my pet theories, but I have always tried to substantiate what I have said with facts so as to forestall the comment that what I am saying represents only my opinion, whilst others hold different opinions. I have had 16 years' experience as the secretary of a trade union in South Australia. In those 16 years my union was notorious for being involved in industrial conflicts from time to time. I make no apology for that. My experience has led me to believe that there is a cause for every strike. I do not believe that any one man, no matter what his oratorical powers, no matter what political party he belongs to and no matter what his outlook on industrial matters is, can persuade a body of men to make the sacrifice of taking strike action, unless the men have a grievance which they believe justifies them in striking.

Contrary to what is generally said, wages do not constitute a big factor in the cause of strikes today. In my union, if the employer had made an application for a reduction of wages by 10s. a week I would have been instructed to go to the industrial court and fight against the application. The mcn would have decided to stop work only if I had come back to them and reported that the court was bound by legal precedent and that there was no salvation for them there. However, if I had gone to the men and said that John Smith had been dismissed for sticking up for trade union principles and that I thought the dismissal was unjust, they would have said: " Tell the boss that we are going to take strike action -. There would immediately have been a resolution to stop work until the man was reinstated.

When we look for the cause of strikes we find that there has sprung up in Australia a class hatred between employers and employees. This has occurred because industry has developed to the stage where the employer is no longer an actual participant, but is now a board of directors concerned only with figures. Promotions in factories are given to individuals because of their ability to get more production and to drive men without consideration of the human element. Class hatred is growing because today the employer is remote from his employees. There is no longer the working relationship that existed in small industries. Employers appoint industrial or welfare officers who are concerned with production rather than the human side of factory employment. If we are interested in solving the strike problem, we must consider that factor. We must try to find out whether there is any way in which we can exercise sufficient control of the conduct of businesses as to have administrative appointments that are acceptable to all concerned. While it might interfere somewhat with profits - and I doubt whether it would - it would definitely help to stop repeated stoppages of work year in and year out.

In support of this contention I cite figures on industrial disputes in Australia published in the "Year Book of the Commonwealth of Australia" 1964. The Commonwealth Statistician has put causes of industrial disputes in four classifications. These are - (1) Wages, hours and leave; (2) Physical working conditions and managerial policy; (3) Trade unionism; (4) Other causes. la an explanatory note the Commonwealth Statistician states -

The first group is restricted to disputes involving general principles relating to wages, hours and leave; minor questions regarding the claims to pay or leave by individual employees are included under managerial policy. The second group comprises disputes regarding physical working conditions and general questions of managerial policy, which term covers disciplinary action, the promotion of employees, the employment of particular individuals, personal disagreements between employees and supervisory staff and disputes arising from the computation of wages, leave, etc., in individual cases. The third group includes stoppages over employment of non-unionists, interunion and intra-union disputes, disputes over recognition of union activities, and sympathy stoppages in support of employees in another industry. The last group comprises disputes by way of protest against situations not arising from tha usual relationship of employer and employee, e.g. political matters and cases (occurring mainly in the coal mining industry) where the cause of the stoppage is not officially made known to the management.

The figures for 1963 show that 279 disputes occurred because of wages, hours and leave; 748 because of physical working conditions and managerial policy; 115 because of trade unionism and 108 for other reasons. The percentage of disputes in some of the principal industries due to these causes was as follows -

We must face the fact that physical causes, managerial matters and physical working conditions, lead to more than 54 per cent, of disputes in industry. The figures shown in the last report of the Stevedoring Industry Authority show that the loss of man hours as a result of unauthorised stoppages on the part of waterside workers was 1.6 per cent, of the man hours worked. I have not the actual figures relating to disputes caused by the stevedoring employers but they were higher than ever before and much higher than in the previous year. In addition there were prosecutions for lack of safety provisions and breaches of the award by the employers in the stevedoring industry. If we forgot our prejudices and looked at this matter clearly, we would have to look somewhere else for the causes of industrial disputes. Experience has taught me that there is a Lack of proper relationship between employers and employees in the industry.

In my organisation we reached agreement with the employers on one occasion on wages and conditions but could not proceed to a settlement because the association to which the employers were a party said a dangerous precedent would be established affecting the whole field of industrial relationships in South Australia. So we find that the employers are no longer permitted to decide matters in the interests of their own industry. They have associations with employers organisations and must consider the repercussions of agreements on some other industry. Therefore, they are unable to make agreements for the good of their own industry. However, because the employers are not on strike they are not considered law breakers although they prevent a relationship between employers and employees which would discourage strikes.

We see now the development of employers organisations with trained advocates and industrial officers who believe that their prestige rises according to their ability to defeat claims by the working classes. Their aim is to defeat applications by the employees; they ignore human relationships and the ability of industry to pay. In South Australia there are two employer organisations competing for members. The unions might be able to reach agreement with one organisation, possibly comprising the employers of the majority of the workers in an industry, but the agreement is opposed by the other competitive employers organisation on principle.

My experience is that one of the greatest causes of industrial disputes in Australia is the development of employer organisations and the employment and education of industrial officers by them. By their training and application to industrial matters, these officers become more competent than most solicitors in dealing with industrial affairs although they are laymen. Although a case might be a just one, they know the legal arguments best designed to defeat an application by the workers. Even though a dispute which arises in a factory involving a wage claim is the result of some managerial action, the matter is first taken to the industrial officer of the employer's organisation so that he can try to find a loophole in the award by which the employer can escape his responsibility to make a certain payment. Management is never concerned about the individual difficulties which arise in factories. In the occupation which I followed previously, peculiar difficulties arose by the very nature of the craft and the quick setting material which was being used. These things can never be explained to a board of directors which, in the main, comprises accountants who are concerned only with figures, not with disabilities or difficulties suffered by employees. They want the figures and the figures must be provided.

If we are to stop disputes we must look for the main causes of disputes. On the limited evidence available there are two causes, first, physical hardship suffered by the workers, and secondly, managerial control. Penalties are not a solution to these problems. Irrespective of the penalties that may be imposed, there always will be disputes so long as the causes of disputes exist. Despite the oratorical powers of union organisers, no-one can pull men out on strike if the men do not want to go on strike. At all times the ones who will decide whether they will go on strike or remain at work are the ones who are actually concerned. No body, no organisation and no trade union can get men back to work if they are required to work under intolerable conditions.

If we were sincere about putting an end to strikes, we would set up an inquiry to investigate the causes of strikes. These causes, I believe, come under two headings - managerial control and physical conditions. Waterside workers are very often condemned for going on strike, but if the people knew the accidents which have occurred on the waterfront they would not be so ready to condemn waterside workers for stopping work when they fear that their working conditions are unsafe. The conditions need not necessarily be unsafe, but the waterside workers may fear that they are. Very often the men have suffered physical injury and have attended the burials of mates who have died as a result of unsafe working conditions on the waterfront.

We are prepared to come here and call irresponsible this section of our kinfolk which has contributed greatly to the movement of goods in and around Australia. They are adults who have the responsibility of protecting their wives, families and homes. Because the watersiders have been involved in frequent stoppages we condemn them and say that they will stop work because they are required to load materials for Vietnam and for any other reason. But these are only minor matters. They would never arise if there were not some festering complaint which irritates the employees in the industry. Not less than 78 per cent, of the disputes which occurred last year in the stevedoring industry were the result of working conditions and managerial control.

Reference has been made to strikes over increased wages and political and trade union issues. They are insignificant. If those causes were removed there still would be no worthwhile contribution made towards removing strikes from the Australian industrial scene. If the Government stopped looking at the trade unions and condemning men who regard the responsibility to protect themselves and their organisation as paramount, and if it looked to the managerial side and investigated that, it would find a solution to the disputes which have occurred. The Government should stop penalising a particular section of the community for breaking a law which is unjust and unfair.

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