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Tuesday, 18 May 1965


Senator GORTON (Victoria) (Minister for Works) .- in reply- The purpose of the Bill now before us is twofold. In the case of a threatened dispute as a result of a breach of an award, or in a case where an employer and employees in a particular industry seek a variation of an award and a dispute is threatened, the first purpose "of the Bill is to provide a period of time for the different points of view to be considered before an application is made to the Commonwealth Industrial Court by one side or the other to restrain the threatened breach of an award, the hope being that during this period an agreement will be reached between the parties to the dispute by discussion among themselves or before the President of the Commonwealth Conciliation and Arbitration Commission, thus avoiding the cost and trouble involved in an approach to the Commonwealth Industrial Court. The second purpose of the Bill is to limit the costs of actions before the Commonwealth Industrial Court to proportions which the Court itself considers to be reasonable having regard to the matter before it.

A great deal of discussion has centred on the question of whether there should be any sanctions in industrial legislation. Indeed, the amendment moved by the Leader of the Opposition (Senator McKenna) is to the effect that there should not be any sanctions - that they should be abandoned. The Government has made its position clear on this. It does not believe that industrial sanctions ought to be abandoned, and it does not propose to abandon them. I would go further than that and say that no member of a major political party, whether in this place or in the State sphere, speaking seriously and responsibly, would genuinely urge that industrial sanctions be abandoned.

History has shown that in States which have had Labour Administrations over considerable periods industrial sanctions in the State legislation have not been abandoned. History also shows that the sanctions in Commonwealth legislation were introduced by Herbert Evatt, Attorney-General in a Labour Government. In legislation which he introduced in 1947 he provided for industrial sanctions. It was only at a later stage, when, I think, the High Court decided that one court should not have the power of adjudicating a dispute and of imposing sanctions, that the sanctions were placed within the control of another court. I point out that they were introduced by the party which is now in Opposition and I do not believe that they would be abandoned even if that party ever became the Government.

It seems to me to be quite ridiculous to suggest that in a community where there is provision for disputes between employer and employee to be decided impartially by persons who represent neither the employer nor the employee, there should not be some expectation that both parties to a dispute will abide by an impartial arbitrator's decision, and that if they do not abide by an impartial arbitrator's decision they will be expected to pay some penalty for not doing so. I think that, to any reasonable man, that appears to be the only way in which an arbitration system can hope to continue. I believe that 90 per cent, of the Australian people hope for the continuation of the arbitration system because it has brought great benefits to employers, employees and to all Australians. As to what I believe to be the outworn, outdated and dangerous doctrines of class hatred which we heard expounded by Senator Cavanagh, I can say only that they do not apply to any great degree in Australia today. They are breaking down month by month and year by year, to the great anguish and fury of the Communist Party, which would like to see them flourishing, but to the great benefit of the majority of the Australian people.


Senator Cant - The Minister is going to extremes. He is not interested in settling disputes.


Senator GORTON - I am sorry, I cannot hear the honorable senator. Perhaps he could save his remarks until a later stage. Most of this debate has been occupied in discussion of sanctions. I hope I have expressed succinctly the Government view of that portion of the debate. Senator Murphy advanced the argument, as I understood it, that there is an arbitration system which decides a wage which employers are forced to pay and for which employees are expected to work; but, he said, this is a minimum wage and above it there is an area of negotiation between employer and employee. The honorable senator said that there was a complete right to strike, to refuse to work for the wage set by the Commonwealth Conciliation and Arbitration Commission if agreement could not be reached in the area of negotiation above the wage fixed by the Commission. If that proposition is accepted, Mr. President, it means merely that a judgment handed down as to what is a wage which ought to be paid in a particular industry has no significance whatever, except that nothing less than that amount can be paid. It is quite true that any individual clearly can refuse to work for a particular employer at a wage set by the Commission if somewhere else, through free negotiation with another employer, he can obtain a higher wage.

To expand that proposition - as I gather Senator Murphy did - to hold that it is right and proper for an organisation or union to refuse to allow its members to work for a wage which is judged to be proper by the Arbitration Commission where attempts fail to obtain a wage higher than that fixed, to me and probably to most reasonable people means simply that a judgment of the Commission has no binding effect whatever except on one party to it. That party is the employer. If the idea is accepted, it means that the judgment has no binding effect upon the organisation which represents the employees.


Senator Cant - It was through a principle of arbitration that employers were forced to pay a minimum wage.


Senator GORTON - Surely, if a case is brought before the Commission and a judgment is sought on what is a reasonable wage which employers should be forced to pay and for which employees can be expected to work, it is wrong for the organisation representing the employees to say: " Notwithstanding the judgment of the Conciliation and Arbitration Commission, we will not allow our members to work for the wage fixed by the Commission ".


Senator Cavanagh - When has that ever been said?


Senator GORTON - I was endeavouring to indicate that it was inherent in the argument advanced by Senator Murphy this afternoon. It is the matter to which I was addressing my remarks.

Senator Cohenduring the course of his speech said that nothing was included in this legislation to ensure that conciliation would take place when a dispute was threatened between an employer and an employee. I pointed out at the time that encouragement was given in the Bill for the Commonwealth Conciliation and Arbitration Commission to be notified that a dispute was pending because, if the Commission were notified to that effect without delay and the dispute eventuated, whichever party decided to take action in the Commonwealth Industrial Court would receive its costs. If a party to the dispute did not notify the Commission that a dispute was pending, it would not receive its costs. Senator Cohen expanded his argument to say that while that is true as to costs, there is nothing which causes the Conciliation and Arbitration Commission totake any action after it has been notified that a dispute is pending. The honorable senator is quite correct. There is no provision in the Bill which makes the Commission take notice of the dispute; but if the Commission carried out the function for which it was created and carried out responsibly the tasks which its members know were given to them to carry out, if there were any chance of conciliation succeeding in a threatened dispute, it would succeed. The Commission would fail only if it acted with complete irresponsibility. Obviously this is a charge which cannot be levelled fairly against the Commission.. The Commission would take note of the advice and would seek to conciliate and arbitrate in a dispute which, under the terms of this Bill, had been referred to it.

I do not wish to say much more at this stage of the debate. If a breach of an award takes place, this legislation does not affect the situation. The Bill seeks to give some relief to large and inflated costs of legal representations in small cases where the Commonwealth Industrial Court believes that high level legal representation is not required. It does not prevent representation but merely limits, according to the Court's judgment, the costs to be allowed for representation.

The provisions of the Bill seek to ensure that if a dispute is pending, instead of an immediate approach being made to the Commonwealth Industrial Court, some time will be devoted to exploring whether, through the assistance of Commissioners, the dispute can be settled between the parties. If it cannot be settled, the present law is not changed. If in the course of seeking settlement an award is breached, again the present law is not changed. But the Bill does import a period where an opportunity is given to the processes of conciliation and arbitration to provide that an award is not breached. I think that in that way it may well assist the unions and employers. Indeed, I believe it follows the lines at present followed by responsible employers' and employees' organisations. Therefore, I oppose the amendment and commend the Bill to the Senate.

Question put -

That the words proposed to be added (Senator McKenna's amendment) be added.







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