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Tuesday, 18 May 1965

Senator MURPHY (New South Wales) . - I agree that the clause is futile, confusing and unsatisfactory, but for a reason different from that which has exercised the mind of Senator Wright. It seems to me that the trade unions are concurring in the refinement of these provisions instead of taking the firm stand that they ought to have nothing to do with them and that they should be deleted from the legislation. I find it difficult to understand why any trade union should welcome this kind of provision except, of course, that the Australian Council of Trade Unions believes that anything is welcome which helps to show that this kind of labour injunction is deplorable, unnecessary and an excrescence in the industrial field. Apart from that opinion on the part of the A.C.T.U., to which we defer, 1 see nothing of real value to the trade union movement in this amendment.

One notes that the proposed new section 109a relates only to paragraph (b) of subsection (1.) of the preceding section 109. So if an application is made under section 109 (1.) (a) for an order of compliance with an award proved to the satisfaction of the Court to have been broken or not observed, this whole clause 109a has no operation. I suppose 99 per cent, of the cases that come before the Court arise from an allegation by the employer that there has been some breach of an award. It may be that an application is made under paragraph 109 (1.) (b). That would be so in most cases, but the real substance of any application would be that there had been some breach of or non-compliance with an award. So, as I said earlier, the proposed section means nothing. Its inclusion is a three card trick; the provision is a snare and a delusion. Apparently it has been put forward as something that will afford some amelioration of these labour injunction provisions. I do not see how it will do much good except, as I suggested earlier, that one welcomes the motive behind it and the recognition that something must be done to get rid of these labour injunctions. Anything that will help to get rid of them is a step in the right direction. But to my mind this is a feeble, inadequate and, from the practical viewpoint, a negative step.

When one turns to paragraph (c) of subsection (1.) of proposed new section 109a, one sees that a period of 14 days or such longer period as is determined must elapse following the giving of notification before the Court may commence the hearing. But then sub-section (2.) provides -

Paragraph (c) of the last preceding sub-section does not apply if the applicant satisfies the Court that the breach or non-observance is likely to occur within the next ten days.

So even in the rare and extreme case where a union is so reasonable as to go to the employer and say: " We will give you 14 days' notice, or in any event more than 10 days' notice, that unless something is done we propose to get our members to withdraw their services ", all the employer has to do is to wait for a period of time to elapse so that there are 10 days or perhaps less to run before the breach or non-observance occurs, and he may then go right ahead and get an injunction. It seems that the unions are delivering themselves into a trap. Apart from that, whatever may be thought to have been gained by this provision, it is all rendered of no effect where the employer makes an application under paragraphs (a) and (b). In other words, if he can show that there has been some breach of the award, he may ask for an order under the terms of paragraphs (a) and (b). Strangely enough, he does not even have to prove that there has been a breach under paragraph (a) as well as under paragraph (b).

Senator Cohen - He has only to ask for it.

Senator MURPHY - As Senator Cohen has said, he has only to ask for an order. I repeat that he does not even have to prove that there has been a breach under paragraph (a); all he has to do is to make an application under paragraphs (a) and (b), and the section has no effect at all. If anything worse could be put over the trade union movement as a supposed amelioration of the penal provisions I should be very surprised. To describe the proposed section as a three card trick is to give it a very gentle description. One would have hoped that, instead of this kind of provision having been included in the legislation, there had been some practical provision or intervention by the Conciliation and Arbitration Commission so that matters of moment to the unions as well as to the employers could be dealt with by the Commission in a compulsory way. One would have hoped for that sort of thing instead of a set up under which the employers may use these labour injunctions when they are confronted with difficulty in collective bargaining.

However, as a party we are endeavouring on this occasion to defer to the enlightened view of the A.C.T.U., which seeks to encourage any show of sincerity on the part of the Government in ameliorating the penal provisions. It is for that reason that we are not opposing what seems, to anybody who has any acquaintance with the subject, to be a web of illusion.

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