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Tuesday, 18 May 1965

Senator WRIGHT (Tasmania) .- I want to put forward my view of subsection (3.) of proposed new section 109a. In my view, section 109 empowers the Commonwealth Industrial Court to grant a mandatory order for compliance with an award or to issue an injunction against a breach of an award. Proposed new section 109a subtracts from the Court's power to deal with an application for an injunction. By an amendment that the Minister for Labour and National Service (Mr. McMahon) moved in another place as an afterthought, and which now takes expression in sub-section (3.) of proposed new section 109a, it is provided that none of these provisions shall apply if an application is made for an order under paragraph (a) and paragraph (b) of sub-section (1.) of section 109 - that is, if an application is made for a mandatory order at the same time as an application for an injunction. That means that if you file the two applications together you prevent from having any effect whatever all the rigmarole which is being written into the statute under proposed new section 109a, which I say is an affront to the Court.

By the simplest of devices the whole of proposed new section 109a can be relegated to complete futility. Section 109a restrains the Court's power to deal with an injunction - it cannot deal with it until a certain time has elapsed - only in the case where the application for an injunction is not accompanied by an application for a mandatory order. There will never be a situation where an employer will spend money to try to prevent a breach of an award and use the properly constituted Industrial Court to get an order under paragraph (b) - an injunction against breach. If that employer spends money on counsel in order to get rid of all this nonsense that is coming into the Act in the form of proposed new section 109a he will automatically file, along with his application for an injunction, an application for an order of mandatory nature under paragraph (a). He does not have to adduce proof when he files his application. The filing of the application alone, in the terms of sub-section (3.) of proposed new section 109a, means that the preceding provisions of the section do not apply. Tweedledum, under paragraph (a), will march along with Tweedledee under paragraph (b). By the combined efforts of these two blind mice, section 109a will be relegated to the futility of the wastepaper basket. Every employer with an atom of sense will simply laugh at the whole of this Parliament's proceedings in bringing in such legislation.

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