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Tuesday, 18 May 1965

Senator COHEN (Victoria) .- I want to support the view put by Senator Wright and Murphy on this clause. I suggest to the Minister for Works (Senator Gorton) that there may be some confusion in his mind as to whether proposed new section 109a gives some new right of application. In fact, the only application that can be made under the Act is under section 109, and that may be made under either paragraph (a) or paragraph (b) of sub-section (1.), or both. Anybody with any experience in this jurisdiction knows that any employer - for prudence sake - puts his grounds jointly and severally. He makes an application on both grounds, saying: " We may not be able to prove an actual breach of an award under paragraph (a), but we will certainly get home on paragraph '(b) ". Proposed new section 109a does not add anything to that. It does not add any new grounds upon which an employer can approach the Court. It simply puts certain qualifications on his access to the Court, or, more strictly, upon the Court's power to entertain his application, I find myself in complete agreement with the interpretation of sub-section (3.) of proposed new section 109a, which, as Senators Murphy and Wright have said, says that all that needs to be done is to make an application under paragraph (a) at the same time as an application under paragraph (b). In other words, that would happen if an employer followed the usual course.

Senator Gorton - The honorable senator was talking of 109a (3.).

Senator COHEN - No, of I09A(1.)(a) and (b). There is only one section of the principal Act under which an application may be made and that is section 109. We are discussing proposed new section 109a (3.). I do not think there is any escape from the interpretation of that proposed new sub-section permitting an employer to apply under paragraphs (a) and (b) or proposed new section 109a (1.) and thus to take himself outside anything that is contemplated by the proposed new section. So by the simple device of putting his application on two grounds or making two applications under paragraphs (a) and (b), an employer can thumb his nose at the new prescription. He can say: " I am not interested in section 109a because it does not apply to me".

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