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Tuesday, 18 May 1965

Senator GORTON (Victoria) (Minister for Works) .- The legislation will apply when a dispute is called immediately by a shop steward in breach of an award or in any circumstances of that sort because there will be no alteration in the present law applying to such circumstances. The legislation will apply where there is discussion between the employers organisation or the employees designed by one side or the other to lead to an alteration of an existing award. At present it might be possible, for example, for an organisation of employees to state that unless the employers meet their demands, the employees will have an industrial stoppage in a fortnight's time. Under the Act as it stands, it would be possible for an application to be- made to the court for an immediate injunction to prevent that breach of the award. The provisions of the Bill would require that to be done only under certain conditions. Those conditions would be that immediately such a situation arose, the court would be notified that there might be a breach of the award. If that notification was not made immediately, the court would have to be satisfied that there was a delay because discussions were taking place which seemed likely to result in finality between the two parties. Provided no breach of the award had taken place, no injunction would be granted by the court until 14 days after the notification.

Senator Cant - But we are supposing that they have already stated that there would be a stoppage in 14 days.

Senator GORTON - If they did stop in 14 days, the existing law would apply whether this Bill is passed or not; but the Bill does encourage an approach to the Conciliation Commissioner at the inception of a dispute. If an approach does take place, the ordinary provisions for a mandamus or injunction or whatever it might be will still apply.

As to the actual application of proposed new section 109a (3.), there could well be - if I might use such a disrespectful wordsome esoteric legal point. I believe the actual situation would be that if a breach had taken place but was no longer in operation, under 109a (3.) an employer would make an application for an order. Two things would be required before this application could be successful. First, there would have to be a breach of the award and non-observance of the award or a similar breach would have to be likely. If an application had been made under those circumstances, then the Commonwealth Industrial Court would not be bound by the preceding part of section 109a.

As to the second point, as a layman I emphasise again that this Bill does not alter the existing situation when there is no breach of the award. The term " cooling off period " is not the right description of what is provided in the Bill. But the Bill does provide that when an incipient dispute becomes known to both parties, an injunction against the incipient dispute turning into a real dispute will not be sought immediately. It will be sought only after an application to the Conciliation Commissioner on the ground that there is an incipient dispute.

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