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Tuesday, 18 May 1965

Senator MURPHY (New South Wales) . - T feel constrained to rise because the Minister has said that these matters are dealt with in a practical way. Unfortunately, the experience of many of the great trade unions is that very often a technical approach is made to these matters. The unions have been subjected to the experience of being taught a great deal about the law - for instance, that the penalty of £500 for non-observance may be applied every day that a dispute continues and in respect of different factories or undertakings where a strike is taking place. In fact, they have learnt that there has been a tremendous multiplication by way of technical applications of the law, despite what the Minister has said about the practical man's approach to the matter.

Let me deal with proposed new subsection (3.). Consider the ordinary case of a bans clause which provides that a union is not to be party to any ban or limitation of work. If the union were to say: " There is to be a ban tomorrow on work at such and such a factory " that, in the ordinary meaning of the industrial law, would be a breach of the award. Similarly, if the union were to say: " There will be a ban or a strike 14 days from now", that equally would be a breach or non-observance of an award. It occurs on the day when the union gives that direction, not when work stops. The ban or limitation may well be said - in fact I should think it almost certainly would be said - to have occurred when the union said: " There is to be a ban ". Does not that bring the case withing section 109 (1.)? In every such case where the employer has a reasonable apprehension that there will be some contravention of the Act such as to entitle him to go to the Court to seek an injunction against a union, he would almost certainly have the proof of an actual breach or non-observance. I would think that the practical position is that in almost every instance where there is a case under section 109 (1.) (b), there is also a case under section 109 (1.) (a). That seems to be the experience of all persons in this chamber who are conversant with the industrial law and its application.

Senator Gorton - Does the honorable senator mean that there always has been a breach?

Senator MURPHY - I am saying that almost invariably where an employer can establish a case for an injunction under section 109 (1.) (b) he can also establish that there has been a breach or nonobservance under section 109 (1.) (a). Even if work has not stopped, if a ban has been placed on work, what difference does it make if the work is to stop tomorrow or in 14 days?

Senator Wright - Why need he have the evidence?

Senator MURPHY - As Senator Wright reminds me, the Minister has not yet answered the question that I put to him originally and which caused him to sit down. The clear position under this proposed amendment is that the employer has only to make the application. There is nothing to say that if he establishes his entitlement to an order under section 109(1.) (a) the provisions of section 109a shall not apply. All that is required here is that he make the application.

Senator Wright - And whether the application is refused or allowed, the application having been made this section becomes inoperative.

Senator MURPHY - Exactly.

Senator Cohen - Even if it is not supported by evidence.

Senator MURPHY - Exactly. There may be the extreme case in which one may say that an application is not an application at all because it is so capricious or so lacking in bona fides that the Court will not treat it as a real application. But leaving that aside, which would be the rarest of rare situations, if an application is made in the ordinary sense, with any attempt to justify it or to persevere with it, that is enough, whether it succeeds or whether it fails. This supposed barrier which has been raised to protect the trade unions or to bring about some amelioration of these hated labour injunctions seems to be no real barrier at all. It is not calculated, however well intentioned it may be, to achieve its purpose.

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