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Tuesday, 18 May 1965

Senator MURPHY (New South Wales) . - I refer to clause 9 which provides for amendment to section 119 of the principal Act. The clause seeks to amend that section -

(a)   by omitting from paragraph (aa) of subsection (2.) the words "referred to in section one hundred and twenty-five of this Act "; and

(b)   by adding at the end thereof the following sub-section: - " (4.) Proceedings under this section in respect of a breach or nonobservance of a term of an order or award may be commenced at any time within twelve months after the commission of the breach or non-observance.".

I have already mentioned to the Minister and his advisers my view that the manner of introduction of the Bill in this chamber did not completely reveal the position. It was introduced in another place in the same terms and I am not in any way suggesting anything against the Minister who introduced it here. In his second reading speech the Minister said -

The Act as it now stands prevents inspectors taking action in respect of a breach of an award, including recovery of wages, if proceedings are not commenced within six months of the breach of an award. In complicated cases this is sometimes too short a period to allow inspectors to complete their investigations. So the amendment made by clause 9 will permit proceedings to be commenced at any time within twelve months after the commission of the breach.

That was the explanation given by the Minister. It seems to me that inspectors are in the same position as the other persons referred to in section 119 of the principal Act, sub-section (2.), which provides that a penally may be sued for and recovered by the Registrar; an inspector; any organisation which is affected, or whose members or any of them are affected by the breach or non-observance; any member of any organisation who is affected by the breach or non-observance; any party to the award or order; or any officer of any organisation which is affected or any of whose members are affected by the breach or nonobservance, who is authorised under the rules of the organisation to sue on behalf of the organisation. Certainly that covers a considerable number of bodies and. persons not personally and directly affected by any any breach of the award in the sense of being the employee or person who would bc liable to be paid the money concerned. As I understood it, section 119 of the principal Act was not so limited as the Minister indicated. First, the amendment seems to me to apply not only to inspectors but equally well to all the other persons mentioned in section 119 (2.) taking action in respect of breach of an award, including for recovery of wages. He said action could not be taken unless the proceedings are commenced within six months of the breach of the award.

The Commonwealth Industrial Court has had occasion to consider this matter in a number of cases. In Parkinson v. Grazcos Co-operative Limited, reported in Volume 1, Federal Law Reports, at page 90, the Full Bench held that proceedings under section 119 were not in their nature criminal but were civil proceedings to recover a penalty. That view was also adverted to in Australasian Meat Industry Employees Union v. Meat and Allied Trades Federation of Australia, reported in 2 Federal Law Reports, at page 234, when the Court referred to those matters as if they might be continuing offences. But the matter was resolved in another case, Australasian Meat Industry Employees Union v. Thomas Playfair Pty. Ltd., reported in 3 Federal Law Reports, at page 234, in which the Court took the view that there was no limitation of time when the preceedings were brought by an organisation, because the organisation was not the party liable to receive the moneys directly it was not in the same situation as an employee would be - that is " a party aggrieved " - in which case some limitation of two years would apply in New South Wales. The Court held specifically that the provisions of section 56 of the Justices Act of New South Wales did not apply, that the provisions of section 21 of the Crimes Act of the Commonwealth did not apply, and that proceedings under section 119 were not .subject to a limitation of six months under the Justices Act or any other limitation. The effect of the cases is that the well known principles which were referred to by the great Judge Cussen in Victoria many years ago in Jones v. Lorne Sawmills, and referred to bv the high Court on other occasions since, have been affirmed in respect of this section of the Conciliation and Arbitration Act. These principles are very important.

Senator Wright - What does the honor able senator say is a statement of that principle?

Senator MURPHY - The principle is, first, that there are continuing offences in relation to non-payment of wages; next, so far as this section 119 is concerned, that there is no limitation of time for the institution of proceedings. Recovery of wages is a proceeding which has always been looked upon jealously by the law. It is in a special category. There would be many, many cases in which proceedings could not be taken under section 119 if this amendment were applied in the way in which, apparently, the Minister considers it would apply.

Senator Wright - But suing civilly for wages, one would be bound by the six years limitation, would he not?

Senator MURPHY - The honorable senator is now moving into a very obscure part of the law. and certainly, for instance, under comparable provisions of the New South Wales legislation, that would not be so. Where limitations are placed upon recovery under the industrial arbitration acts, this may have the effect also of limiting proceedings otherwise. I should not like to say that one could commence civil proceedings apart from this Act - certainly not in a case where the recovery sought was of amounts required to be paid by an award, as distinct from amounts which might be required to be paid by reason of some contract which could be distinguished from the award.

Senator Wright - Does the honorable senator say that there is no civil action except under the procedure of section 119 to recover wages prescribed by an award?

Senator MURPHY - Where the obligation arises from the award, it might well be enforceable only under the Act and one could not safely say otherwise. It would be different if there were a contract away from the award altogether. If one made a contract to pay a certain amount, the position might well be different. This was adverted to in the famous case, True v. Amalgamated Collieries. In regard to recovery of wages under an award, it seems to me, unless the Minister or his advisers are able to show otherwise, that the amendment would introduce a limitation restricting proceedings under section 119 rather than, as has been suggested by the Minister, an enlarging of the period of limitation from 6 months to 1 2 months.

Senator Gorton - It is not recovery of wages that the honorable senator is talking about; it is the time within which one can proceed.

Senator MURPHY - The time within which proceedings may be brought. The proposed amendment reads -

Proceedings under this section in respect of a breach or non-observance of a term of an order or award may be commenced at any time within 12 months after the commission of the breach or non-observance.

So far as recovery of wages is concerned, this relates back to section 119(3.) of the principal Act, which reads -

Where, in any proceedings against an employer before a court specified in sub-section (1.) of this section, it appears to the Court that an employee of that employer has not been paid an amount to which he is entitled under an order or award, that Court may order that the employer shall pay to the employee the amount of the underpayment that no order shall be made in respect of so much of the underpayment as relates to any period more than 12 months prior to the commencement of the proceedings.

Senator Gorton - Yes, he cannot get more than 12 months wages. What about section 123?

Senator MURPHY - This new clause deals with recovery under sub-section (3.), which is dependent upon existence of the proceedings, and the proposed amendment would place a limitation on the commencement of proceedings. It is said, as a justification of the provision, that an enlargement is being made, that the limitation as to time is being increased from 6 months to 12 months. If what I am putting is correct, that is simply not so and what is proposed involves a restriction.

The effect of this provision may be greater than appears on' the surface, because a serious question arises as to whether offences under this legislation in respect of the non-payment of wages are continuing offences. The better view at the moment may be that the offences are continuing.

However, the effect of this amendment may be to bring about a different view of the obligations and the offences under the legislation and it may well be said that, in the light of proposed sub-section (4.) of section 119, no longer are the offences continuing offences and that unless the proceedings are brought within 12 months of the original breach that will be the end of the matter. This is an extremely serious matter from the point of view of the trade unions and their members. There would be many thousands of cases in which persons have recovered wages because of the present construction and understanding of this section but in which they may well not be able to do so in the future.

Senator Wright - As the Minister suggested a few moments ago, if the plaintiff were an employee he would be bound by section 123, would he not?

Senator MURPHY - For the enlightenment of those who may not have a copy of the Act, section 123 provides -

An employee entitled to the benefit of an award made at any time within twelve months from any payment by way of wages in accordance with the award becoming due to him, but not later, sue for the sum in any court of competent jurisdiction.

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