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Wednesday, 24 May 1972
Page: 2018


Senator CARRICK (New South Wales) - Few, if any, of the Australian Labor Party speakers have mentioned, except by accident, the contents of the Conciliation and Arbitration Bill or its impact upon the principal Act. Wtih respect, the previous speaker, Senator James McClelland, strayed only occasionally towards the Bill or the Act. I think it is important to realise that the speeches of the Labor Opposition have all been characterised by the usual class war cliches, the bitterness, the invective, the cry of the Jeremiahs, that in debates on 51 separate amendments of this principal Act over 68 years have sprinkled the pages of Hansard and have been consistently proven wrong in practice. To bring this debate back to the Act and to the Bill I say to the Senate that the parent or principal Act is the Conciliation and Arbitration Act 1904- 1970. Beyond a doubt it is the most significant piece of social and industrial legislation on the Australian statute book.

The Conciliation and Arbitration Act has done more for the welfare of all Australians, particularly Australian employees, than has any other legislation.. The principal Act has a world-wide reputation. It is mentioned with admiration in text books throughout the world as a pacesetter in industrial reform. Against the background of that Act we must look to the amendments in this Bill. I point out with some restraint the origins of the principal Act so that honourable senators can interweave the provisions of the Bill in it. It is derived from an industrial power that was written into the Constitution after the fights of 2 great men whose names were well known afterwards - the one Higgins, who became the judge of the court; the other Charles Kingston, well known in South Australia. Indeed, in the words of Conciliation Commissioner Portus, this Act emerged from the disaster of the maritime and shearers strike of 1890. In his book, 'The Development of Trade Union Law', Portus says:

The development of arbitration can be summed up by stating that the maritime strike made people conscious of the necessity of government intervention in industrial disputes and the Labor movement for its own reasons were prepared to co-operate with non-Labor governments when they introduced the legislation.

I recall to the Senate the fact that governments of Liberal faith initiated this historic legislation, and it has been governments of Liberal faith which have nurtured it and developed it over the 68 years of its life. Every major criticism brought forward by the Labor Party has proven wrong in practice. The criticism levelled tonight, that this is repressive legislation, will go to the ashes as has previous criticism. The notion this is somewhat of a pugilistic arena was drawn upon by Sir Robert Garran, the great authority on the Australian Constitution, who wrote in 1930 that in the first 25 years of federation the Commonwealth industrial power played a greater part in political history and legal controversy than did the rest of the Constitution put together. A similar comment would have been justifiable covering the subsequent 46 years of Federation had Sir Robert lived that long.

Attempts to amend the Act by referenda have failed some 6 times. By bestowing this power, governments of Liberal faith gave the trade unions their chance to establish themselves firmly. We proudly acknowledge that governments of our faith gave the trade unions the chance to grow, to be vigorous, and to take part in authentic industrial agitation. Indeed, it gave rise to the arbitration system which, as did the trade union movement, led the world in such industrial achievements as the famous Harvester case, which developed the basic wage, and the fixation of working hours, standards of work, long service leave, sick leave and margins for skill.


Senator Georges - It has been a battle all the way.


Senator CARRICK - Indeed it has. I commend to honourable senators the fact that a wise and common sense electorate has elected a pro-Liberal government for 54 of the 71 years of federation.


Senator Murphy - You did not even exist for most of that time.


Senator CARRICK - In answer to the honourable senators who have interjected, let rae say that I hope the Labor Party continues it agitation from the Opposition benches, lt cannot claim any credit for the great social reforms that we have instituted. I commend this thought to the electorate for the future. I intend to make my own speech with no help from Senator Georges, who is seeking to interject. If he has any ideas that he thinks might be helpful, he will be able to put them to the Senate later. History will speak for itself. History will speak for the fact that under a Liberal administration, trade unions in Australia grew strong and developed faster than did unions in any other country - faster than in Britain and in the United States of America. This led Conciliation Commissioner Portus to say:

From being associations tolerated by the State they (the trade unions) have become semi-official associations which are given a part in the making and administration of law.

In this, governments of Liberal faith have helped at all times. We stand firmly for strong, vigorous industrial trade unionism, not political trade unionism, not rule by trade union bosses but authentic rule by democratic process from the grass roots of the trade unions. Contrary to the opinions of Senator James McClelland, the legislation before the Senate tonight will give the trade unions more democratic protection and democratic rights at the grass roots. It is significant that none of these things has been mentioned tonight. In fact, one would have thought that the Opposition was speaking on another Bill.


Senator Bishop - You are not talking about the Bill.


Senator CARRICK - I will read the details of the Bill for Senator Bishop's edification. Because of that background, inside those 68 years Australia developed as a country with the greatest sharing of production and incomes of any country in the world. Labor supporters are tender on that score and are inclined to quote from Professor Henderson. I draw attention to the book 'Poverty in Melbourne' in which Professor Henderson says that Australia has the lowest poverty rate in the world primarily because we have the greatest sharing of incomes of any country in the world. Let Labor senators squeal, but the facts cannot be denied. They are seeking to knock this Bill tonight, but the principal Act has done more for the people of Australia than has any other piece of legislation. I repeat that it has been a pace setter in social and industrial reform throughout the world.


Senator Bishop - Ask the workers and hear what they say.


Senator CARRICK - Yes, I shall. Since I have been told that this legislation does not relate to reforms, I would like to mention the major reforms contained in the Bill. The Bill has some 9 clauses or groups of clauses that seek to add further protections to unionists at the grass roots. Let Labor senators laugh. The Labor Party concept of a trade union is an organisation that seeks power for the trade union boss and no freedom for those people at the grass roots. When I hear Labor senators plead in this chamber for the freedom of the ordinary trade unionist, my heart will be glad. In truth, the only people, the only parties and the only governments that have written protection of the workers into these Acts - not protection of bureaucrats - have been of the same political complexion as have honourable senators on this side. The Bill contains 9 major provisions relating to unproved conditions for the workers. Clause 6 strengthens the protection of workers and members against loss of employment, should they be officials or intending to be officials or should they be witnesses, about to become witnesses or likely to be witnesses.


Senator Milliner - Who wants that protection?


Senator CARRICK - We do. This Government stands for protection. It does not mouth civil liberties. Let honourable senators opposite interject.


The PRESIDENT - Order! I remind honourable senators that the previous speaker, Senator James McClelland, made a model speech in a second reading debate. I noticed that honourable senators on my right winced from time to time at the thrusts he made, but he was listened to in the silence that he was entitled to receive. I would be grateful if honourable senators sitting on my left would extend to Senator Carrick the same courtesy as was extended to Senator James McClelland.


Senator CARRICK - Thank you, Mr President. I was asked: 'Who wants those protections?' We on this side of the Senate are willing to give practical civil liberty. This is an enormously valuable protection. If that is not so, will members of the Opposition go out into the trade union movement and say that this is not necessary?

Clause 19 widens the grounds under which a secret ballot may be secured. Let the Opposition mock secret ballots, lt mocks them when this action suits it. It seeks secret ballots when it wants them. I say that this will widen the grass roots support. Clause 21 enables the Commission to provide for unlimited accumulation of sick leave. We take our pleasures sadly, do we not? Do honourable senators opposite deny that that is a first class reform? Does anyone in the Labor Party say that it is not good? Why is it that there has been abysmal silence in this matter? Clauses 33 and 34 extend the powers of inspectors in terms of the rights of entry to premises outside ordinary working hours. Is that right or is it wrong?


Senator Mulvihill - That has been sought for years.


Senator CARRICK - Senator Mulvihill confirms what I am saying. Does anyone doubt that the inspectors should have these powers or that this will help the workers? Clause 45 and clause 46 make provision for procedures when the rules of an organisation are contravened and for the performance of those rules. Is that bad? Clause 47 provides for financial assistance for members under section 140 and section 141 of the principal Act in seeking legal costs. Does any member of the Opposition say that that is not the extension of a valuable democratic right to a trade union member? If he does, let him rise to his feet and say so. Clause 49 covers rules regarding the resignation of membership. Clause 52 provides for an official inquiry into alleged irregularities in elections. Do not those 9 collective reforms add up to a valuable widening of the rights and protections of unionists at the grass roots?

Having said that, let me test these points. Not one of the speakers on the Opposition side has referred to this or to the enormously valuable steps that will be taken to help to strengthen authentic industrial unionism. By that the Bill is measured. Secondly, and without help from Senator Milliner who has spoken already and who is trying to interject - indeed his speech was not helpful - this Bill aims to reform the conciliation and arbitration processes so that by those reforms we get a speedy, more effective, more flexible and more responsive kind of approach for the settlement of disputes quickly at the grass roots. It is a response through specialised understanding.


Senator Bishop - You do not believe that, senator.


Senator CARRICK - Mr President,let me help Senator Bishop who needs above all some tender eduction. This measure has 6 main provisions. It separates conciliation and arbitration functions so that the same commissioner docs not sit as Caesar appealing to Caesar. Does anyone doubt that this ls right? The trade union movement has asked for it. The second provision is the reconstitution of the Commission to provide for an unspecified number of commissioners with a retiring age of 65. Do we argue about that provision? The third point in this provision is that deputy presidents need not be lawyers but may be people of particular qualifications. Is that wrong? Is it not sensible? The fourth provision is a key one. This is the establishment of task forces by the Full Bench, each with a deputy president and at least one conciliation and arbitration commissioner, taking industries or groups of industries and being responsive immediately. Was there a mention of this provision? Was there a commendation of it? The fifth provision is that before ratifying a consent award the commission must take into account the public interest and the commission must note the economic consequences of its actions. Here is another basic provision. The sixth provision is that when an application is made for the insertion of a bans clause the primary duty of the presidential member is to bring the conduct to a cessation at that point. These are major points which should have been debated. Then there is the provision iin respect of amalgamations. Though some loose rules exist, the Act now does not provide for amalgamations in any regular form. The present Bill seeks to correct that situation.

What is the nub of this legislation? The nub is that, ever since arbitration has existed, the Labor Party has taken an ambivalent view of arbitration. It has sought the privileges of arbitration. It has wanted the protections ofarbitraion against employers. It has wanted employers to be punished. But it will not have a bar of the acceptance of responsibility for enforcing behaviour upon itself. I think it was Disraeli who said that the newspapers of his day were like the courtesans of old, seeking absolute power with no responsibility. The Labor Party in its approach to arbitration has been perennially an industrial courtesan. Here is the ambivalence of its attitude. It wants the privileges but it wants to hop under the fence into the industrial jungle. The fact of the matter is this: The Labor Party is trying to move out of the field of arbitration and into the field of collective bargaining despite the fact that the whole history of collective bargaining throughout the world has these 5 major criticisms: The first is that under collective bargaining strikes are invariably much longer, more widespread and generally national in impact. The second criticism is that collective bargaining favours big industries which can meet its terms. It is highly destructive of small industries. In Australia, 90 per cent of all our industries have 50 employees or fewer. So collective bargaining will wipe out small industries. This is the Labor Party which claims that it is out to help the small man. In fact it is out to create industrial monopoly.

The third criticism of collective bargaining - and this is important - is that no method has been devised to enforce the bargain when it is made. The fourth criticism is that collective bargaining destroys the small trade unions and promotes the large trade unions. Australia has 305 trade unions of which 198, or 65 per cent, have fewer than 2,000 members. I hope that we will nurture the small unions which have done a first class job. The final criticism is that collective bargaining by its insistence on numbers tends to ignore those with skill. The skilled are swamped by the unskilled and the margins for skill dwindle. Senator James McClelland set out to show by figures from the International Labour Organisation that the man-days lost in Australia in the period 1965 to 1969 were fewer by far than the man-days lost in Canada, the United States of America and Italy. In so doing, the honourable senator was inadvertently condemning collective bargaining and praising arbitration because it is the arbitration system in Australia and the system of collective bargaining elsewhere that have created this situation.

The second main challenge by the Labor Party is to sanctions or penalties, lt is a strange thing that this challenge should be made by the Labor Party because all of its great leaders whom it reveres and sanctifies - I go along with their being so regarded - have stressed the importance of the maintenance of sanctions. They have stressed the importance of sanctions as being imperative to arbitration. I mention a former Premier of New South Wales, the late Mr Cahill. He is revered, and rightly.

In referring to what Mr Cahill said, an article that I have states:

No arbitration Act could be effective unless it included some disciplinary code. ... If arbitration were discredited it would mean all-out war between employers and unionists.' . . .

Mr Cahillurged the conference not to 'be impulsive or hurried' in considering the proposed changes in the Act. 'Under the guise of removing the penal clauses, there has been an Australiawide effort to discredit arbitration generally,' he said. "This is to be deplored.'

He then went on to say that the history of industrial disputes since, say, 1939 did not bear out the claim that the existing penal clauses in the Act had operated particularly harshly against the unions. He set out to prove that in that time the penal clauses overwhelmingly had weighed against the employers and had worked in favour of the unions. Need I quote what Mr Landa, the then Attorney-General, said? He had this to say:

No law is of ase unless it can be enforced by sanctions or penalties. If the penal clauses are entirely eliminated the compulsory aspect of arbitration will disappear.

Need I quote what Mr Maloney, the then Minister for Labour and Industry, said. He went on to say that if the penal clauses are removed the only people it will help will be the communists and he proceeded to set out that it was the Communist Party's policy to have them removed. Need I quote the remarks which were made by Mr Chifley in 1949. He said: 1 now say to the rank and file of the miners: The policy of the Commonwealth and New South Wales governments is known to you. The attitude of the great body of your fellow unionists and your fellow members in the Australian Labor Party has been made clear to you. Either you forsake the law of the jungle, which is the communist creed, and return to the proper and lawful arbitration authority, or you ally yourselves with the world-wide movement that seeks to wreck the democratic way of fife.

That was said by Mr Chifley. Dr Evatt, the then Attorney-General, had this to say:

The Parliament has recognised its special duty to the coal-miners but they in turn owe a duty to the community. They cannot wage economic war on the community and at the same time claim the rights of the arbitration system. They cannot have it both ways.

Now may 1 refer to what was said by Mr Whitlam and Mr Clyde Cameron who by public announcements sought to impose the harshest penal sanctions on trade unions, sanctions which I deplore. Let the

Opposition deny that in a public statement in October last they sought to penalise individual trade unionists $20 for breaches of a law. Need I remind the Opposition how the Australian Council of Trade Unions asked its executive to look for ways of enforcement. No law can be enforced unless it has proper penalties in it. I do not stand for punitive action at all. I believe that penalties should be the last resort and they have been. In every other sort of law, whether criminal or civil, the power of the arbitral authority or the court must be related to the calling of witnesses and of evidence and to compelling people to appear and give evidence. Let me make this clear: Unless an arbitral authority acting, as it does, as the community and for the community, can say to the employer if he is in the wrong: 'You will stop your lock out while I hear this matter' or say to the employee: 'You will stop your strikes', what we have is community blackmail because no judicial authority can be placed under pressure and duress of lockout or strike in order to force it to give a judgment it would not otherwise have given. Nobody in the community would accept otherwise. The dilemma throughout the world is how to enforce agreements when made.

I have spoken basically about the contents of this Bill the generality of which I approve and commend fully to the Senate. Despite the jeremiahs it will strengthen enormously in the interests of trade union workers at the grass roots their conditions of work and this Government to which I proudly belong will work towards that end. A great deal of slang-whanging about what causes inflation has been engaged in. I do not want to blame any one person or any one group for this. This community has a habit of committing industrial hara-kiri. The Conciliation and Arbitration Act cannot of itself be a panacea to solve our present problem - a universal one - of inflation. It can go some way towards it and I want to talk in my remaining few minutes of that. The Act must work hand in hand with a number of handmaidens and one which I welcome is the Trade Practices Act. It is working in England and will work here. Another is the sensible use of tariffs so that they provide and protect employment but at the same time do not allow excess prices due to unused tariffs. Yet another is a progressive taxation scale.

When I made my maiden speech in this House I stood here not representing either employees or employers. I felt that honourable senators represented the community as a whole. I said that I rejected the class war and I do now. I do not believe in the concept that the employer is out on the make entirely to give the employee as little as possible or that the employee is out to do as little as possible for as much as possible. There is no doubt in this world that the only way an employer can be prosperous is to have prosperous employees, and they are the working section of the community. There is no doubt at all that the only way in which the employee can have a higher wage is to get costs down and production up. Consequently increased productivity is the twin goal of both sides. 1 hope that we will have no more in this chamber or elsewhere of these shibboleths of the class war.

This legislation has a world wide reputation and other countries look to it with envy and admiration. They are seeking to adopt it because they know that it gives more to the employees than any other form of legislation. Until 3 years ago - and I pay this tribute - the industrial leadership of this country for the 17 years before that was by a great Australian, Mr Alfred Monk, who understood the difference between authentic industrial unionism and political unionism which exploits the worker. In that 17 years we had a high level of industrial peace and the lowest rise in industrial costs of any industrialised country.


Senator Bishop - You attacked the Australian Council of Trade Unions then.


Senator CARRICK - I have never attacked it in my life. I am grateful to Senator Bishop for interjecting. He seems always to know more of the sub-rose things than I do. Nobody has ever heard me on my feet or in writing attack the ACTU or even Mr Hawke or authentic trade unionism. I am as strong an advocate as anybody in this place for trade unionism. We had a miraculous run of 17 years of great peace, sharing and prosperity. It was better than it was anywhere else in the world. When the trade union movement moved towards the left and towards political unionism it did a grave disservice to its own people and the people generally of Australia. This Bill still cannot work purely as a piece of legislation unless the hearts and minds of all people are behind it. I make the plea to the grass roots trade unions of this country to look towards industrial unionism rather than the anarchy of political unionism.







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