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Thursday, 24 October 1974
Page: 1963


Senator BISHOP (South AustraliaPostmasterGeneral) - The Government takes the view that the Parliament should now take the step of passing the legislation. As Senator James McClelland has pointed out, it is now over 5 years since the famous Moore v. Doyle case. It is over 5 years since a previous Liberal Government decided to set up a working party of the National Labour Advisory Council. That working party worked on this problem for about 3 years. It made observations in a report which has been circulated to members of the Parliament. I think the working party consisted of representatives of all States except one, of the employers and of the Australian Council of Trade Unions. All representatives on the working party were agreed that an attempt should be made to overcome the difficulties adverted to by the Australian Industrial Court. The report went on with some other comments in the same vein. In paragraph 1 4 it stated:

Australian Government departmental representatives favoured an alternative approach based on the premise that, while it was basically a matter for the unions themselves to put their affairs in order, legislative provisions were needed to minimise the effects of technical irregularities and provide machinery to enable the unions to rectify irregularities.

But, of course, this is not a question which concerns only the trade unions, as has been evidenced by the comments made by Senator James McClelland about the views of Mr Polites. This is not the first step. As a matter of fact, as most people know, in South Australia the South Australian Government provided some stop-gap industrial legislation which placed a moratorium on the sort of acts which might arise in relation to these matters flowing from that judgment.

Later, as honourable senators know, when we became the Government the Minister for Labour (Mr Clyde Cameron) requested Mr Justice Sweeney and a committee to report on these matters. I suggest that the report of that committeethe Committee of Inquiry on Co-ordinated Industrial Organisations- which is now being discussed by us is, in fact, a classic report because it deals with the sorts of questions about which Senator Greenwood has talked. As to whether the legislation is constitutionally valid, I suppose that lawyers could argue the point. Mr Justice Sweeney has discussed it in the report, and the decision is that it could be. As a matter of fact, what we have done is simply to follow the suggestions and drafting recommendations of Mr Justice Sweeney. So, in fact, the Government has not done anything new. It has put into the Bill the recommendations of Mr Justice Sweeney and his Committee. As I said before, this is not the first step. As was admitted by Mr Lynch and by Senator Greenwood, on 8 May 1973 we took a step in relation to amendments to the Conciliation and Arbitration Act. As reported at page 1 76 1 of Hansard, Mr Lynch stated:

The Bill proposes to allow employee organisations to include in their membership persons who follow an occupation in or in connection with an industry and persons engaged in an industrial pursuit otherwise than as an employee. This is the proposition which the Government has advanced as a partial solution to the very vexed problems of the case Moore v. Doyle. It is a stopgap arrangement more pertinent to the problems created by the power struggles within the Transport Workers Union than to the central difficulties created by the judgment in Moore v. Doyle.

He made some other comments, and then he continued:

The Opposition believes that there are 4 possible solutions: The enlargement of Commonwealth power to legislate for terms and conditions of employment in industry and for trade unions; the transfer of certain powers to the Commonwealth by the States without referendum; complementary State and Federal legislation; or the encouragement of unions to go through the procedures required by law for the dissolution of State unions and the formation or State branches of federal unions.

Here we are not talking about what a Commonwealth organisation might do on its own account; we are talking about how a Commonwealth organisation might act in relation to its State branches. Senator Greenwood made remarks complementary to what Mr Lynch said. Senator Greenwood did not object to these provisions. As reported at page 1210 of Hansard of 16 October, he stated: 1 take the point which Senator Mulvihill raised. He referred to the Moore v. Doyle situation . . .The Bill contains a clause which seeks to overcome the Moore v. Doyle situation. The Opposition will not oppose that clause, but the Opposition certainly has reservations about whether it will stand up in a court of law if there should bc a challenge to it. We recognise that the resolution of those problems is not easy. The Prime Minister, when taxed about the recent industrial disputation in this country, said that the majority of the disputes which were taking place were caused by demarcation problems.

He continued in that vein. We know the problems which have arisen. Some of these problems are referred to by Mr Justice Sweeney. In the report he talks about the Transport Workers Union and the great problems which arose subsequent to the Moore v. Doyle decision. He also refers to the disputation and disruption in the oil industry in particular, and to the Shell Oil Co. dispute which occurred only recently. He stated:

I should add that written submissions were made to the Committee by each union.

They are the New South Wales Transport Workers Union and the Federal Transport Workers Union. He continued:

These stated that if a system of non corporate registration, as discussed later, is adopted in New South Wales the 2 unions can settle their differences and amalgamate and these problems will not then recur.

I have been told that the Federal Transport Workers Union has decided since the amendment to the Act last year to amend its rules to meet that situation. I suppose the only defence which the Opposition has is to ask, as it has asked in the amendment, whether the unions will cooperate and whether the States will co-operate.

I have already mentioned that the South Australian Government acted quickly. It told the Federal Minister for Labor and Immigration that South Australia is ready to introduce complementary legislation as soon as the Commonwealth Parliament passes this Bill. It would seem to me absolutely essential for this Parliament to pass the Bill and then take the initiative following the meetings between the State Ministers of Labor with Mr Clyde Cameron, which have been referred to by Senator James McClelland, in which this subject has been a matter of fairly continuous discussion. I would think that that is the stage to ask and urge the State governments to pass complementary legislation. We are satisfied that in the main the State parliaments will do so. Senator James McClelland has referred to favourable statements from the New South Wales Minister for Labour and Industry. What will the unions do about it? It is true that not every union which is concerned about this matter has answered the question, but only yesterday I was told personally by Mr Souter, the Secretary of the Australian Council of Trade Unions, that the ACTU supports the Bill. We know now that the employers are as much concerned about this matter because they are organisations in the same sense. They are registered in a similar way to the way in which the unions are registered. I shall read some of the comments made by Mr Polites representing the national employers in his submission which was recently sent to Mr Clyde Cameron. It was sent this month. The submission is headed 'Conciliation and Arbitration Bill Notes for Discussion'. He stated:

The provisions of a Bill to amend the provisions of a Conciliation and Arbitration Act designed to implement the report of the Sweeney inquiry into the problems illustrated by the decision in Moore v. Doyle appear to be generally satisfactory.

He dealt firstly with clause 3. He stated:

This proposal was part of the Sweeney report and is probably necessary.

He dealt with clause 4 which amends section 132. He stated:

Therefore proposals implement the Sweeney report and follow changes made to conditions of eligibility.

He talked about clause 5 which refers to schedule C of the Sweeney report which concerns the vexed question of property. He raised problems which we know exist but which do not deter the passage of the Bill. He agreed that in the main sections 6, 7, 8, 9, 10, 12, 13, 14, 15 and 16 were not objectionable and were necessary for passing this legislation, etc. Senator Greenwood referred in his speech to the demarcation provision which will be inserted by clause 1 1. It refers to a situation arising from the new requirement of eligibility in the industry and provides for the commissioner to have certain responsibilities. Proposed section 142 A states:

The Commission may, on the application of an organisation, an employer or the Minister-

I am told that the Minister would not be worried if the word 'Minister' was taken out. make an order providing that an organisation of employees shall have the right to represent, in respect of all or some industrial interests under this Act, a class or group of employees who are eligible for membership of the organisation, either generally or subject to such limitations as it may specify, to the exclusion of another organisation or organisations and may make such orders as it thinks necessary in consequence of such an order.

In increasing the ambit it is absolutely essential that we have a power to make sure that a new situation does not develop which would create competition and disorganisation. The reason for that proposed section is that it is constructive and it has been recommended by Mr Justice Sweeney. We cannot see why anybody should object to these provisions. One of the measures discussed by the Committee of inquiry is the question of a deed or bond or some sort of penalty under the new arrangements which would obtain as a result of the passage of this Bill and the complementary legislation to be passed by the States. In some cases people have put this forward as a sort of remedy. The Government is not saying that this situation ought to apply. We are simply reporting that Mr Justice Sweeney indicated this as one of the things which might be done. In fact it may be for the States to decide whether any such enforcement procedure is necessary. I would think that in my State, which has generally followed the policies of the Federal Labor Party, there would not be any imposition of penalties. Rather there might be a requirement, in cases in which a body does not act consistently with the requirements of the State industrial arbitration Act, that it follow a policy of deregistration.

So it seems to us that this is merely a delaying situation. This subject has been more than thoroughly canvassed. The working party set up by the Government in which Senator Greenwood was a Minister certainly advanced consideration of the problem, and summarised some of the things it should do. The then Minister for Labour and National Service argued that there ought to be legislation in the Parliament. That legislation was never brought into the Parliament during the reign of the Liberal Party. Seeing the issues and knowing the problems in industry generally- I refer to the disputations which arose as a result of the Moore v. Doyle case- we took it upon ourselves to ensure that the matter would be readily reported, and we brought a Bill into the Parliament. That Bill is here today. I suggest that the amendment simply delays something which should be done now. Having done it, there seems to be no reason that the States and the ACTU, acting and speaking for all the unions, should not readily co-operate in a constructive way to bring about the changes which are required. Everybody knows that those changes are intricate and complex. They are not impossible. The first step has been taken today. I suggest that if the Opposition votes against the Bill one puts beyond possible improvement the sort of industrial complexities which we have today when we should be aiming to solve many of them.

Question put:

That the words proposed to be added (Senator Greenwood's amendment) be added.







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