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Industrial Relations Legislation - Senate Select Committee - Final Report dated October 1982, together with Transcripts of Evidence (5 vols) and Submissions and Additional Information Received [Report only printed]


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The Parliament of the Commonwealth of Australia

SENATE SELECT COMMITTEE ON INDUSTRIAL RELATIONS LEGISLATION

Final Report

October 82

Presented and ordered to be printed 26 October 1982

Parliamentary Paper No. 251/1982

Parliamentary Paper No. 251/1982

The Parliament of the Commonwealth of Australia

SENATE SELECT COMMITTEE ON INDUSTRIAL RELATIONS LEGISLATION

Final Report

October 1982

The Commonwealth Government Printer Canberra 1982

© Commonwealth of Australia 1982

ISBN 0 644 02241 8

Printed by Authority by the Commonwealth Government Printer

MEMBERS OF THE COMMITTEE

Senator Brian Harradine (Ind., Tasmania) Chairman Senator N. Bolkus (A.L.P., South Australia) (from 22 September 1982) Senator J.N. Button (A.L.P., Victoria) Senator D.J. Hamer, D.S.C. (L.P., Victoria) Senator J.A. Mulvihill (A.L.P., New South Wales) (until 22

September 1982) Senator J.R. Siddons (A.D., Victoria) Senator M.S. Walters (L.P., Tasmania) Senator the Rt. Hon. R.G. Withers (L.P., Western Australia)

Secretary

Mr R.J. Wiber The Senate Parliament House Canberra. ACT 2600

iii

CONTENTS

Page

List of Members of the Committee iii

Contents v

Abbreviations vii

Summary of Observations, Conclusions and Recommendations xi

Chapter 1 - Introduction 1

Chapter 2 - The Federal Conciliation and Arbitration System: Origins and Overview 7

Chapter 3 - Industry-based Unions 15

Chapter 4 - Abolition of Preference 37

Chapter 5 - Stand-downs 69

Chapter 6 - Other Provisions of the Conciliation and Arbitration Amendment Bill 1982 91

Dissenting Report by Senator Hamer, Senator Walters and Senator The Rt. Hon. R.G. Withers 109

Appendixes

Appendix 1 - List of Persons and Organizations who provided the Committee with Submissions or other written material 113

Appendix 2 - List of Witnesses who appeared before the Committee 117

List of Tables

3A - Membership of Australian trade unions -1891 to 1979 17

3B - Size distribution of Australian trade unions, December 1979 22

3C - Demarcation and Inter/Intra Union Disputes compared with Total Disputes - All industries, 1973/79 32

4A - Section 47 Applications - 1956 to 20 October 1977 47

4B - Section 144A Applications - October 1977 to December 1981 48

v

ABBREVIATIONS

AAFEA Australasian Airline Flight Engineers'

Association

ABEU (Fed) Australian Bank Employees' Union

(Federal Executive)

ABEU (Tas) Australian Bank Employees Union

(Tasmanian Division)

ABTEU Australian Boot Trades Employes' Union

ACOA Administrative and Clerical Officers'

Association (National Executive)

Act Conciliation and Arbitration Act 1094

ACTU Australian Council of Trade Unions

AEWL Association of Employees of Waterside

Labour

AID (NSW) Australian Institute of Drycleaning -

NSW

AIEU Australian Insurance Employees' Union

AILR Australian Industrial Law Reports

ALJ Australian Law Journal

ALR Australian Law Reports

AMPSSA AMP Society Staff Association

AMWSU Amalgamated Metal Workers' and

Shipwrights' Union

AN Australian National [Railways

Commission]

AREA Association of Professional Engineers,

Australia

APS A Association of Professional Scientists

of Australia

ARA Australian Retailers' Association

vii

ARU Australian Railways Union

ASC&J Amalgamated Society of Carpenters &

Joiners of Australia

ASOA Australian Shipping Officers'

Association

AWSB Australian Wool Selling Brokers'

Employers' Federation

Bridgestone Bridgestone Australia Ltd.

CACTI Confederation of A.C.T. Industry

CAI Confederation of Australian Industry

CAR Commonwealth and Arbitration Reports

CLR Commonwealth Law Reports

Commission Australian Conciliation and Arbitration

Commission

CSIROTA CSIRO Technical Association

DEIR Department of Employment and Industrial

Relations

ECU Federated Clerks Union of Australia

FEDFA Federated Engine Drivers' and Firemen's

Association of Australia

FLR Federal Law Reports

KB Kings Bench

MBFA Master Builders Federation of Australia

NLCC National Labour Consultative Council

NORA Non Official Postmasters' Association of

Australia

PC Privy Council

RANF Royal Australian Nursing Federation

see Sydney Chamber of Commerce

SDA Shop, Distributive & Allied Employees

Association

viii

TCOA Trustee Companies' Officers' Association

Telecom Telecom Australia

TWU Transport Workers' Union of Australia

WAGFM Western Australian Guild of Furniture

Manufacturers

WBSA Wool Brokers' Staffs Association

ix

SUMMARY OF OBSERVATIONS, CONCLUSIONS AND RECOMMENDATIONS

INDUSTRY-BASED UNIONS

1. The establishment of the Committee and its public

hearings gave to the industrial relations community a unique opportunity to express opinions on the subject of industry unionism (Para 3.28).

2. For the first time in such a forum as was provided by

the Committee various and indeed conflicting concepts of industry unionism were aired and the desirability of encouraging by legislation the development of industry-based unions was seriously questioned (Para 3.29).

3. The Committee is not opposed to industry-based unions. However after consideration of the submissions and evidence the Committee does not consider that the proposed legislation is the best method of providing changes in the structure of Australian

trade union organization (Para 3.30).

4. In the short term the proposed legislation, if enacted, would lead to dislocation and disruption and in the long term may not even result in the creation of structures 'which are more suited to a modern economy' as envisaged by the Government.

(Second Reading Speech, H of R Hansard. 25 March 1982, p. 1472.) On the contrary there is no guarantee that the proposed

legislation would not result in the creation of even more unions (Para 3.31) .

5. As has been noted elsewhere in this Report the

'conveniently belong' provision of the Conciliation and Arbitration Act has had the effect of limiting the number of organizations which could be registered and reducing the occasion for demarcation disputes. The Government's proposed

legislation provides that the 'conveniently belong' provision in the Act will have no effect where it might prevent the

registration of an 'industry organization' (Para 3.32).

6. The Committee also notes that the proposed legislation does not attempt to alter the provision contained in the Act since its inception requiring an organization to have enrolled only 100 members prior to making application for registration

(Para 3.33) .

7. For the purpose of giving effect to its policy

objectives in this area the Government's original proposal was for the establishment of enterprise unions. This proposal was widely condemned. However the Committee notes the comments made

xi

by the Minister in his second reading speech that 'the

Government's proposals in this area are being further developed in consultations with employer and union groups' (Para 3.34).

8. There is considerable doubt among the industrial

relations community that union structures predominately determine industrial relations outcomes. Evidence given to the Committee suggested that industrial relations in Australia might better be served by devoting some attention to employer organizations and to the status accorded industrial relations by many companies (Para 3.35).

9. Evidence was given to the Committee which persuades it to acknowledge the present difficulties posed by the Act in cases where members of separate unions have reasonably expressed a desire to effect an amalgamation of their unions. The

Committee, however, does not favour legislation which would allow for uninhibited amalagamations, and considers that amalgamations should only take place after a 'community of interest' test has been satisfied. The Committee is also of the view that the membership of unions proposing to amalgamate must be consulted and given an opportunity to express a view thereon. The Committee suggests that in elections where the membership is consulted on mergers, at least 25 per cent of the membership of each union should be required to record a vote, and of those voting, at least two thirds should be required to vote in favour of the proposition. An alternative could be for at least 25 per cent of the total membership of each union to vote in favour of amalgamation, provided that those voting in favour constitute a majority of the votes cast. The electoral rolls used in such procedures should be as up to date as practicable (Para 3.36).

10. The evidence presented to the Committee by both

employer and employee organizations supports the Committee's conclusion that there would be merit in further discussions taking place with the participation of the industrial relations community before further legislative action affecting employee or for that matter employer organizations is contemplated (Para 3.37) .

11. The evidence taken by the Committee supports the

Committee's view that the proposed legislation, as presently drafted, would, if passed, increase industrial disputation (Para 3.38) .

12. For the reasons outlined in this Report the Committee recommends that the Senate not pass the provisions of the Conciliation and Arbitration Amendment Bill 1982 relating to the encouragement of industry-based unions. In the interests of smooth industrial relations the Committee recommends that before any further legislative action is contemplated in this area the Government consult with the NLCC and registered organizations likely to be affected (Para 3.39).

xii

ABOLITION OF PREFERENCE

13. The Committee notes that the Government intends that its proposed legislation will weaken the power of the

Conciliation and Arbitration Commission to deal with union membership disputes. The Committee shares the view generally- expressed by witnesses that the proposed legislation would not

be conducive to industrial peace and would further unsettle the industrial relations climate (Para 4.45).

14. The Committee notes that the Government also intends its legislation to 1 provide a better balance in the powers, rights and duties of employers and employees'. Clearly this legislation would fundamentally disturb this balance in favour of employers. The Committee considers that the proposed legislation is an undesirable and unwarranted intervention into

the field of industrial relations particularly at a time when high levels of unemployment have already disturbed this balance (Para 4.46) .

15. The Committee believes that viable unions are essential for the operation of Australia's system of conciliation and arbitration (Para 4.47).

16. The Committee considers that the proposed section 144A would undermine this viability to an unacceptable extent and it recommends that it not be incorporated in the Act. For similar reasons the Committee recommends that the existing section 47

should be retained in the Act. Accordingly the Committee recommends that the amendments proposed by clauses 3, 4(2), 5, 7, 9 and 20 of the Conciliation and Arbitration Amendment Bill 1982 should not be incorporated into the Act (Para 4.48).

17. In his Second Reading Speech to the Commonwealth

Employees (Voluntary Membership of Unions) Bill 1982, the then Minister said that the Bill 'is ... designed to put into effect in the area of Commonwealth Government employment the principles proposed in the Conciliation and Arbitration [Amendment] Bill'.

For reasons outlined in [Chapter 4] the Committee recommends that the Senate not pass the Commonwealth Employees (Voluntary Membership of Unions) Bill 1982 (Para 4.49).

18. The Committee notes further that the Government intends that its legislation ensure ' the protection of the rights of the individual'. Some individuals are quick to recognize their

perceived rights but are not also as quick to recognize their duty to associate with others for the common good. In addition there is a distinction between personal choice based on conscientious belief on the one hand and the dictates of

self-centred individualism on the other (Para 4.50).

19. The Committee acknowledges the need to retain the

status of conscientious objection to union membership which is

xiii

presently provided for in section 144A. However it believes that a less fundamental objection to union membership should also be recognised, namely that a person holds principles or beliefs which prevent membership of unions. The Committee considers that

such persons should be entitled to be exempted from membership provided that they contribute a fee for the services provided by the appropriate union, to that union. This fee would be settled

in each case by the Industrial Registrar. It would be based on the standard membership fee which would be reduced by a maximum of ten per cent to take account of contributions made by the union to political parties and other expenditures which were unrelated to the direct provision of industrial or welfare services to members. The fee for service could only be applied by the union for the provision of industrial or welfare

services. The Committee recommends that section 144A should be amended to recognise this alternative ground of objection to union membership (Para 4.51).

20. The submissions and evidence received by the Committee were extensive and raised complex issues. In addition, matters outside the Committee's terms of reference were raised including questions of coverage of non-employees by registered

organizations and the protection of conscientious objection rights of persons not covered by the constitutions of registered organizations. The Committee considers that all of the proposals and issues would benefit from further study by the industrial relations community, and therefore recommends that there be consultation between the Government and the NLCC before further legislative initiatives are contemplated (Para 4.52).

STAND-DOWNS

21. The Committee is unable to form an opinion from the

evidence whether 1 the right of employers to stand-down employees as a result of industrial action without reference to the Conciliation and Arbitration Commission is consistent with modern industial practices'. It is the Committee's opinion, however, that the provisions of the Conciliation and Arbitration Amendment Bill 1982 as drafted, would erode the authority of the Commission, and would deny natural justice to aggrieved and unfairly treated employees. The Committee considers that the provisions of the Bill would not 'contribute to industrial peace', but would create industrial instability (Para 5.43).

22. The Committee therefore recommends that the provisions in the Conciliation and Arbitration Amendment Bill 1982 which provide for 'automatic stand-downs' be not passed by the Senate (Para 5.44).

23. The major concern of employers with respect to the

current stand-down provisions are the perceived delays which occur in proceedings taken pursuant to section 33A of the

xiv

Conciliation and Arbitration Act 1904. The Committee has accordingly made some suggestions as to how the current Act might be amended to overcome these concerns (Para 5.45).

24. The Committee suggests that a course of action that

takes account of the concerns underlying the provisions of the Bill would be for the existing section 33A to be tightened so as to require the initial hearing of applications for the insertion of stand-down clauses to take place within two working days

after lodgement. Determination would follow as soon as possible thereafter depending on the surrounding circumstances. A right of appeal to the Full Bench would remain in section 33A. It would be exercisable within twenty one days and appeals would have to be heard within three working days of lodgement. Appeals would not be subject to the restrictions imposed by section 35

(Para 5.46) .

25. The Committee considers that it would be desirable for these issues and proposals to be the subject of consultation between the Government and the NLCC and it recommends this course accordingly (Para 5.47).

OTHER PROVISIONS OF THE CONCILIATION AND ARBITRATION AMENDMENT BILL 1982

Common Rule Procedures

(Sub-clause 2(3) and clause 8 of the Conciliation and

Arbitration Amendment Bill 1982).

26. The Committee recommends the adoption of these

provisions (Para 6.29)

Financial Assistance

(Clauses 15, 28 and 29 of the Conciliation and Arbitration Amendment Bill 1982)

27. The Committee notes that in his second reading speech the then Minister referred to these measures as enlarging the scope for financial assistance and as a consolidation exercise. To the extent that they achieve these objectives the Committee

recommends their adoption. However the Committee notes that certain existing rights to financial assistance in relation to election inquiries are limited by the provisions under consideration and recommends that the Government redraft these provisions to ensure the maintenance of existing rights (Para

6.30) .

Term of Office

(Clause 11 of the Conciliation and Arbitration Amendment Bill 1982)

xv

28. The Committee recommends the adoption of this clause (Para 6.31) .

Casual Vacancies

(Clause 12 of the Conciliation and Arbitration Amendment Bill 1982)

29. The Committee recommends the adoption of the provisions of this clause insofar as it is designed to remove doubts in relation to the filling of casual vacancies under well

established collegiate systems of electing officials of organizations of employers or employees

However the Committee recommends that the Government redraft he relevant provisions to enable the greater flexibility sought by major employer and union organizations (Para 6.32).

De-registration

(Clauses 4, 5, 13, 14, 17 and 22 of the Conciliation and

Arbitration Amendment Bill 1982)

30. The Committee endorses the view that, where a State

union is de-registered in its own jurisdiction for actions inimical to the interests of the State jurisdiction and the parties thereto, such union should not be able to move into the Federal jurisidction to avoid the consequences of its actions.

The Committee considers that this view is shared by all

responsible participants in both the Federal and State industrial relations systems but submissions made to the Committee cast doubt on the efficacy of the proposals under consideration.

The then Minister advised in his second reading speech that the provisions require reciprocal State legislation and that the Government proposes to raise this question with State Ministers for Labour.

The Committee considers that the proposals would also benefit from further detailed study by the industrial relations community and in particular recommends that the Government canvass these proposals with State Ministers and the NLCC prior to their final consideration by the Senate (Para 6.33).

xvi

CHAPTER 1

INTRODUCTION

BACKGROUND TO THIS REPORT

1.01 This is the Second Report of the Senate Select

Committee on Industrial Relations Legislation to be presented to

the Senate. The first Report, entitled 1 Interim Report - September 19821 was presented on 7 September 1982 in accordance

with the Resolution of the Senate of 5 May 1982 establishing the Committee. On 8 September 1982 the Senate varied the Resolution

establishing the Committee to enable it to present a Final

Report by 26 October 1982.

1.02 The Interim Report dealt primarily with two matters. It drew the Senate's attention to evidence received by it indicating that there were concerns about the legal

ramifications of proposed section 4B contained in the

Conciliation and Arbitration Amendment Bill 1982. The Interim

Report also recorded that a majority of the witnesses presenting evidence to the Committee were of the opinion that the major

purposes the Bills were meant to achieve would, in a variety of ways, further disturb the currently unsettled industrial climate

and would not contribute to industrial peace. The Committee reported then that it had formed no concluded view on those

submissions but, because of their significance in relation to

the Committee's terms of reference, wished to note them at that

stage, and advise the Senate that it required further time to

evaluate the complex issues which were involved.

1

....

1.03 This Report addresses itself in detail to the

provisions of the Bills and the matters referred to in the

Committee in connection with them, as set out in the Committee's

terms of reference:

That:

(a) the Conciliation and Arbitration Amendment Bill 1982 and the Commonwealth Employees (Voluntary Membership of Unions) Bill 1982 be referred to a Select Committee;

(b) the Select Committee to report to the Senate on or before 26 October 1982;

(c) in considering the Bills, the Committee give particular consideration to

(i) the desirability or otherwise of

encouraging the development of industry-based unions in Australia, and the best methods of providing

changes in the structure of Australian Trade Union organization,

(ii) whether the provision of 1 voluntary unionism' and the removal of power to award preference to unionists will contribute to industrial peace and an

improvement of the industrial

relations climate, and

(iii) whether the right of employers to stand-down employees as a result of industrial action without reference to the Conciliation and Arbitration Commission is consistent with modern

industrial practices, and will

contribute to industrial peace.

CONDUCT OF THE INQUIRY

1.04 Since the Committee's formation it has received 71

submissions and has heard 42 witnesses at 5 public hearings. The

Committee is grateful to all those persons and organizations who

have assisted in the provision of written and verbal evidence.

2

The Committee was not however entirely satisfied with the

evidence given to it by the Department of Employment and

Industrial Relations (DEIR), the Attorney-General, or his

Department (see Interim Report). Against that background the

Committee provided the Prime Minister, the Minister for

Employment and Industrial Relations and the Acting

Attorney-General the opportunity to add to the Government's

evidence to the Committee and to comment on the Interim Report.

The Committee received responses from the Minister for

Employment and Industrial Relations and the Acting

Attorney-General. Their additional comments were then taken into

consideration in the preparation of the Final Report.

1.05 A number of issues raised in the Interim Report and

explanations as to how the Committee proceeded to undertake its

task, are not duplicated here. It is important therefore that,

for a complete picture of the Committee's work to be obtained,

the Committee's Interim Report and this Final Report be

considered together.

APPOINTMENT OF ADVISER

1.06 In its Interim Report the Committee reported that, to

assist the Committee in its consideration of the Bills, Mr Richard Tracey, Senior Lecturer in Law, University of Melbourne,

was appointed as adviser to the Committee. Because of the

extension of time granted to the Committee Mr Tracey's term as

adviser was renewed to assist in the preparation of a Final

Report to the Senate. We are indebted to Mr Tracey for his

advice and assistance throughout the inquiry and in the

preparation of the Interim and Final Reports.

3

STAFF

1.07 The Committee acknowledges the invaluable assistance

provided by the Secretary to the Committee, Mr Ronald Wiber and

by its Research Officer, Mr Elton Humphery, and also by its stenographer Ms Penny Hamilton. The work of Hansard staff in producing proof copies of Hansard in time for the Committee to

meet its deadline deserves special mention and thanks.

BACKGROUND TO THE LEGISLATION

1.08 In its consideration of the Conciliation and

Arbitration Amendment Bill 1982 and the Commonwealth Employees (Voluntary Membership of Unions) Bill 1982, the Committee received submissions and evidence from major employer and union

groups which raised questions going to the heart of the

Australian system of conciliation and arbitration.

1.09 Together, the sum total of submissions and oral

evidence provide a unique and substantial body of opinion and knowledge which will be of considerable value to the Parliament,

Government, general public, and the industrial relations

community in particular, in discussions on the operation of the conciliation and arbitration system.

1.10 In the 78 year history of the Conciliation and

Arbitration Act 63 amending acts have been passed, 14 of them in

the last 6 years. For the purpose of streamlining what was then

described as "a complicated and cumbersome Act" the then

Minister for Industrial Relations announced the appointment of Mr Richard Searby of the Victorian Bar and former Deputy President Taylor as consultants to the Department of Industrial

Relations to make recommendations as to how the Act and

Regulations could best be simplified and clarified and to

formulate proposals for the integration of the large number of

4

amendments into a more coherent and cohesive legislative

framework (H of R Hansard 9 April 1981) . The Report of the

consultants was made on 26 October 1982.

1.11 Subsequent statements were made by Government

Ministers that the Conciliation and Arbitration Act would be

reviewed more fundamentally, the latest of which was by the

current Minister for Employment and Industrial Relations on 24 September 1982. In an address to the American Chamber of

Commerce in Australia the Minister said:

... I have asked my Department to undertake a wide-ranging review of our existing industrial relations system. I have had discussions with the NLCC on the way this study will be carried out. It will be an

internal review, although of course we will be consulting closely with the industry parties because of the comprehensive nature of the exercise. I expect that it will take

some time to complete.

1.12 The Committee commends the Minister for his statement to the Chamber of Commerce where he said:

If Government's are to work to improve our system we are dependent on the advice of the major parties.

1.13 Perhaps, as one witness said, Australia is not short

on Industrial Laws, but is short on Industrial Relations.

5

CHAPTER 2

THE FEDERAL CONCILIATION AND ARBITRATION SYSTEM

ORIGINS AND OVERVIEW

2.01 In the 78 years since the passage by the Australian

Parliament of the Commonwealth Conciliation and Arbitration Act

1904, the federal system of compulsory conciliation together

with final and binding industrial arbitration has directly ensured minimum wages and work rules for almost half of the

nation's work force and has indirectly affected the remaining workers under State control. The hub of the federal machinery,

the Conciliation and Arbitration Commission, is one of

Australia's most important tribunals. Its wage decisions are as

significant for the nation as the many economic and monetary

decisions emanating from the federal government.

2.02 In the constitutional debates of 1897 and 1898 in which

the Australian Constitution was framed it was by the pressure of

two extraordinary men that the industrial power was placed in

this document. The two men concerned were Robert Kingston (then Premier of South Australia) and Henry Bournes Higgins (then a Victorian politician and later the second president of the Commonwealth Court of Conciliation and Arbitration) who argued

that the Australian Parliament required power to settle labour relations disputes which crossed State boundaries and which

could not be settled by a single State government. The framers

of the Constitution had vivid memories of the labour disputes of

1890 and 1891 in the pastoral and shipping industries which

shook the nation from Hobart to north Queensland and they came

to the realisation that the new Australian government should be

given power to prevent such cataclysms which might occur in the

future.

7

2.03 Hence, when the Australian Constitution came into force

on New Year's Day 1901, the Australian Government was given

power to settle interstate labour disputes. Section 51 (xxxv) of the Constitution read:

51. The Parliament shall, subject to this

Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

(xxxv.) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.

These 19 words of industrial power have, through constitutional

decisions from the High Court of Australia, widened the

Australian government's power over industrial relations, beyond

the wildest dreams of its early proponents Kingston and Higgins.

2.04 In 1904 the Australian Parliament passed the

Commonwealth Conciliation and Arbitration Act which remains in

force although it has been more extensively amended than any

other piece of federal legislation save only the statutes dealing with direct and indirect taxation. Sixty-three amending Acts have been passed, fourteen of them in the past six years, For an account of these amendments see CCH, Conciliation and Arbitration Act 1904 (5th ed., 1981) pp 51 091-51 102.

2.05 The original Conciliation and Arbitration Act

established the Commonwealth Court of Conciliation and Arbitration whose function it was to settle interstate labour

disputes through conciliation and, where necessary, binding arbitration, by laying down a federal award which is a minimum

wage and work rule code for the relevant industry. The Court had in effect been delegated power by the Australian Parliament to

8

make laws regulating the various industries which came under its

jurisdiction. These awards were federal law and due to section

109 of the Australian Constitution, they displaced any State

laws or awards which had regulated industry in the past.

Section 109 reads:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Again, favourable High Court decisions relating to the scope of section 109 have greatly increased federal power over labour relations. Once an award was in place the Court had the power to

enforce compliance with its terms by means of the traditional

legal remedies of injunctive orders and monetary penalties.

2.06 In 1956 in R v Kirby: ex parte The Boilermakers'

Society of Australia (1956) 94 CLR 254(HC); sub-nom (1957) 95 CLR 529 (PC) (the Boilermakers' case) the High Court and the Privy Council declared that the Commonwealth Court of

Conciliation and Arbitration was unconstitutional. The judges

held that the Arbitration Court, which performed the functions of (1) arbitrating and handing down awards and (2) punishing

award breakers, was undertaking both administrative and judicial

functions. The Boilermaker's case held that under the separation of powers doctrine in the Australian Constitution, a court cannot co-mingle administrative and judicial powers. The Conciliation and Arbitration Act was amended and the government

created the Conciliation and Arbitration Commission, a tribunal

now having the power through conciliation and arbitration, to

hand down federal awards. The Industrial Court was created to

carry out the judicial functions of enforcing and interpreting

federal awards. In 1976 the functions of the Industrial Court

were given to the Industrial Division of the newly created

Federal Court of Australia.

9

2.07 The Conciliation and Arbitration Commission is, at

present, constituted by a president, 10 deputy-presidents and 24

commissioners. Before 1956 all the presidential members of the

old court had the status of judges for they had all received

legal training, though lay commissioners were also attached to the court. Such was the hold of lawyers over the arbitration process, that with the creation of the Conciliation and

Arbitration Commission its presidential members required legal training as a necessary precondition for their appointment and

they retained the status of judges. But in 1972 the legislation

was altered. The president still must have previously been a barrister or solicitor of at least five years standing. Now, under section 7 of the Act, deputy-presidential members need

only have experience in industrial relations or have undertaken studies in law, economics, industrial relations, or some other

field of study of substantial relevance at least five years

prior to appointment. Commissioners need not have any formal

qualifications before their appointment. However, to date, all appointees have had experience in industrial relations.

2.08 The Commission is presently divided up into task forces

by the president who assigns a presidential member and at least one commissioner to an industry or to a group of related

industries. When an industrial dispute occurs either the trade

union or the employers' association may notify the relevant

presidential member but under section 25 of the Act the

Commmission may take jurisdiction over an industrial dispute of its own motion. The relevant presidential member will usually

either deal with the matter or ask a commissioner to attempt

conciliation between the parties. If the parties agree on some of the matters before them, they may either sign a memorandum of

agreement and have it certified by the Commission, or ask a

member of the Commission to make a consent award to bind all the

relevant parties. Where the parties cannot agree on all their differences, then a member of the Commission may arbitrate on

10

the matters (See sections 25-30 of the Act). Often the

conciliation and arbitration proceedings are merged and informal

(Cupper, 'Legalism in Australian Conciliation and Arbitration

Commission: The Gradual Transition1 (1976) 18 Journal of Industrial Relations 337).

2.09 Important matters coming before the Commission are

dealt with by a Full Bench which, under section 17 of the Act

must consist of at least two presidential members and one other member of the Commission. Under section 31, cases involving

national rates of wages, hours of work, annual leave and long

service leave, must be heard by a Full Bench. Parties who are dissatisfied by a decision of a single member may appeal the

matter to a Full Bench (See section 35 of the Act). In addition, the Act makes provision for a reference of significant issues to

a Full Bench before they are resolved by a single member (See

sections 34 and 34A). Further, the Australian Government may

intervene in any proceeding before the Commission and may either

take the matter on appeal to the Full Bench or ask the Full Bench to review a matter which has been decided by a single member of the Commission (See sections 36 and 36A of the Act).

2.10 The Industrial Division of the Federal Court of

Australia exercises judicial power within the system. The Federal Court was created by the Federal Court of Australia Act

1976. It consists of a chief judge and a number of other judges. It is divided into two divisions, the General Division and the

Industrial Division. The latter division exercises jurisdiction

under the Conciliation and Arbitrati on Act. It has the power,

amongst other things, to interpret awards (see section 110 of

the Conciliation and Arbitration Act) and to enforce compliance

with awards (See sections 119 to 122). Under Parts VIII-IXA of

the Act, the Federal Court is given power in relation to the

rules, accounts and the election procedures of registered

organizations. These registered organizations are trade unions

and employer associations who have been registered under the Act

by the Industrial Registrar (See Parts VII and VIII of the Act).

11

2.11 The Australian Parliament has other constitutional

powers which may be used as a basis for labour relations

legislation. It has further section 51 powers which are:

(i) Trade and commerce with other countries, and among the States;

(vi) The naval and military defence of the Commonwealth and of the several States, and the control of the

forces to execute and maintain the laws of the

Commonwealth;

(xx) Foreign corporations, and trading or financial corporations formed within the limits of the

Commonwealth;

(xxxix) Matters incidental to the execution of any power

vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any

Department or officer of the Commonwealth.

The trade and commerce power has been used to control the stevedoring, maritime and airline industries, but all have been

linked to the Conciliation and Arbitration Act (See Part III, Divisions 2 and 4 and Part IIIA of the Act) . The defence power

has been used in war time but the corporations power has not,

until recently been used to control labour relations. In 1977 it was relied upon when Parliament included a new section 45D in

the Trade Practices Act 1974 to regulate union secondary boycott

practices. The incidental power of section 51(xxxix) has been

used widely. Section 52 of the Constitution gives the

Commonwealth power to control the terms and conditions of its

employees. It reads in part:

12

52. The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good

government of the Commonwealth with respect to -

(ii) Matters relating to any department of the public service the control of which is by this Constitution transferred to the

Executive Government of the Commonwealth.

In regulating its public servants, the Commonwealth has also

utilized the conciliation and arbitration machinery (See the

Public Service Arbitration Act 1920).

2.12 It would be possible for the Australian Government, if

it so desired, to use the trade and commerce and the

corporations powers, together with its public service powers, to

establish a collective bargaining process in Australia (See S.D.

Hotop 'The Federal Commerce Power and Labour Relations' (1974)

4 8 ALJ 16 9; J. O'Donovan ' Can the Contract of Employment be Regulated Through the Corporations Power?1 (1977) 51 ALJ 234) , But no government has ever attempted to carry through such a

scheme. Over the last three-quarters of a century, this nation

has been wedded to the concept of conciliation and arbitration.

Public opinion continues to favour its retention. Unless

unforeseen economic and social upheavals occur this system is

likely to continue into the next century.

13

CHAPTER 3

INDUSTRY-BASED UNIONS

THE BACKGROUND

3.01 The desire to restructure Australian trade unionism is

by no means a recent phenomenon. The proliferation of small

craft unions was of such concern to the second Inter-Colonial

Trade Union Congress, held in Melbourne in 1884, that it resolved to recommend that unions amalgamate within 1 trade'

groups (J.T. Sutcliffe, A History of Trade Unionism in

Australia, p. 114) . For a variety of reasons, which will be

canvassed later in this Chapter, this recommendation failed to

be translated into action. Indeed the 1 problem' which it

addressed worsened. More occupation based unions came into existence. As one method of achieving the objective of 1 the socialisation of industry1 the original 1927 ACTU constitution

adopted ' the closer organisation of the workers by the

transformation of the trade union movement from the craft to an

industrial basis, by the establishment of one union in each

industry1 (J . Hagan, History of the ACTU. p. 455). Similar

provisions appear in the current Constitution, Rules and

Standing Orders of the ACTU with the important modification that

the words 1 or sector1 appear after 1 industry1. There have been

few examples of member organizations of the ACTU seeking to give

effect to these provisions. Advocacy of structural change

persists. In the past decade no fewer than three reports to the

Federal Government have supported the concept of union

amalgamation along 1 industry1 lines (see below paragraph 3.14).

15

3.02 The variations in the numbers of unions and union

members in Australia since 1891 are shown in Table 3Δ which is

taken from B. Dabscheck and J. Niland Industrial Relations in Australia p . 106.

16

TABLE 3A

MEMBERSHIP OF AUSTRALIAN TRADE UNIONS, 1891 to 1979

Year

No. of of unions

Total members ( '000)

Total members as % of total employees

Male members as % of male

employees

Female members as % of

female employees

1891 124 54.9 4.1 n.a. n.a.

1901 198 97.2 6.1 n.a. n.a.

1911 573 364.7 27.9 n.a. n.a.

1919 394 627.7 50.0 55.5 26.3

1927 369 911.7 58.0 62.6 39.6

1934 355 762.6 42.6 46.0 33.4

1942 377 1182.4 52.6 54.6 45.9

1953 365 1679.8 63.0 67.0 40.0

1960 363 1912.4 58.0 65.0 41.0

1970 347 2331.4 49.0 56.0 36.0

1975 317 2834.2 56.0 62.0 46.0

1979 315 2855.1 55.0 60.0 47.0

Note: n.a. = not available. Figures prior to 1911 need to be treated with some caution as the branches of trade

unions in the various states (and colonies) were

counted as separate entities.

17

It will be observed that the number of unions grew from 124 in !

1891 to a peak of 573 in 1911. Thereafter a steady decline in

numbers occurred. During the same period the number of union

members increased progressively. The trend has thus been towards

an increase in the membership of a declining number of

individual unions. As will be seen, however, this trend has not - been reflected uniformly as between unions and a small number of

very large unions represent most of the unionised workforce (see

below paragraph 3.09).

3.03 The extraordinary growth in union numbers in the twenty

years from 1891 was largely attributable to the advent of

systems of conciliation and arbitration at Commonwealth and State levels. Since the successful operation of these systems depended on the participation of representative organizations

few obstacles were placed in the way of unions which wished to

register. The original Conciliation and Arbitration Act provided

that 1 any association of not less than one hundred employees in

or in connexion with any industry1 could be registered under the Act (sub-section 55(1)). The Registrar could refuse an application under sub-section 55(1) 1 if an organization, to which members of the association might conveniently belong [had]

already been registered in the State in which the application [was] made1 (section 59). The legislation thus protected the security of registered organizations by erecting barriers

against the later registration of other unions which wished to enrol members in a field already covered by a registered union

within a State. It left open the possibility of different unions covering the same trades and occupations in different States and

indeed within States. The continuity of a registered

organization's existence was not therefore dependent on its size

or the width of its 1 coverage1 clause. The existence of a multiplicity of small unions was fostered by the Act.

18

3.04 Subsequent amendments to the Act sought to arrest the

growth of union numbers. In 1909 section 55 was amended to

require the Registrar to refuse applications for registration

where another union was in existence to which the proposed

organization's members could conveniently belong 'unless in all

the circumstances he thinks it undesirable so to do'. In addition, the reference to States was omitted (Act No 28 of 1909

section 4) . The objective of these amendments was to overcome

the undesirable aspects of competition between unions for

members and to give effect to the principle that there should

only be one registered union to represent workers who were

performing the same function (Australian Ship and Wharf Workers' Association v Waterside Workers Federation (1919) 13 CAR 4) . In

1911 controls were introduced over the change of an

organization's name (Act No 6 of 1911, section 19) and in 1914

those controls were extended to changes in rules which described

the industry from which a union drew its members (Act No. 18 of

1914, section 14). These measures were also designed to ensure

that only one union had coverage of any area of employment.

3.05 Most of the unions registered under the federal system

in its formative years were craft or vocationally oriented. Such

unions remain in the majority to this day.

3.06 The decline in union numbers in the period immediately after 1911 is attributable partly to a series of voluntary

amalgamations. However from then until the 1960's few successful

mergers occurred. Some notable amalgamations took place between

1965 and 1972 (D. Khoury, ' The Federal Law Relating to Union

Amalgamations in Australia: Help or Hindrance?' (1978) 20

Journal of Industrial Relations 56, 59). The Act placed few

impediments in the path of unions which were seeking to

amalgamate. Prior to 1972 amalgamations between registered

organizations presented minimal procedural problems. One

organization would apply to expand its 'coverage' clause so as

to embrace the other's membership. The other union would not

19

resist the application. Once the change was approved the other

union would apply to have its registration cancelled and then the two bodies would merge their affairs.

THE PRESENT POSITION

3.07 The current Act contains provisions relating to the

registration and protection of unions which are based on those contained in the original Act.

(1) Registration. Section 132 of the Act provides for the

registration of any union which has at least one hundred members who are engaged in an industry or industrial pursuits.

(2) Protection of registered organizations. Section 142

provides that the Registrar 1 shall, unless in all the

circumstances he thinks it undesirable so to do, refuse

to register any association as an organization if an organization, to which the members of the association might conveniently belong, has already been

registered' . This provision has in practice generally

served to limit the number of unions and to prevent the

emergence of competing unions thus reducing the likelihood of demarcation disputes (Sykes and Glasbeek,

Labour Law in Australia, pp. 725-7). Section 139 of the Act and the related Regulations require that the

Registrar must approve of any changes to 1 coverage1

clauses in the rules of registered unions. Applications

must be advertised. Objectors must be heard. A ground

for objection is the existence of an organization which

already has coverage of the area into which the

applicant union wishes to expand.

20

3.08 In 1972 a new Part VIIIA was added to the Act. It

established a detailed code to regulate the amalgamation of

registered organizations. Perhaps its most important element is

contained in sections 158K and 158N which make it a prerequisite for most amalgamations that at least half of the members of each

of the unions involved must vote in a ballot held to determine their wishes and that at least half of the members of each union who do vote must favour the proposal. An exception is made in the case of a proposed amalgamation between two unions, one of

which has a membership which is less than five per cent of the

membership of the other. In such cases a ballot of the members

of the smaller union only is required. The only amalgamations

which have taken place since 1972 have been between unions which have been able to take advantage of this exception. Other

attempts at amalgamation have failed to proceed because of

anticipated or actual difficulty in satisfying the voting

requirements of section 158N (Dabscheck and Niland, op cit, p.

117) .

3.09 The Department of Employment and Industrial Relations advised the Committee that there were 151 trade unions

registered under the Conciliation and Arbitration Act at June

1982. In December 1981 there was a total of 324 unions in

Australia, including both state and federally registered trade unions, which had a total of 2,994,100 members: 56 per cent of

the total workforce. Distribution of the membership of unions is

uneven. The results of a survey reported in Dabscheck and

Niland, o p cit p. 110 appear as Table 3B.

21

TABLE 3B

SIZE DISTRIBUTION OF AUSTRALIAN TRADE UNIONS, DECEMBER 1979

No. of separate unions

Proportion of total unions (%)

No. of members ( 1 000)

Proportion of total members (%)

Under 100 32 10.2 1.7

100 to 249 39 12.4 6.0 0.2

250 to 499 27 8.6 10.0 0.3

500 to 999 46 14.6 30.4 1.1

1000 to 1999 45 14.3 62.4 2.2

2000 to 4999 45 14.3 151.9 5.3

5000 to 9999 19 6.0 147.8 5.2

10 000 to 19 999 24 7.6 360.9 12.6

20 000 to 29 999 10 3.2 250.4 8.8

30 000 to 39 999 5 1.6 174.3 6.1

40 000 to 49 999 9 2.9 410.5 14.4

50 000 to 79 999 7 2.2 450.7 15.8

80 000 and over 7 2.2 798.1 28.0

TOTAL 315 100.0 2855.1 100.0

Source: Australian Bureau of Statistics, Trade Union

Statistics, Australia, December 1979, Canberra

(Catalogue No. 6323.0).

22

It will be seen that almost half of Australia's trade unions in

1979 had fewer than 1,000 members. They covered less than 2 per cent of all trade union members. On the other hand fourteen

unions with memberships exceeding 50,000 represented some 44 per

cent of total union membership.

THE PROPOSED AMENDMENTS

3.10 The Conciliation and Arbitration Amendment Bill

contains a series of amendments to the Act which are designed to

facilitate the formation of 1 industry1 unions. The central

provision appears in clause 10. It would introduce a new

paragraph (d) which would be included in sub-section 132(1) of

the Act. This would enable the registration under the Act of:

(d) Any association the membership of which consists of -(i) not less than 100 employees, where the Registrar is satisfied that -

(A) all those employees are employed in a single industry, being an

industry consisting of a prescribed class of business, trade,

manufacture, undertaking or calling of employers;

(B) those employees constitute a

substantial majority of the total number of persons employed in that industry; and

(C) the association is capable of

satisfactorily representing the interests of all those persons;

(ii) persons, if any, who are employees who are qualified to be employed in that industry; and

(iii) other persons, if any, who are officers of the associaton.

23

The prescription of an industry is a matter which is left for

subordinate legislation. The Government has announced that the

identification of prescribed 'industries' will take place after

consultation with peak employer and union bodies within the

framework of the National Labour Consultative Council (DEIR Evidence, p. 1256).

3.11 The Bill contemplates three methods of establishing 'industry' unions.

(1) The amendment to section 132 which is set out in the

preceding paragraph will permit the formation of new unions within industries.

(2) An existing union may alter its rules so that it is

able to represent all employees in a particular

industry. If it wishes to do this it will be freed of

the constraints imposed by section 139 and be required

to comply only with a new section 139A (Clause 14 of the Bill) which imposes a positive obligation on the Registrar to register the changed rule unless it has

not been made in accordance with the union's rules or it has implications for State-registered unions. Notably absent is any right of other unions to object to the alteration on the ground that they already

represent the workers who would be eligible to be added

to the membership of the union which is making the

alteration. This right may be granted by Regulations.

However, the proposed sub-section 139A(4) foreshadows

Regulations only in relation to the making of

applications for certification of altered eligibility rules.

24

(3) Existing unions may amalgamate to form industry unions.

If unions wish to do this they will be assisted by an

amendment to section 158N which reduces to one quarter

the number of members who must vote in the ballot to

approve the amalgamation.

3.12 The amendments are facilitative in nature. They will

enable unions to become industry unions on a voluntary basis.

However if some unions move to displace others there will be

little statutory protection for the unions which stand to be

superseded. The existing legislation with respect to the

registration of organizations and the certification of rule changes remains intact but can be by-passed in the process of establishing industry unions.

THE SUBMISSIONS MADE TO THE COMMITTEE

3.13 The Committee received a wide range of conflicting

submissions in relation to industry unionism ranging from vigorous opposition to committed support. Some of the evidence given to the Committee was qualified because those giving it were uncertain as to which 'industries' would be recognised in

subordinate legislation and as to how the Government's proposals

would be implemented in practice.

3.14 The Department, in its submission, advised the

Committee that the Government's proposals arose out of difficulties arising within Australian industry as a result of

the present structure of trade unionism. These difficulties had been identified and commented upon in reports to Government: the

Committee to Advise on Policies for Development of Manufacturing

Industry (AGPS 1975, pp. 111-12); Report of the Royal Commission

on Australian Government Administration (AGPS 1977, p. 291);

Inquiry into Technological Change in Australia (AGPS 1980, pp.

138-142) . They included:

25

(1) demarcation disputes between unions with overlapping eligibility for membership rules;

(2) inefficient use of the finite resources available to Australian trade unions from what are presently often small and fragmented memberships;

(3) problems in negotiations between

employers and trade unions as to terms and conditions of employment arising from the multiplicity of trade unions not only within an industry but often a particular enterprise;

(4) lack of identification by trade unions which have a membership in several

industries with the interests of a given industry;

(5) rigidity in the structure of an

industry's workforce arising from the understandable reluctance of unions to accept workers moving from their area of coverage to that of other unions within

the industry;

(6) the possibility of flow on of wage

levels appropriate to one industry to another industry without proper

consideration of their appropriateness in the context of the second industry; and

(7) the possibility of wage leap frogging within an industry resulting from the multiplicity of trade unions.

(DEIR Evidence, pp. 1254-55).

The Department also told the Committee that the concept of

industry unionism was supported by the CAI and the ACTU (DEIR

Evidence, p. 1253) but the ACTU denied that it supported this concept. A resolution to this effect was carried at the ACTU Executive Meeting held between 16-20 August 1982.

26

Employer attitudes

3.15 The CAI and most, though not all, employers supported

industry unionism in principle while acknowledging that any developments in this direction would be beset by practical

problems for a variety of reasons (see e. a ■ CAI Evidence, p .

1092; SCC Submission 61, p. 4).

3.16 Employer support was based on the belief that industry

unionism would overcome some of the difficulties which were created for employers who had to deal with more than one union.

In addition to the problems identified in the various reports to the Government the employers listed:

(1) Competition between trade unions to secure better wages and working

conditions for their members in the same industry or enterprise, leading to instability in industrial relations; and

(2) The inability of trade unions and

employers in particular industries and enterprises to develop a common

understanding of the realities facing that industry or enterprise.

(See CAI Evidence, pp. 1091-92)

Employee Attitudes

3.17 The union movement supported the concept of

rationalisation of the structure of Australian unionism but

doubted that this was the intention of the Government. Moreover

it objected to the method which had been chosen by the

Government which was contrary to the expressed view of the NLCC.

It also attacked some of the premises on which the Government

and employer submissions were based.

27

Practicality

3.18 The ACTU told the Committee that

the main obiection to the proposed

leaislation desianed to encouraae the creation of industry based unions ip

Australia is a practical one. A move towards industrial unionism (that is, one union for all employees in the same industry regardless of occupation) would involve a drastic change in trade union organisation given the present craft or occupational basis of most unions. To achieve genuine industry unions it would be necessary to slice off sections of

existing unions and to put them into new

unions. Such actions would be strongly

resisted by unions and their members and would be impossible to achieve without

massive coercion.

(ACTU Evidence, pp. 624-25).

This submission was supported by reference to the Report of the

Royal Commission on Trade Unions and Employer Associations in Britain which concluded that industry unionism was practically unattainable (ACTU Evidence, p. 625).

3.19 The impracticality of the proposal in the face of union opposition was a consistent theme of union submissions. It was suggested that few unions would take advantage of the new

legislation. If any did it was anticipated that the result would

be overlapping coverage between the new 1 industry' unions and

existing unions because the limitations on registration, imposed

by section 142, would not apply to the formation of industry

unions. Inter-union disputation would be worsened rather than

improved (ACTU Evidence, pp. 628-29). Furthermore, the ACTU

warned of the possibility of further proliferation of unions as new, small unions emerged in connection with new industries such

as the microchip industry (ACTU Evidence, p. 628).

28

The defining of industries

3.20 Concern was expressed that 'industries' would be

difficult to define. The Australian National [Railways

Commission] , for example, had trouble in envisaging how its

operation would be regarded for these purposes. Possibilities

which it canvassed included the 'transport' industry, the 'rail'

industry, the 'government service' industry, and the 'metal' industry (AN Submission 45, pp. 12-16). Employers were also

worried that industry definitions would not provide scope for

the separate organizational representation of management and

supervisory staff (Telecom Submission 56, p. 3; AEWL Evidence,

p. 486) .

3.21 Unions agreed that 'industries' would be difficult to

define. Some said that they could not comment on the

desirability of industry-based unions unless they knew what

definitions emerged (see e.g. AMPSSA Submission 63, p. 2; ECU

Evidence, pp. 370-71).

The interest of members of craft and occupational unions

3.22 Many craft unions indicated to the Committee that they

would vigorously oppose merger with other unions. Among these unions were the Amalgamated Society of Carpenters and Joiners of

Australia, the Victorian Operative Bricklayers' Society, the

Victorian Plaster Industry Workers' Union, the Slaters, Tilers and Roofing Industry Union of Australia and the Victorian

Plasterers' Society. Their reasons included:

(1) The loss of identity associated with mergers and the

lack of attention to members' peculiar problems which

would result;

(2) The loss of flexibility of movement for members who

frequently move across 'industry' bounds;

29

(3) Unwillingness to merge with large, politically militant

unions; and

(4) The loss of craft skills and the consequent

deterioration of service to the public.

(See e.g. Evidence, pp. 554-48, 1200-08.)

Professional societies and organizations gave evidence in which

they made a number of points similar to the craft unions. In

addition the evidence showed that they provide their members with specialised professional and educational services which a

conglomerate union may not be able to provide (see e.g. APEA

Evidence, pp. 823-24; PANE Submission 47, p. 2).

3.23 Some unions which supported industry unionism but which

contained skilled workers were also concerned with the

possibility that 1 industry1 unionism could lead to 'deskilling' and could tend to break down comparative wage justice

(AMWSU/FEDFA Evidence, p. 149-51)

3.24 White collar unions asserted that their form of

occupational unionism was incompatible with notions of 'industry' unionism. They shared the craft union's concern that their members would be prevented from moving across industry

lines while retaining their membership (see e.g. APEA Evidence, p. 808; APSA Submission 57, pp. 1-2; RANF Submission 47, p. 2).

Moreover they claimed that it was difficult to organise and

therefore adequately represent the interests of white collar workers if unions were organised strictly on an industry basis.

They also pointed to the fact that in those countries where

industry unionism was said to exist, for example West Germany

and Austria, separate arrangements were usualy made for white

collar unions (FCU Evidence, pp. 354-55).

30

Demarcation disputes

3.25 The ACTU specified that it was becoming increasingly

involved in the co-ordination of union claims and in the

settlement of industrial and demarcation disputes and had warned

of the need for unions to uphold its disputes procedures.

3.26 The Federated Clerks Union concentrated part of its submission on the Government's assertion that industry unions

were needed to remove the possibility of demarcation disputes.

It argued that the extent of industrial action in Australia

which was attributable to demarcation disputes had been

exaggerated. It supported this proposition by an analysis of the relevant statistics. They appear as Table 3C and show that in the seven year period 1973-9 demarcation disputes were

responsible for no more than 3% of working days lost in any one

year and in most years the figure was less than 2%.

31

TABLE 3C

DEMARCATION AND INTER/INTRA UNION DISPUTES COMPARED WITH TOTAL DISPUTES -ALL INDUSTRIES, 1973/79

No. of Disputes Demarcation Year and other Total

disputes Disputes

Demarcation and other as % of total %

Demarcation and other disputes (in '000)

Working days lost Demarcation

Total and other as

Disputes % of total (in ' 000) %

1973 201 2538 8

1974 228 2809 8

1975 144 2432 6

1976 129 2055 6

1977 125 2090 6

1978 169 2277 7

1979 123 2042 6

85 2 634.7 3

95.1 6 292.5 1.5

55.4 3 509.9 1.5

63.3 3 799.2 1.6

27.5 1 654.8 1.6

56.2 2 130.8 2.6

56.0 3 964.4 1.4

Source: A.B.S., Catalogue No. 6322.0 and unpublished information.

Note: These figures do not include disputes against employment of non-unionists or other disputes under the usual A.B.S. heading of 1 Trade Unionism'.

(ECU Evidence, p. 339)

Union alternatives

3.27 The ACTU proposed that the rationalisation of trade

union structures should be approached in accordance with the

unanimous recommendations of the National Labour Consultative Council, made in February 1980. Those recommendations are set

out in Appendix E to the ACTU' s Evidence (pp. 659-71) and, in

broad terms, suggest a liberalisation of the current

restrictions on amalgamation so that unions which have 1 community of interest1 may more readily merge. A Bill was introduced in the Senate on 25 November 1981 by Senator Button

which sought to give effect to the NLCC recommendations, but it failed to gain the support of the Senate.

OBSERVATIONS, CONCLUSIONS AND RECOMMENDATIONS

3.28 The establishment of the Committee and its public

hearings gave to the industrial relations community a unique

opportunity to express opinions on the subject of industry unionism.

3.29 For the first time in such a forum as was provided by

the Committee various and indeed conflicting concepts of

industry unionism were aired and the desirability of encouraging

by legislation the development of industry based unions was

seriously questioned.

3.30 The Committee is not opposed to industry based unions.

However after consideration of the submissions and evidence the Committee does not consider that the proposed legislation is the

best method of providing changes in the structure of Australian

trade union organization.

3.31 In the short term the proposed legislation, if enacted,

would lead to dislocation and disruption and in the long term may not even result in the creation of structures ' which are

33

more suited to a modern economy1 as envisaged by the Government.

(Second Reading Speech, H of R Hansard. 25 March 1982, p. 1472.)

On the contrary there is no guarantee that the proposed

legislation would not result in the creation of even more unions.

3.32 As has been noted elsewhere in this Report the

1 conveniently belong1 provision of the Conciliation and

Arbitration Act has had the effect of limiting the number of organizations which could be registered and reducing the

occasion for demarcation disputes. The Government's proposed

legislation provides that the 1 conveniently belong1 provision in

the Act will have no effect where it might prevent the

registration of an 'industry organization1.

3.33 The Committee also notes that the proposed legislation

does not attempt to alter the provision contained in the Act

since its inception requiring an organization to have enrolled

only 100 members prior to making application for registration.

3.34 For the purpose of giving effect to its policy

objectives in this area the Government's original proposal was

for the establishment of enterprise unions. This proposal was widely condemned. However the Committee notes the comments made by the Minister in his second reading speech that 'the

Government's proposals in this area are being further developed in consultations with employer and union groups'.

3.35 There is considerable doubt among the industrial

relations community that union structures predominately

determine industrial relations outcomes. Evidence given to the

Committee suggested that industrial relations in Australia might better be served by devoting some attention to employer

organizations and to the status accorded industrial relations by many companies.

34

3.36 Evidence was given to the Committee which persuades it

to acknowledge the present difficulties posed by the Act in

cases where members of separate unions have reasonably expressed

a desire to effect an amalgamation of their unions. The

Committee, however, does not favour legislation which would

allow for uninhibited amalagamations, and considers that

amalgamations should only take place after a 1 community of

interest1 test has been satisfied. The Committee is also of the

view that the membership of unions proposing to amalgamate must

be consulted and given an opportunity to express a view thereon. The Committee suggests that in elections where the membership is

consulted on mergers, at least 25 per cent of the membership of each union should be required to record a vote, and of those

voting, at least two thirds should be required to vote in favour of the proposition. An alternative could be for at least 25 per

cent of the total membership of each Union to vote in favour of

amalgamation, provided that those voting in favour constitute a

majority of the votes cast. The electoral rolls used in such

procedures should be as up to date as practicable.

3.37 The evidence presented to the Committee by both

employer and employee organizations supports the Committee's

conclusion that there would be merit in further discussions

taking place with the participation of the industrial relations

community before further legislative action affecting employee

or for the matter employer organisations is contemplated.

3.38 The evidence taken by the Committee supports the

Committee's view that the proposed legislation, as presently

drafted, would, if passed, increase industrial disputation.

3.39 For the reasons outlined in this Report the Committee

recommends that the Senate not pass the provisions of the Conciliation and Arbitration Amendment Bill 1982 relating to the

encouragement of industry-based unions. In the interests of

smooth industrial relations the Committee recommends that before

35

Ill

any further legislative action is contemplated in this area the

Government consult with the NLCC and registered organizations likely to be affected.

36

CHAPTER 4

ABOLITION OF PREFERENCE

THE BACKGROUND

4.01 Since its inception the Conciliation and Arbitration

Act has provided for the award of preference to unionists. One

of the chief objects of the original Act was 1[t]o facilitate

and encourage the organisation of representative bodies of employees' (Conciliation and Arbitration Act 1904, section

2(vi)). It was furthered by a provision which gave power to the

Commonwealth Court of Conciliation and Arbitration to make

orders for preference to union members at the point of hiring

fibid, section 40(b)).

4.02 This measure served at least four significant purposes.

It gave unions an incentive to join the federal system; it

provided a counterbalance to other stipulations of the Act which

restricted union freedom such as the prohibition of strikes; it

contributed to the viability of the federal system which could

hardly have functioned had representative organizations not

participated; and it recognised that trade unions require a

certain standing and viability to be able to responsibly and

adequately discharge the obligations imposed upon them by the

Conciliation and Arbitration Act and awards made pursuant to the

Act.

4.03 The power of the Court to grant preference was

qualified in a number of important ways.

(1) Before an application could be heard notice of it had

to be published in the Government Gazette so that interested parties could make submissions (s 40).

37

(2) An order directing the granting of preference could not

be made unless the Court was persuaded that a majority

of the employees affected approved (s 40) .

(3) Preference could not be granted to an organization if

its 1 rules or other binding decisions permit[ted] the application of its funds to political purposes, or requir[ed] its members to do anything of a political

character1 (sub-section 55(1)). 1 Political purposes'

were defined to exclude objectives relating to a broad

range of industrial matters:

(i) Preservation of life and limb

(ii) Compensation for injuries or death

(iii) Sanitation

(iv) The sex and age of employees

(v) The hours of labour

(vi) The remuneration of labour

(vii) Protection of salaries and wages

(viii) Other conditions similarly affecting employment (sub-section 55(1)).

(4) Preference, once granted, could be withdrawn if the

rules of the union were considered by the Court to be

1 burdensome or oppressive', or if they failed to 1 provide reasonable conditions for admission to or

continuance in membership1. A further ground for

withdrawal was that the organization had 1 acted unfairly or unjustly to any of its members in the

matter of preference1 (s 40).

These qualifications were removed from the Act in 1910 (Act No.

7 of 1910 ss 9 and 11).

38

4.04 In the early years of the Act's operation the power was

used sparingly. In its first ten years of operation the Court

made only one order for preference. One reason was that Higgins

J ., who was the President of the Court for most of this period,

took the view that preference clauses had the potential to prevent the best-qualified applicants from obtaining employment

and force rural employers to recruit from the cities when local,

non-union labour was available (Australian Builders Labourers

Federation v Archer (1913) 7 CAR 210, 233-4) . Another was that many unions wished to retain political objects in their rules and were not prepared to remove them in order to be able to

apply for preference clauses.

4.05 Higgins J. did, however, recognise that situations

could arise in which preference should be granted. Union members

who were covered by awards were generally better paid than those

employees who were non-members. Since employers did not have a

statutory obligation to pay award rates to non-unionists, non-unionists were more attractive to them as employees.

Employer resistance to the new jurisdiction sometimes took the

form of positive steps which were designed to discourage

employees from joining unions. In such circumstances Higgins J . deemed it appropriate to exact undertakings from the offending employers that they would desist in their anti-union activities.

If the undertakings were not forthcoming preference clauses

would be inserted in the relevant awards (Australian Tramway Employees' Association v Prahran and Malvern Tramways Trust

(1912) 6 CAR 130). Most employers saw wisdom in desisting.

4.06 The need to use preference as a weapon to protect the

employment prospects of union members was reduced somewhat when

the High Court finally established the validity of common rules in 1935 (Metal Trades Employers Association v AEU (1935) 54 CLR

387) . This enabled unions to demand that all employees in an

industry should be granted the same (award) conditions of

39

I I

employment whether or not they were union members. However a

later generation of judges saw the need to grant preference for

more positive reasons and the concept survived the Metal Trades

decision (see generally P. Latimer, 'Principles Underlying

Preference-to-Unionists Awards in Industrial Law', (1981) 23

Journal of Industrial Relations 163 and below paragraph 4.09).

4.07 In 1947 , the power of the Commonwealth Court of

Conciliation and Arbitration to award preference was settled in

terms which were substantially the same as those appearing in section 47 of the present Act. It provides that:

(1) The Commission may, by an award, or by an order made on

the application of an organization or person bound by

an award, direct that preference shall, in relation to

such matters, in such manner and subject to such

conditions as are specified in the award or order, be

given to such organizations or members of organizations

as are specified in the award or order.

(2) Whenever, in the opinion of the Commission, it is

necessary, for the prevention or settlement of an industrial dispute, for ensuring that effect will be

given to the purposes and objectives of an award, for

the maintenance of industrial peace or for the welfare of society to direct that preference shall be given to members of organizations as provided by the last

preceding sub-section, the Commission shall so direct.

(3) Where the Commission has, under sub-section (1),

directed, by an award or order, that preference shall

be given to members of an organization of employees, an

employer bound by the award or order is not required,

by reason of the award or order, to give preference to members of the organization over a person in respect of whom there is in force a certificate issued under

section 144A.

40

4.08 In two decisions shortly after the 1947 amendments the

High Court placed an important limitation on the power of the

Commonwealth Court of Conciliation and Arbitration to grant

preference. The High Court held that preference clauses could

not be drafted in such a way as to make union membership a

condition of the continued employment of all employees covered

by an award. In other words the power to grant preference could not be used to order compulsory unionism (R v Wallis: Ex parte

EAWB (1949) 78 CLR 529; R v Findlay, Ex parte VCM (1950) 81 CLR

537) .

4.09 Further cases refined the interpretation of section 47.

The present state of the case law is usefully summarised in the article by Latimer to which reference has already been made (see

above paragraph 4.06. Citations have been added):

Case law shows that a preference award may validly:

. provide for de facto demarcation of

function between competing unions (R_v Commonweath Conciliation and Arbitration Commission: Ex parte Transport Workers Union ("TWU") (1969) 119 CLR 529).

. provide for preference to a unionist over a non-unionist (TWU: R V Portus: Ex parte Transport Workers Union ("Portus") (1977) 141 CLR 1).

. provide for preference to one unionist in favour of another (Loc. cit.)

„ provide for preference of any kind (Loc. cit.1 and awards show this to include preference in promotion, leave

entitlement, retention in employment, retrenchment etc. (e.g. R v Holmes: Ex parte Altona Petrochemical Co. Ltd ("Holmes") (1972) 126 CLR 529) .

. permit the tribunal to give preference to a class of members of an organization (R v Gaudron: Ex parte UniRoval Ptv Ltd ("Gaudron") (1977) 141 CLR 204).

41

. bind an individual employer in a single State (Timber Merchants and Sawmillers Association v Australian Timber Workers Union (1934) 33 CAR 1159) .

. be awarded although it may be only

incidental to an industrial dispute (Waterside____Workers Federation____ of Australia v Gilchrist, Watt and

Sanderson Ltd (1924) 34 CLR 482).

. be awarded although it may also have the effect of binding non-disputants (Long v Chubbs Australia Co. Ltd (1935) 53 CLR 143; Metal Trades Employers Association v AEU (1935) 54 CLR 387).

On the other hand, case law shows that an

award of preference may not:

exclude non-unionists (preference implies choice, not compulsion) (TWO).

provide for compulsory unionism (R v Wallis; Ex parte EAWB (1949) 78 CLR 529, R v Findlay; Ex parte VCM (1950) 81 CLR 537) .

provide for monopoly of employment to any one union (Gaudron).

4.10 Since the early 1970's the approach of the Conciliation and Arbitration Commission to this issue can be explained by

reference to an oft-quoted passage from its decision in FCU v Altona Petrochemical Co. The Commission explained its approach to the issue:

It is our view that the intention of the

Parliament as expressed in the Act is that the power to award preference granted to the Commission by section 47 should not be looked at in any special way except that it is part of an Act which favours the encouragement of

unionism. In other words, a claim for

preference which falls within the provisions of section 47, carries no greater

responsibility of an applicant than any other claim and whether or not preference in one

42

form or another should be awarded is a matter for consideration in each case on the

particular facts of that case. We do not

propose to attempt to lay down any principles but we do say that, given the Act as it is

now and in present day circumstances, the almost automatic limitations on the granting of preference which appear to emerge from earlier decisions should now be disregarded

We cannot as a matter of law introduce

compulsory unionism, but we think that the Act, which is our charter contemplates that we should encourage unionism. If the

implementation by us of a statutory intention reduces the absolute freedom of management then we think that even so we must apply that intention in such a way as we think proper.

( (1973) 150 CAR 387 , 391-2).

It should not be thought however that applications for

preference will be granted readily by the Commission. The Altona

principles have been applied with caution in recent years (See

e.g. N .T. Public Service Case (1982) AILR Rep).

Preference clauses have also been used by the Commission as a means of settling demarcation disputes between unions (see e.g. R v Commonwealth Conciliation and Arbitration Commission; Ex

(1969) 119 CLR 529) .

4.11 Some 28% of federal awards contain preference clauses

of some kind (DEIR Evidence p. 1263) . The form of such clauses

vary. Of the 379 awards which contain preference clauses:

. 309 grant preference to union members at the points of

engagement and termination 1 all things being equal'.

This is the 1 standard' form

. 10 prescribe that members of a particular union may be

employed in particular work to the exclusion of other

unions' members. Such clauses are designed to prevent

demarcation problems

43

. 14 prescribe that a union must be notified of any

vacancy before the engagement of labour

. 64 prescribe that a non-member of the union concerned

must join the union within a certain period after engagement

. 13 prescribe that the union concerned should be

notified of the engagement of non-members

. 108 prescribe that preference should be granted in

relation to retention/redundancy (91 making the provision in addition to the 1 standard1 clause)

. 17 grant preference in relation to promotion

. 51 grant preference to ex-service personnel.

(DEIR Additional Information, dated 20 August 1982).

4.12 The Committee's attention was drawn to a practical situation which sometimes follows the making of non-standard preference clauses. One of these, to which many submissions referred, is that contained in the Clerks (Oil Companies) Award

1980 (extracted in full DEIR Evidence pp. 1297-1301). This

provides that a unionist may be employed at any time but that

except in emergency situations, a non-unionist may only be

employed after the union has been given 14 days in which to

produce a suitable applicant for the position. Such a unionist who offers himself to fill the vacancy must be accorded

preference. Faced with these obligations many employers simply

require all applicants for employent to join the union so that they may be employed without reference to the union. (AWSB

Submission 65, Appendix E; CAI Evidence, p. 1103) (see also

paragraphs 4.29 and 4.32).

44

4.13 Some unions have also negotiated 1 membership

agreements' with their employers. Major unions in the retail

industry have a long standing union security arrangement with

the major retail chain stores (SDA Evidence, p. 747). The

Australian Insurance Employees Union has since 1974 had a

similar agreement with major employers (AIEU Evidence, p. 930).

Many blue collar unions have traditionally enforced closed shops

by making it clear to employers that their members will not work with non-unionists (ARU Evidence p. 79) .

4.14 Statistical information on the extent of preference

clauses and the effect of union security arrangements and closed shops are not readily available. It has already been noted that approximately 28% of federal awards contain preference clauses

(above para 4.11). It has been claimed that 25% of all

Australian workers in 19 80 were required to join unions as a

prerequisite to obtaining and retaining employment (M. Wright,

'Unionisation in Australia and Coverage of the Closed Shop1, Australian Bulletin of Labour. June 1981). The Federated Clerks Union informed the Committee that, following the abolition of

preference in Western Australia in 1980 (see below para. 4.18),

its branch there lost about one quarter of its membership.

Before the change in the legislation the branch had been

recording nett average membership gains of 225 per year (ECU

Evidence, p. 420).

4.15 At present an employee who holds a conscientious

objection to union membership may seek to have that objection

recognised under section 144A of the Act. That section provides,

in part, that:

(1) Where a person, upon application made to the Registrar in the prescribed form and manner, and payment of the prescribed fee, satisfies the Registrar that the person's

conscientious beliefs do not allow the person

45

to be a member of any [union] the Registrar shall issue to the person a certificate to that effect.

A conscientious belief is defined to include all such beliefs,

not simply those which are founded on religious conviction

(sub-section 144A(2)). The belief must prevent the person from

joining any union (Re Aper (1978) 21 ALR 4 07; R v Sweeney; Ex

parte Northwest Exports Pty Ltd Π 9 8 Ή 35 ALR 135). The

conscientious objector must pay to the Industrial Registrar a fee equivalent to the relevant union's annual subscription. Once

a certificate is granted an employee may not be prejudiced in

his employment by reason of his refusal to join a union. If he is penalties can be imposed by the Federal Court.

4.16 Prior to 1977 conscientious objection certificates were

only available to employees who were covered by awards which

provided for preference. Since then section 144A has applied to

all employees. This has been reflected in an increase in the

number of applications for certificates (see Tables 4A and 4B).

46

TABLE 4A

SECTION 47 APPLICATIONS - 1956 TO 20 OCTOBER 1977

Q l d N S W V i c T a s SA W A N T A C T

A u s t .

w i d e

195 6 . . . 1(1) 0 0 K D

195 7 . . . K D 1(0) . . 0 2(1)

195 8. . . 1(1) 0 0 1(1)

19 5 9 . . . 2(2) 0 0 2(2)

196 0. . . 5(5) 1(0) 0 6(5)

196 1. . . 5(5) 0 0 5(5)

1 9 6 2 . . . 4(3) . · 1(0) 0 5(3)

19 63 . . . 4(4) 9(2) 1(1) 0 14(7)

19 6 4 . . . 4(4) 0 0 0 K l ) 5(5)

196 5 . . . 4(4) 4(1) 2(2) 0 0 K D 11(8)

19 6 6 . . . 5(5) 1(0) 0 0 0 1(1) 7(6)

196 7 . . . 2(2) 1(0) 0 2(0) 0 0 K D 6(3)

19 6 8 . . . 3(3) 0 1(1) 0 1(0) 0 1(1) 6(5)

196 9. . . 3(3) 2(0) 1(1) 0 0 0 1(1) 7(5)

1 9 7 0 . . . 3(3) 12(7) 2(2) 2(1) 0 0 2(1) 21(14)

1 9 71 . . . 3(3) 8(6) 3(1) 1(0) 0 0 2(2) 17(12 )

1972 . . . 3(3) 7(1) 2(2) 0 0 0 K D 13(7)

1 9 7 3 . . . 4(3) 11(4) 1(0) 2(1) 0 0 8(2) 26(10)

197 4 . . . 4(4) 5(3) 4(1) 1(1) 0 0 K D 15(10)

19 7 5 . . . 5(3) 1(1) 6(3) 2(2) 1(1) 0 i d ) K D 17 (12)

1 9 7 6 . . . 4(3) 1(1) 7(0) 7(3) 1(1) 0 0 0 20(8)

1 9 7 7 . . . 3(3) 0 8(5) 10(5) 0 9(1) 1(0) 0 31(14)

T o t a l s 7 2 (6 8) 6 2 (26) 41(19) 27(13) 3(2) 9(1) 2(1) 21(14) 238 (1 44 )

Figures in brackets indicate the number of applications or renewals granted.

Source: Parliamentary Debates - House of Representatives 2 May 1979, p. 1792.

47

TABLE 4B

SECTION 144A APPLICATIONS - OCTOBER 1977 TO DECEMBER 1981

Year No of Fresh No of Fresh

Applications Applications granted

No of No of

Applications Applications for Renewal for Renewal granted

Total Applications Total Applications

granted

1977 188 17 2 2* 190

1978 307 170 12 12 319

1979 167 35 53 44 220

1980 73 23 85 78 158

1981 77 48 74 67 151

19

182

79

101

115

* Previously section 47 certificates - renewed under section 144A

Source: DEIR Evidence p 1296.

STATE PROVISIONS FOR PREFERENCE

4.17 Each of the States has a system of industrial

regulation which deals with those employees and employers who,

for Constitutional and other reasons, do not participate in the

Federal system. Some 49.7% of the Australian workforce is covered by State awards, determinations, or agreements (May 1981

estimate based on figures provided by the ABS. Estimate for

Federal Awards: 37.9%; unregistered collective agreements: 1.4%;

not affected by awards: 11%).

4.18 Most of the States provide for the granting of

preference to members of trade unions. The present position in each of the States is as follows:

(1) New South Wales: The State Industrial Commission has

power to award preferences. There are 583 State awards.

A recent survey of 411 of these awards disclosed that

336 (or 82%) contained preference clauses.

(2) Victoria: Section 34(2) of the Industrial Relations Act

1979 prevents the Industrial Relations Commission from making awards of preference. However the Victorian

Government has indicated that this provision is under review and is likely to be amended to allow for

preference clauses. (Victorian Government Evidence, p.

520)

(3) Queensland: The Industrial Conciliation and Arbitration

Commission has power to award preference. There are 345

State awards of which 275 (or 80%) contain preference

clauses.

(4) South Australia: The Industrial Commission has power to

award preferences. There are 210 State awards of which 13 (6%) contain preference clauses.

49

(5) Western Australia: The Industrial Commission has lacked

jurisdiction to award preference since 1980. Industrial

Arbitration Act 1979, section 100.

(6) Tasmania: State Industrial Boards may award preference.

There are 70 State awards of which 29 (43%) contain

preference clauses.

In addition to the award provisions for preference, there exist

a large number of registered industrial agreements which have

the force of awards. Many of these provide for preference but relevant statistics are not available (DEIR Additional Information, 19 August 1982) .

THE GOVERNMENT'S CURRENT PROPOSALS

4.19 The Government's current proposals for amendment to the

law were outlined to the Committee by the Department of

Employment and Industrial Relations in the following terms:

Under the Conciliation and Arbitration Amendment Bill 1982 the Government proposes to protect the individual right of choice as

to membership of registered unions by:

. legislating for that policy as an object of the Act (clause 3)

. removing the jurisdiction of the

Conciliation and Arbitration Commission to award preference by:

- amending paragraph (j) of the

definition of 1 industrial matters' in section 4 of the Act - sub-clause 4(2) - and paragraph (k) of the definition of ' industrial matters' in section 81 - clause 9.

- excluding preference in or in relation to employment from the jurisdiction of the Commission and Flight Crew Officers

50

Industrial Tribunal - clause 5:

proposed sub-sections 4B(1), definition of 1 prescribed industrial matter1, and 4B(3).

- repealing section 47 - clause 7.

- repealing existing section 144A -

clause 20.

. relieving employers from compliance with existing preference clauses in awards by prohibiting the taking of discriminatory action by an employer in or in relation to

a person's employment based on that

person's non-membership of a federally registered organization - clause 20, proposed sub-sections 144A(1) and (13).

. protecting individuals who are not members of federally registered unions from

discrimination of the type described above not only by employers but also by

federally registered unions themselves - clause 20, proposed sub-sections 144A(2) and (14) .

. enabling those who are so discriminated against to claim compensation from the employer or union concerned or both -

clause 20, proposed sub-sections 144A(3) to (8) . Furthermore, where an employer is subject to a claim for compensation he may join the union concerned as a party to the action - proposed sub-section 144A(5). It

should be noted that the right to sue in the Federal Court of Australia for

compensation in these circumstances reflects the Government's judgement that such discrimination should be actionable but not an offence - proposed sub-section

144A(9)...

As to Commonwealth employment, the Government is making provisions under the Commonwealth Employees (Voluntary Membership of Unions) Bill 1982 to negate any provisions for

preference in awards, determinations or agreements affecting Commonwealth employees. (DEIR Evidence pp. 1266-1268).

4.20 The major changes which the proposed legislation would

effect are:

51

(1) A reorientation in the chief objects of the

Conciliation and Arbitration Act.

(2) A substantial reduction in the powers of the

Conciliation and Arbitration Commission to deal with certain disputes.

(3) Employers would be relieved of existing obligations

under preference clauses and the Commission would be

prevented from inserting new clauses.

(4) Abolition of conscientious objector status and creation

of a general right not to join a trade union for any reason. No fee is prescribed for persons wishing to

assert this right. Thus an objection to union

membership based on conscientious belief is placed on

the same level as any other objection to joining a

union.

(5) The general right is not restricted to employees covered by federal awards but extends to employees who

are employed by businesses which fall within the wider

federal legislative competence.

(6) I n s t e a d of the p e n a l t y p r o v i s i o n s w h i c h a t t a c h e d to

a c t s p r e j u d i c i n g c o n s c i e n t i o u s o b j e c t o r s in r e l a t i o n to

t h e i r e m p l o y m e n t n o n - m e m b e r s of u n i o n s w h o a r e

s i m i l a r l y t r e a t e d w i l l be g i v e n a c i v i l r i g h t of a c t i o n

for c o m p e n s a t i o n .

4.21 An issue arises as to the effect of the proposed

section 144A on the obligation to grant preference which is

imposed on employers by State awards and determinations.

Employers would be prevented from acting to the detriment of

non-members of federally-registered unions by reason of the

employees' non-membership. 'Employers', for these purposes,

include employers who are respondents to federal awards and

52

employers who conduct 1 prescribed businesses' and or which are

1 prescribed corporations' (proposed sub-sections 144A (10) -(12)). Prescribed businesses and prescribed corporations are

businesses and corporations over which the Commonwealth Parliament is able to exercise jurisdiction by virtue of

legislative powers other than the conciliation and arbitration

power. They include trading and financial corporations and the businesses of banking and insurance. Prescribed businesses and prescribed corporations may be respondents to State awards and

determinations which require them to accord preference to union

members.

4.22 The Department of Employment and Industrial Relations

informed the Committee that it had had advice from the

Attorney-General's Department that no conflict would arise between the provisions of the proposed section 144A and State

award obligations because an employer who acted to the detriment

of his employees in accordance with such award obligations would

be acting for that reason and not by reason of their

non-membership of a federally-registered union (DEIR Evidence, pp. 1352-3). The CAI expressed the view that no conflict would

arise because an employer who was bound by a State award would

not be affected by the proposed section 144A (CAI Evidence, p. 1109). The Attorney-General advised the Committee that if any

conflict did arise an employer would be relieved of any

obligations under the State award by operation of section 109 of

the Constitution (Interim Report, Appendix 6).

4.23 It would seem that the potential for conflict does

exist notwithstanding the views of the Department and the CAI.

Whether it arises or not will depend on the wording of the

relevant State preference clause. If it requires that preference

be given to members of a State-registered union there will be no

problem because proposed section 144A only applies to federal

organizations. However if the State clause directs preference to

members of a federally-registered union and an employer applies that clause in a manner which offends the proposed section 144A

53

his action will be sanctioned by State law but will be subject

to penalty under federal law. It will not avail the employer who

is proceeded against pursuant to the proposed section 144A to

plead that he acted because of his State award obligations. If

this was a valid defence it would also be available to an

employer who entered into a contract under State law to award

preference. The proposed section 144A would prevail under

section 109 of the Constitution and the employer would be liable

to penalty.

SUBMISSIONS MADE TO THE COMMITTEE

4.24 Although issues of preference and 'voluntary unionism'

enjoy a high political profile, the Committee received no substantive evidence from any employee claiming to have been

directly aggrieved by the operation of preference clauses

despite the widespread public invitations issued for persons to

make submissions to the Committee. A general submission was

received relating to conscientious objection rights of sub-contractors which was discussed with officers of the DEIR. (DEIR Evidence, pp. 1372ff).

The rights of the individual

4.25 Besides reflecting its intention 'to provide a better

balance in the powers, rights and duties of employers and employees' the Government's legislation reflects its policy that

in ' our liberal democratic society individuals should have the

right to decide whether or not they want to join a union. If

they do not they should be protected by the law' (Hon. Ian Viner, H of R Hansard, p. 1472, 25 March 1982) . The Western

Australian Government agreed (W.A. Government Submission 67, p.

2) .

4.26 Most employer organizations supported this position.

They referred to the Universal Declaration on Human Rights,

54

adopted by the United Nations General Assembly, Article 20 of

which states:

(1) Everyone has the right to freedom of

peaceful assembly and association.

(2) No-one may be compelled to belong to an association.

(See CAI Evidence, p. 1092; see also ARA

Evidence, p. 286)

They also questioned the need for preference clauses in the

present state of industrial relations. It was argued that while they had served a worthwhile purpose in the formative years of Australian trade unionism the encouragement which they provided

was no longer needed (CAI Evidence p. 1093). However it was

conceded that in practice a substantial number of members of

employer organizations operate under union security agreements.

4.27 The union responses to these arguments were directed to

several main issues. The first was that Australia's system of conciliation and arbitration could not operate effectively without viable trade unions and that the Governments proposed

legislation strikes at the heart of that system. Reference was

made to section 2(e) of the Act which provides that one of its

chief objects is:

to encourage the organization of

representative bodies of employers and employees and their registration under this Act.

Preference was seen as a key method of encouraging the

development of unions (see e .a . ACTU Evidence p. 584; TCOA

Submission 14, p. 12; ECU Evidence p. 399). The potential

incompatability between sub-section 2(e) and the proposed sub-section 2(f) was also recognised by the Sydney Chamber of

Commerce (SCC Submission 61, p. 7).

55

The Union movement pointed out that since preference is a form

of union security as well as a benefit to unionists, its

abolition can be expected to weaken the trade union movement by

depriving it of members thus altering the balance in favour of

employers as well as limiting its ability to overcome employer

resistance to the right of association.

The Unions also argued strongly that preference is not an infringement of individual liberties and that preference did not

amount to compulsory unionism citing case history in support of

this contention.

4.28 The union movement questioned the interpretation placed

on international conventions by the Government and most employer groups. In a detailed supplementary submission on this issue the

Federated Clerks Union canvassed the history of the various

United Nations Declarations and Covenants and those of the

International Labour Organisation. (FCU Supplementary Submission

31B) . In a letter to the Committee accompanying its analysis of the UN Declaration the FCU stated:

Two things can be seen quite clearly from this history, namely that: -* the then Chairman of the U.N. Human

Rights Commission, Mrs. Eleanor

Roosevelt, who presided over the drafting and adoption of the Declaration, has stated that Article 20 "was not to be

construed as preventing the closed shop or other requirements of membership laid down by Unions ..." *

* the U.N. has delegated consideration of freedom of occupational association to the International Labour Organisation. It has also endorsed the I.L.O.'s decisions. The I.L.O. has at all times, both prior to the adoption of the U.D.H.R. and

subsequently, decided that union security arrangements were neither authorised nor prohibited by its resolutions or

56

conventions but which were to be dealt with in accordance with national

practice.

Moreover, the discussion at the U.N. and the I.L.O. was usually conducted in the context of the practice of the United Kingdom, where collective agreements often provide for the

"closed shop", and New Zealand, where the law made union membership compulsory.

Neither of these two forms of union security apply to any extent in Australia. Preference is not compulsory unionism, as our submission has noted. Nor do membership agreements, such as that applying in the retail industry,

amount to the closed shop as known in the

U.K. applying as they do, only to "new

starters" and with provision for

conscientious objectors.

Form of preference clauses

4.29 Some employers claimed that preference clauses which

were of the Clerks (Oil Industry) Award type (see above para 4.12) effectively created a situation in which compulsory unionism was brought about notwithstanding the jurisdictional restrictions on the Commission (CAI Evidence, p. 1093; AWSB

Submission 65, pp. 11 and 16-17). These employers contended that

since preference clauses could produce this result there was an argument to support the removal of the power of the Commission

to award preference. Bridgestone Australia Pty Ltd in a

submission to the Committee stated that it was one of the rare firms which sought to implement the terms of a Clerks (Oil

Industry) Award style preference clause. It pointed to the

difficulties it encountered by having its labour recruited

through a union, including the poor quality of employees

provided and the delays involved in filling vacancies

(Bridgestone Submission 66, pp. 14-15).

57

4.30 The ACTU claimed that the arguments based on Clerks

(Oil Industry) Award type preference clauses were exaggerated

and that there was a relatively low incidence of such clauses.

The ACTU stated that preference clauses had been used to assist

recruitment by moderate rather than industrially aggressive

unions (ACTU Evidence p. 589) . It asserted that in most areas where union security arrangements and closed shops existed they did so as a result of agreements with employers independently of awards made under the Conciliation and Arbitration Act (ACTU

Evidence, p. 590). This was confirmed by employer organizations

(see e.q. CAI Evidence, p. 1094; AEWL Evidence, p. 487) . The

reasons for management co-operation were identified by the ACTU

as

. an attempt to standardise unionism in an industry;

. an attempt to keep certain unions out of an industry or plant;

. the view that good industrial relations will best be served by the industrial

interests of workers being represented by a union;

. a response to rank and file pressure;

. a desire to avoid disputation about union membership; and

. a recognition of the role of unions in the conciliation and arbitration system.

(ACTU Evidence p. 590).

4.31 Two employer submissions took issue with the claim that

the granting of preference facilitates protection of the

interests of moderate unions. Both submitted that the

Miscellaneous Workers Union was the beneficiary of a Clerks (Oil

Industry) Award type clause (AWSB Submission 65, p. 33;

Bridgestone Submission 66, pp. 11-15). The AWSB submitted that

the retention of the Commission's power to award preference is not decisive for the continued existence or influence of

58

moderate unions. It considered that no benefits flowed from

preference clauses which could not otherwise be obtained (AWSB

Submission 65, p. 33) . However another employer submission

contended that the removal of preference in Western Australia

had already seriously disadvantaged moderate unions (WAGFM

Submission 21, p. 2).

Employers' rights in staffing matters

4.32 Employers objected to the limitations placed on them by certain preference clauses in matters of choosing staff. They

saw such preference clauses as an unwarranted interference with their right to hire employees of their choice and their desire to retain such employees (see e.q. AID(NSW) Evidence, p. 250; Bridgestone Submission 66, p. 6). A related matter of concern to

the Master Builders Federation was the right of employers to

'work on the tools' (MBFA Submission 48, p. 5). (See also

paragraph 4.12.)

4.33 Unions maintained that preference clauses did not force employers to retain inefficient employees or employees who

engaged in misconduct. Preference clauses did not displace

common law rights of dismissal in such cases (FCU Evidence, pp.

418-419) .

Paying the benefits obtained by unions

4.34 A consistent theme of submissions from the union

movement was that preference was justified because workers ought

not to be able to enjoy the hard-won benefits obtained by unions

without paying a fair share of the costs associated with union

activities (see e.g. ACOA Evidence, p. 11; NOPA Submission 44,

p. 1; CSIROTA Evidence, p. 888).

59

4.35 The response to this argument was that non-members

received the benefit of awards (but not the right to those

benefits) because unions insisted that awards applied to members

and non-members alike the relevant interest was not that of the

non-unionist, it was the interest of the union and its members

in avoiding competition from non-unionists prepared to work at less favourable rates and conditions (AWSB Submission 65, pp.

19-22).

The effect of the proposed legislation

4.36 There seemed to be a measure of agreement that the

proposed legislation would have little practical effect on existing arrangements between unions and employers and that, if

individuals sought to enforce their desire to work as

non-unionists, considerable industrial disruption would occur

(see e.g. ACTU Evidence, p. 591; TCOA Submission 14, pp. 17-18;

WAGFM Submission 21, p. 2; Victorian Government Evidence, p.

522) . The CAI and the AEWL acknowledged that most preference and union security arrangements were well entrenched and that any attempt to disturb them would inevitably be disruptive (CAI

Evidence, pp. 1093-1094; AEWL Evidence, p. 487) .

SUBSIDIARY ARGUMENTS AGAINST THE PROPOSED LEGISLATION

4.37 A number of additional arguments were made against the legislative proposals. They were not responded to in detail.

The role of the Commission

4.38 The ACTU objected to the further reduction of the

powers of the Commission. It considered that problems would

arise because disputes over membership of unions could not be

dealt with by the Commission and because the Commission's ability to settle demarcation disputes between unions by an

award of preference would be removed (ACTU Evidence, pp.

593-594).

60

Conscientious objection

4.39 The availability of conscientious objector status was

seen as an adequate safeguard for the person who holds strong

beliefs against union membership although the ACTU did advise

the Committee that it regarded the scope of the present section

144A as being too wide. It also considered that the procedures

for dealing with applications did not give adequate recognition to union interests (ACTU Evidence, p. 599 and p. 1161).

4.40 Evidence was provided to the Committee that the

recognition of an employee's right to follow a particular

conscientious belief which does not allow of union membership operated in many cases independently of section 144A and is a

provision of major union security agreements for example in the

retail and insurance industries (SDA Evidence, p. 748; AIEU

Evidence, p. 931.)

Civil penalties

4.41 The ACTU opposed the penalty provisions of the proposed

section 144A on the ground that it would lead to industrial

disruption if attempts were made to enforce judgements against unions (ACTU Evidence, p. 594). The AWSB objected to employers

being made liable to such penalties because the Act offered them no protection against the type of industrial pressure which

would induce them to breach section 144A (AWSB Submission 65,

pp. 35-36) .

Lack of uniformity in legislative approaches

4.42 The Master Builders Federation drew attention to the

asymetrical approaches of the various State and Federal

governments to the issues relating to Union membership. It

pointed out the practical difficulties which this presented to

61

*

employers. National industries faced the problem of having some

employees working in jurisdictions where preference applies and

others where it did not. (MBFA Submission 48, p. 5).

THE COMMITTEE'S INTERIM REPORT

4.43 In its Interim Report the Committee drew attention to

the possibility that the proposed section 4B would have a wider operation than was contemplated by the Government. The Minister for Employment and Industrial Relations has since written to the Committee about this matter at the Committee's invitation. The

Minister provided the first considered response of the Government to submissions made to the Committee by Mr A.J.

Macken (Interim Report, Appendix 3). The Minister's letter, dated 24 September 1982, said in part:

I note that the Departmental representatives were not specifically asked about the

operation of Clause 5 of the Bill in relation to Mr Macken's assertion in his Submission that:

"The Bill if enacted would deprive

employers, employees rank and file

unionists and the victims of strike and and limitations of work of any present right of recourse to the Australian

Conciliation and Arbitration Commission for an award or to the Federal Court of Australia for an order under existing sections 25, 30, 32, 35, 140, 141 or 143 of the Conciliation and Arbitration Act, 1904 wherever the conduct complained of is or relates to a prescribed industrial matter, or is or relates to an industrial dispute or industrial question insofar as that dispute or question involves a

prescribed industrial matter."

May I say that I believe Mr Macken's views to be mistaken and I certainly cannot agree with his contention that:

"It is doubtful if the framers of this proposed legislation intended to provide a means whereby organizations desirous of

doing so could so conduct themselves as to exclude the jurisdiction of the

Conciliation and Arbitration Commission at will from the arbitration of industrial disputes but that is the effect of what is proposed."

Mr Macken argues in relation to Clause 5 that sections 25, 30, 32, 35, 140, 141 or 143 will not be available wherever there is industrial action or conduct related to the question of preference of employment.

That amendment removes from the Commission jurisdiction over industrial disputes to the extent that a claim for preference of

employment is involved. Therefore the

Commission cannot conciliate or arbitrate to determine an award of preference on a dispute notified under section 25 insofar as that dispute involves a claim for preference. This

is the intention of the Government's

legislation.

However, to suggest that the effect of the amendment will be to enable organizations to freely engage in industrial action related to preference of employment without attracting

the jurisdiction of either the Commission or the Federal Court is not borne out on any

reasonable reading of the amendment and displays a simplistic understanding of the operation of the Act.

4.44 Despite the Minister's expression of opinion the doubts

raised by Mr Macken have not been resolved in relation to the

potential effect of the proposed section 4B. The Committee draws

attention to the following points in this regard. 1

(1) If proposed section 4B is intended to do no more than prevent the Commission from exercising ' jurisdiction

over industrial disputes to the extent that a claim for

preference of employment is involved' why is proposed sub-section (3) prefaced by the words 'This Act ...

does not apply'? Why is the prohibition not

incorporated in section 25 and other sections

establishing the Commission's jurisidiction or

63

contained in a provision such as proposed sub-section

(3) which is expressed to deal with the Commission

rather than the Act?

(2) If proposed section 4B is not intended to affect the

operation of sections 140, 141 and 143 why is proposed sub-section (3) prefaced by the words 'This Act ...

does not apply1?

(3) The Committee notes that both paragraph (a) and (b) of

proposed sub-section 4B(3) contain the words 1 to or in

relation to.' These words would seem to suggest a wider

nexus between the Act and the giving of preference than the Minister's letter suggests.

(4) The definition of 'prescribed industrial matter' in

proposed sub-section 4B(1) refers to ' the giving of

preference'. It is not confined to the giving of

preference by the Commission and appears to be wide enough to embrace the giving of preference by employers independently of the Commission's award-making power.

(5) The Minister's letter fails to address the potential for conflict between the proposed sections 4B and 144A.

Even if the Minister is correct in his arguments in

relation to all other relevant sections it would seem

that these two provisions are inconsistent. The former

stipulates that the Act does not apply to or in

relation to the giving of preference. The latter proposes to deal directly with the giving of

preference. Even if the narrowest possible nexus exists

between 'the Act' and the giving of preference the

proposed sections appear to be irreconcilable.

64

OBSERVATIONS, CONCLUSIONS AND RECOMMENDATIONS

4.45 The Committee notes that the Government intends that

its proposed legislation will weaken the power of the

Conciliation and Arbitration Commission to deal with union

membership disputes. The Committee shares the view generally expressed by witnesses that the proposed legislation would not

be conducive to industrial peace and would further unsettle the

industrial relations climate.

4.46 The Committee notes that the Government also intends

its legislation to 1 provide a better balance in the powers, rights and duties of employers and employees'. Clearly this

legislation would fundamentally disturb this balance in favour of employers. The Committee considers that the proposed

legislation is an undesirable and unwarranted intervention into

the field of industrial relations particularly at a time when

high levels of unemployment have already disturbed this balance.

4.47 The Committee believes that viable unions are essential for the operation of Australia's system of conciliation and

arbitration.

4.48 The Committee considers that the proposed section 144A

would undermine this viability to an unacceptable extent and it

recommends that it not be incorporated in the Act. For similar

reasons the Committee recommends that the existing section 47 should be retained in the Act. Accordingly the Committee recommends that the amendments proposed by Clauses 3, 4(2), 5,

7, 9 and 20 of the Conciliation and Arbitration Amendment Bill

1982 should not be incorporated into the Act.

4.49 In his Second Reading Speech to the Commonwealth

Employees (Voluntary Membership of Unions) Bill 1982, the then Minister said that the Bill 'is ... designed to put into effect

in the area of Commonwealth Government employment the principles

65

proposed in the Conciliation and Arbitration [Amendment] Bill1.

For reasons outlined in this Chapter the Committee recommends

that the Senate not pass the Commonwealth Employees (Voluntary

Membership of Unions) Bill 1982.

4.50 The Committee notes further that the Government intends

that its legislation ensure 1 the protection of the rights of the

individual1. Some individuals are quick to recognize their

perceived rights but are not also as quick to recognize their

duty to associate with others for the common good. In addition there is a distinction between personal choice based on

conscientious belief on the one hand and the dictates of self-centred individualism on the other.

4.51 The Committee acknowledges the need to retain the

status of conscientious objection to union membership which is

presently provided for in section 144A. However it believes that

a less fundamental objection to union membership should also be

recognised, namely that a person holds principles or beliefs which prevent membership of unions. The Committee considers that such persons should be entitled to be exempted from membership

provided that they contribute a fee for the services provided by

the appropriate union, to that union. This fee would be settled in each case by the Industrial Registrar. It would be based on the standard membership fee which would be reduced by a maximum of ten per cent to take account of contributions made by the

union to political parties and other expenditures which were

unrelated to the direct provision of industrial or welfare

services to members. The fee for service could only be applied

by the union for the provision of industrial or welfare

services. The Committee recommends that section 144A should be

amended to recognise this alternative ground of objection to union membership.

66

4.52 The submissions and evidence received by the Committee

were extensive and raised complex issues. In addition, matters

outside the Committee's terms of reference were raised including

questions of coverage of non-employees by registered

organizations and the protection of conscientious objection

rights of persons not covered by the constitutions of registered

organizations. The Committee considers that all of the proposals

and issues would benefit from further study by the industrial

relations community, and therefore recommends that there be consultation between the Government and the NLCC before further

legislative initiatives are contemplated.

67

»Î¹

CHAPTER 5

STAND-DOWNS

INTRODUCTION

5.01 A 1 stand-down1 order is a directive, issued to

employees, which, for practical purposes, results in their not

working and not being paid. Despite this their individual contracts of employment remain undisturbed. Stand-down powers are utilised by employers who are unable to offer gainful employment as a result of events which are beyond their control.

5.02 At common law employers and employees are free to agree

to the right of employers to stand their workers down under any

circumstances. If such an agreement is reached it becomes a term of the contract of employment between those who have struck the bargain. Express agreements of this type are rare. In their

absence courts will be extremely reluctant to imply a right to

stand-down an employee or to otherwise suspend the operation of

a contract of employment (Hanley v Pease and Partners Ltd (1915)

1 KB 698).

5.03 Awards made under the Conciliation and Arbitration Act

1904 displace the common law to the extent of any inconsistency

(Constitution section 109; Act section 65). Thus, if a clause

permitting the standing down of employees is included in an

award it will confer on employers a power which is not generally

available at common law. The Conciliation and Arbitration

Commission and its predecessor have displayed considerable

caution when faced with applications for stand-down clauses

because of their potential impact on employees (See e.g. In re

Distilleries Award (1977) AILR Rep 132; Re Waterside Workers

Award (1914) 8 CAR at 73).

69

5.04 Nonetheless applications have been successful since the

days of the First World War. The initial impetus for the

inclusion of stand-down clauses in awards came from the

adoption, by the Commonwealth Court of Conciliation and

Arbitration, of the principle of weekly hirings (See e.g. A.s.Ε­

ν Adelaide Steamship Co. (1922) 16 CAR 231) . This led to the

insertion in most awards of provisions which required employers to give at least seven days' notice of termination of employment

or make payment in lieu. While such provisions afforded a

measure of job security to employees they also reduced the

flexibility of employers to respond to disruption of their

activities by strikes, plant failure, and other unforeseen events.

5.05 Stand-down clauses have always been seen by arbitral

authorities as a means of accommodating competing interests. The

employer who is prevented from engaging in income-producing

activities can ill-afford the expense of paying wages to unproductive workers. The workers, on the other hand, are dependent on a regular income and, in more recent days, derive benefits from continuity in their employment such as long

service leave entitlements. If an employer is faced with a choice between standing down his work force or terminating the

employment of its members the former course will operate to the

greater advantage of the employees because their continuity of service is maintained.

5.06 At another level a stand-down clause accommodates

interests by apportioning losses in a situation in which neither

the employer nor his employees are responsible for the cessation

of work. The employer is deprived of income and must continue to meet overhead costs such as insurance, rental charges and

interest. The employee is likewise deprived of income and must

continue to meet his living expenses.

70

THE PRESENT POSITION

Occurrence of stand-down clauses

5.07 In June 1982 a survey conducted by the Department of

Employment and Industrial Relations disclosed that 352 federal awards contained stand-down clauses. This figure represented

some 37% of all awards (DEIR Evidence, p. 1271)

Form

5.08 The survey found that 67% of stand-down clauses were

similar to clause 19(b) of the Metal Trades Award which enables

an employer

. . . to deduct payment for any day the

employee cannot be usefully employed because of any strike or through any breakdown in machinery or any stoppage of work by any

cause for which the employer cannot be

reasonably held responsible.

C e r t a i n f e a t u r e s of th is c l a u s e c a n be i d e n t i f i e d :

(1) A deduction of payment may only be made if an

employee's services cannot be used for a complete day.

(2) Stand-downs may only occur if the circumstances which give rise to them are not the responsibility of the

employer.

(3) An objective standard is established against which the

legitimacy of any stand-down may be tested.

(4) The clause can be called in aid without the observance

of any formality if the objective prerequisite is

present.

71

5.09 The next most common form of stand-down clause is

typified by clause 10 of the Transport Workers (Airlines) Award.

It is in the following form:

Notwithstanding anything elsewhere contained in the award, an employer may deduct payment for any day or part of a day that an employee cannot be usefully employed because of any strike, ban or limitation upon the

performance of work or for any other cause for which the employer cannot reasonably be held responsible.

The right given hereunder is subject to the following conditions:

1. When the employer proposes to

exercise the right given hereunder it shall notify each employee individually and advise alternatives under this sub-clause including the method by which recommencement of employment shall be established. During the period such notification remains in force the

employee shall be deemed to be stood down for the purpose of this sub-clause.

2. An employee who is stood down as

aforesaid shall be treated for all

purposes (other than payment of wages) as having continuity of service and employment notwithstanding such standing down.

3. An employee who is stood down as

aforesaid may at any time during the period he is stood down terminate his employment without notice and shall be

entitled to receive from the employer as soon as practicable any monies due to him at the time of termination. The day on which the employee exercises the right of termination without notice shall be the day on which the employment is terminated.

4. An employee whose employment is terminated under sub-paragraph (3) hereof shall for all purposes (other than payment in lieu of notice) be

treated as if his employment, had been terminated by the employer without default of the employee.

72

5. An employee who is stood down as

aforesaid hereof shall be at liberty to take other employment.

6. Save and except an employee who is a member of an organization engaged in a strike or stoppage at any establishment of the employer, an employee stood down

hereunder who has exercised the right to take other employment shall be entitled to work out in such other employment notice of up to one week provided he

notifies the employer of his so doing.

7. An employee who the employer proposes to stand down as aforesaid may elect to take, for the period of the stand down only and for such further time as is

reasonably required for the employee to return to his normal place of abode, any leave to which he is entitled or which is accruing to him and upon such

election being exercised the employee's leave shall be reduced accordingly.

8. Notwithstanding anything hereinbefore contained the employer will not deduct payment for any day prescribed by the award or agreement affecting the

particular employer as a public holiday which occurs during the period of

stand-down of an employee (other than of an employee who is a member of an

organization engaged in a strike or stoppage at any establishment of the employer) except to the extent that such employee has become entitled to payment

for the holiday in other employment. An employee claiming payment for a holiday shall, if required by the employer, furnish a statutory declaration setting out details of any other employment during this period and the remuneration

received therein.

Nine per cent of stand-down clauses are in a similar form. Their

distinctive features include: 1

(1) Payment of wages may be withheld for part of any day

during which an employee's services cannot be used.

73

(2) A wider range of provisions designed to protect the

position of the employee. In particular the employee is

entitled to seek alternative employment or take paid

leave.

In addition to these features clause 10 (but not all similar

clauses) contains a 1 sunset' provision under which it ceased to

be operative, at the latest, one month after its inclusion.

5.10 The Commission has been prepared to tailor clauses to

meet specific needs. Among the examples cited to the Committee wer e :

(1) The Professional Divers Award prescription that

employees may not be stood down unless their services

cannot be used for a period of five days ( (1978) AILR

Rep 39). This provision takes account of the

availability of alternative work for divers who are prevented, by bad weather, from diving.

(2) The Clothing Trades Award prescription that stand-downs cannot be ordered unless the State Secretary of the Union and 75% of the employees in a particular

establishment agree ( (1977) AILR Rep 462 (25)).

Insertion

5.11 If an award does not contain a stand-down clause

application may be made to the Commission to have one inserted.

In determining whether to accede to such an application and, if so, the form which the clause should take the Commission is

guided by a variety of considerations. These include:

74

(1) The history of the relevant award. If the award has not

contained a stand-down clause in the past the

Commission will be reluctant to include one (Airline Hostesses and Flight Stewards Case (1966) 116 CAR 525) .

(2) The nature of the relevant industry. If it is one that

is beset traditionally with economic fluctuations or

supply problems or is subject to vagaries such as the

weather the Commission will be more inclined to insert

stand-down clauses (Re Clothing Trades Award (1977)

AILR Rep 462(25); Building Construction Employees and

Builders Labourers Award 1978) .

(3) The incidence and cause of industrial action in an industry. Industries which have a history of frequent

industrial action are more likely to have permanent

stand-down clauses in the relevant awards (Re Building

Construction Employees and Builders Labourers Award

1973 (1977) AILR 461) . An employer who is forced to cease production because of demarcation disputes between unions will have a strong case (Wool Testing

Services Ptv Ltd v FSPU (1976) AILR Rep 252).

(4) The manner in which employers have used stand-down clauses on previous occasions. If there have been abuses the Commission will be slow to include a new clause (Re Food Preservers Award (1978) AILR Rep 343).

5.12 An employer who makes application for the insertion of

a stand-down clause can be assisted by section 33A of the Act

which, since 1979, has required such applications to be heard

and determined 'as expeditiously as is appropriate having regard

to all the circumstances'. An analysis by the Department of

Employment and Industrial Relations of the processing of seven

applications which were made as a consequence of the transport

workers' strike in July 1981 discloses that the average time

75

from application to determination of four applications was 4

days. The longest delay was 6 days and shortest 3 days. Three

applications did not proceed to hearing and determination

because they were not pressed by the employers (DEIR Additional Information dated 20 August 1982).

5.13 Questions by the Committee which were designed to

elicit reasons for delay in processing stand-down applications met with mixed responses. The CAI indicated that it was unable

to explain many of the delays which had occurred (CAI Additional

Information, dated 1 September 1982). The Department of

Employment and Industrial Relations' survey (referred to in the preceding paragraph) identified procedural problems and scheduling difficulties as the causes of some delays. Perhaps

the most significant cause of the slow processing of

applications was identified by a representative of the

Association of Employers of Waterside Labour when giving

evidence to the Committee. He indicated that attempts to settle

disputes which give rise to applications are often in progress when an application is made. Employers do not always press their applications for fear of prejudicing the settlement negotiations

(AEWL Evidence, p.493-494).

5.14 In the two year period covered by the Reports of the

President of the Commission to 13 August 1980 and 13 August 1981 there were

. 71 applications to the Commission to vary stand-down

clauses

. 47 notifications of disputes under section 25 of the

Act relating to the insertion of stand-down clauses

. 10 matters relating to stand-downs dealt with by a Full

Bench.

76

(Parliamentary Papers 75/1981 and 129/1982)

Remedies

5.15 If a stand-down clause forms part of an award and an

employer stands down employees who are covered by that award in circumstances which do not warrant such action various remedies

are available to the employees concerned.

5.16 Informal redress. Although the Commission lacks power

to interpret and enforce awards (R v Kirby: Ex parte

Boilermakers' Society of Australia (1956) 94 CLR 254) it does

exercise an informal jurisdiction under which it indicates to the parties whether a particular stand-down is justified (ACTU Evidence, p. 1165). If the Commission expresses the view that an

employer has acted improperly, and that employer responds by

paying his employees for the time lost, this constitutes an

informal but nonetheless effective avenue of redress.

5.17 Section 119. Section 119 of the Act provides for the imposition of a civil penalty for a breach of an award. The Federal Court and various State courts can deal with such

actions. The court will interpret the award in question and determine whether a party has breached its terms. If an employee claims to have been wrongfully stood down the relevant clause

will be examined by the court. Over the years a substantial body of case law has been developed around the meaning of phrases which commonly appear in stand-down clauses (See C. Arup, 1 The

Power of the Employer to Standdown: Latitude and Constraints'

(1978) 20 Journa] of Industrial Relations 463, 467-75). Of

particular importance for present purposes is the judicial

interpretation of the words 'reasonably be held responsible'. An employer is so responsible if the stoppage of work which is

alleged to justify stand-downs is the 'natural and probable

consequence of his acts' (VBEF v Ford Motor Co of Australia Ptv

Ltd (1962) 3 FLR 198, 200) . Thus an employer who engineers a

77

stoppage by part of his workforce (for example by refusing to

have faulty and dangerous machinery repaired, cannot rely on a

standard clause to stand-down the rest of his workforce. If he

does he can be penalised under section 119. In addition to any

monetary penalty he can be required to pay his employees any

wages which they have lost as a result of being stood down improperly (sub-section 119(3)).

5.18 Section 123. Section 123 permits an employee to bring

an action to recover lost wages due under an award. In an action pursuant to this section an employee who has lost wages through

being stood down improperly may challenge the validity of the stand-down collaterally.

1 No work as directed, no pay1

5.19 A distinct but related problem is created by the

interrelationship of the common law principle which permits an

employer to refuse payment to an employee who declines to perform some of his allotted duties and award provisions which require the regular payment of wages. In Gapes v CBA (1980) 41 FLR 27 the Federal Court considered an action brought by an employee, pursuant to section 119, for the breach of an award. He claimed to be entitled to payment of wages on days on which

he had attended his place of work and performed most of his duties. He had not performed others because of work bans which

had been imposed by his union. The relevant award made provision

for an annual salary payable at specific intervals. It was

silent as to the right to deduct wages. The Court held that the

award constituted an exhaustive code which displaced the common law. The employer had accepted part performance of the

employee's duties and, in the absence of a right to deduct

wages, was found to have breached the award by withholding

Gapes' wages.

78

5.20 The ramifications of Gapes Case are unclear. Unlike

most awards the award there in question did not provide for

weekly hirings. The relevance of the Gapes principle to awards

providing for weekly hirings therefore remains to be tested.

There is a suggestion that non-performance of a substantial portion of a worker's duties may lead to a different result. On

the other hand nothing short of dismissal may entitle an employer to refuse payment of wages when an employee is engaging

in selective bans (See case note by McCarry, Note (1980) 54 ALJ

421) .

T H E P R O P O S E D A M E N D M E N T S

5.21 The major amendment proposed in the Conciliation and

Arbitration Amendment Bill 1982 is the inclusion in the Act of a

new section 33B. This section would read:

P o w e r s of e m p l o y e r s in r e l a t i o n t o i n d u s t r i a l a c t i o n

33B. (1) Where any employees of an employer engage in industrial action in relation to an industrial dispute, the employer may declare that this section applies in relation to

those employees.

(2) Where -(a) a declaration made by an employer under sub-section (1) by reason of industrial action is in force; and

(b) as a result of that industrial action, any prescribed employees of that or any other employer (in this sub-section referred to, in either case, as the

"relevant employer"), being employees not engaged in that industrial action, cannot be usefully employed,

the relevant employer may declare that this section applies in relation to those

employees.

79

(3) A declaration made under sub-section (1) or (2) by reason of industrial action

continues in force in relation to an employee until that industrial action wholly ceases.

(4) Where -(a) an employer suffers substantial loss or damage resulting from industrial action (whether engaged in by his employees or

not), being loss or damage in respect of

(i) in the case of an employer who is a prescribed corporation - any

business carried on by him; or

(ii) in any other case - any prescribed business carried on by him; and

(b) it is necessary, to avoid his further suffering substantial loss or damage as described in paragraph (a), for this section to apply in relation to those of his employees who

employees and -are prescribed

(i) are engaged in

action; or

that industrial

(ii) as a result of

action, cannot employed,

that be

industrial usefully

he may declare that this section relation to those employees. applies in

(5) Subject to sub-section (7), a made under sub-section (4) by industrial action continues in relation to an employee until -

declaration reason of force in

(a) in the case of an employee engaged in that industrial action -(i) he ceases to engage in that

industrial action; or

(ii) he can be usefully employed,

whichever is the later; or

(b) in any other case - the employee can be usefully employed.

80

(6) For the purposes of sub-sections (4) and (5), the definition of "Industrial action" in sub-section (1) of section 4 shall be read as if -

(a) the words in parenthesis in paragraph (a) of that definition were omitted; and

(b) all the words in paragraph (b) of that definition after "work" (second

occurring) were omitted.

(7) A declaration made by an employer under sub-section (4) does not continue in force in relation to an employee after a time when it is no longer necessary, to avoid the employer

further suffering substantial loss or damage as described in paragraph (a) of that

sub-section, for this section to apply in relation to that employee.

(8) A declaration under this section -(a) may, notwithstanding the preceding provisions of this section, be wholly or partly revoked at any time, but without

prejudice to the making of a further declaration; and

(b) may be in force during any period,

including a period consisting of, or including, part of a day.

(9) A declaration under this section or a revocation of such a declaration shall be by instrument in writing and shall be notified to the employees concerned in such manner as

is appropriate in the circumstances.

(10) An employee is not entitled to any

salary, wages or other remuneration, or any allowances, in respect of any period during which a declaration made under this section is in force in relation to him. 1 1

(11) This section, and declarations under this section, have effect notwithstanding -(a) any other provision of this Act;

(b) any other law of the Commonwealth

enacted before the date of commencement of this section; and

81

(c) any award made before, on or after that date,

but this section does not limit or restrict any rights of an employer existing under the terms of an award or otherwise, whether

arising before, on or after that date.

(12) In this section, 'prescribed employee' means an employee whose terms and conditions of employment are wholly or partly -(a) prescribed by an award of the

Commission, by an award, determination or order made by another tribunal in pursuance of a law of the Commonwealth or by or under a law of the

Commonwealth; or

(b) the subject of an industrial dispute.

The phrase 'industrial action1 is accorded a wide meaning by

section 4 of the Act. It embraces strike action and most

disruptive practices falling short of a total withdrawal of

labour.

5.22 Section 33B will allow employers to make a declaration

with respect to employees who engage in industrial action in

relation to an industrial dispute (sub-section (1)). If a declaration is in force in respect to employees who are engaged in industrial action and other employees 1 cannot be usefully employed1 as a result of the industrial action a further

declaration may be made in respect of the latter (sub-section

(2)). A declaration can continue in force until the industrial

action ceases completely (sub-section (3)) . While it is current

employees to whom it is directed are not entitled to wages

(sub-section (10)) .

5.23 Section 33B is expressed to operate notwithstanding the

provisions of awards (sub-section (11) ) . Existing stand-down

provisions therefore remain in place but employers can by-pass

82

them in favour of declarations made under section 33B. Any

stand-down clauses which are inserted in any future award

variations may likewise be ignored.

5.24 Some doubt appears to exist as to the remedies which

may be available to employees in the event that they are stood

down wrongfully by their employer in the purported exercise of

his powers under section 33B. The Sydney Chamber of Commerce,

for example, expressed the opinion that the section would

radically alter the present position under which an employer carries the onus of proving that he could not usefully employ

workers whom he wishes to stand-down. The Chamber believes that

if the proposed section 33B becomes law an employer would not have to prove that such a situation had arisen; it would be sufficient that any declaration made was supported by the

employer's subjective judgement (SCC Submission 61, p. 10). If

this interpretation of the Bill is correct it would mean that an

employee, who was stood down in circumstances where on an

objective view he could have been usefully employed, would be placed in an extremely difficult position. He could bring an action for breach of the award and/or recovery of wages under sections 119 or 123 of the Act but would be met by the assertion

that a valid declaration was in force and that it applied

notwithstanding any other rights of the employee under the Act (section 33B(11)(a)). The validity of the declaration would rest

on the employer's subjective judgement.

5.25 It would appear that the interpretation of section 33B outlined in the preceding paragraph is misconceived. Both

sub-sections (1) and (2) create objective standards as criteria

for the making of declarations. Sub-section (1) stipulates that

industrial action must be taken by employees before their

employer can make a declaration. Sub-section (2) establishes two

prerequisites for the making of declarations in respect of

employees who are not engaged in industrial action. There must

be a declaration in force under sub-section (1); and the

83

industrial action which has given rise to that declaration must

result in those employees not being able to be usefully

employed. An employee who claimed that he had been stood down

when no industrial action was being taken or when he could have

been usefully employed could bring actions under sections 119

and/or 123. In those proceedings he would be able, collaterally,

to challenge the validity of the declarations. If the court was persuaded that, on an objective assessment, the necessary

prerequisites for the making of the declaration did not exist it

could find for the employee on the ground that no valid

declaration was in force and therefore the normal entitlement to

wages existed during the period of the stand-down. The onus of

proof would rest on the employee.

5.26 The proposed section 33B would overcome the problem

created for employers by the Gapes decision. Performance by

employees of only part of their duties would constitute

industrial action (sub-section 4(1)). It would therefore be open

to their employer to make a declaration under sub-section 33B (1) in which case no wages would be payable even in respect of the work which is performed (sub-section 33B(10)) .

5.27 In discussing what is proposed by the Government, it is perhaps worth sketching some of the background in the context of the Government's recent legislative initiatives and statements.

In his Second Reading speech to the Conciliation and Arbitration Amendment Bill 1982, the then Minister for Industrial Relations,

Mr Ian Viner said:

In the life of this Government we have

already acted within our legislative power to protect the public interest . . .

We have also strengthened our own hand in dealing with unreasonable industrial action by employees of the Commonwealth. (H of R Hansard. 25 March 1982, 1473).

84

This last reference by Mr Viner was evidently to, inter alia,

the Commonwealth Employees (Employment Provisions) Act 1977

(CEEP Act) which came into force on 13 July 1979 and amendments to the Public Service Arbitration Act (1977) and the Public

Service Act (1980) which gave Commonwealth employing authorities

greater power to stand-down employees engaged in industrial action, or who could not be usefully employed because of such

action. In a news release issued on 7 February 1982 Mr Viner had

said new legislation was justified since it would 1 give private

employers the same basic right that the Government has given itself' (News Release, 63/82) . It is difficult to see the

consistency in the successive announcements by the Government on this issue. For while Mr Viner placed the stand-down provisions in the Bill before the Committee in the context of its prior legislative initiative in the area of Commonwealth employment,

the then Minister for Employment and Industrial Relations, the

Hon. A.A. Street, M.P., in a letter to The Aae on 16 July 197 9

said of the CEEP Act that ' all of the powers [under the Act]

are, or can be, available to management in private industry1 (Letter to The Age. 16 July 1979).

S U B M I S S I O N S M A D E T O T H E C O M M I T T E E

5.28 The Committee received a large number of submissions from interested organizations which contained arguments for and

against the introduction of the proposed section 33B. These can

be divided for convenience into two categories: general and specific.

G e n e r a l a r g u m e n t s s u p p o r t i n g a s e c t i o n 3 3 B

5.29 The CAI expressed its general view that there existed

1 an unanswerable case for granting employers greater rights to

stand-down employees than currently exist' (CAI Evidence, p.

1095) . Employers felt a need to redress what they perceived to be an inability to counter industrial tactics used by unions

85

because of the difficulties associated with the obtaining and

application of stand-down clauses (Simplicity Funerals

Submission 6, p 2; AN Submission 45, pp 19-20).

5.30 Employers also objected in principle to having to pay

employees who were not engaged in productive work because of the effects of industrial action. Without an unfettered right to stand-down employees in such circumstances they would and do

incur substantial losses (CAI Evidence, p. 1094).

5.31 Most employers did not address, in their written

submissions, the specific question as to whether the stand-down provisions in the Bill were consistent with modern industrial

practices and would contribute to industrial peace. An exception was the Sydney Chamber of Commerce which told the Committee in

its submission 1 There is little doubt that the introduction of

the deferred legislation on stand-downs would not contribute to

industrial peace because it would not defeat strikes' (SCC

Submission 61, p. 11). The SCC also provided other arguments in opposition to the proposed stand-down provisions (SCC Submission

61, pp. 10-12).

S p e c i f i c a r g u m e n t s s u p p o r t i n g a s e c t i o n 3 3 B

5.32 The major shortcoming of the present position in the view of employers is delay in obtaining the insertion of stand-down clauses when they do not appear in the relevant award. Notwithstanding the provision of section 33A minimum

delays of three to four days occur between the making of an

application for insertion of a stand-down clause and the necessary order issuing from the Commission. Delays of this

length were considered to be unacceptable. (CAI Evidence, p.

1095; Simplicity Funerals Submission 6, p. 2; AEWL Evidence, p.

487). There were suggestions that some delays were considerably

longer but it was conceded that this was not necessarily caused

by the Commission's procedures (AEWL Evidence, p. 494).

86

5.33 Complaints were made by some employers that the

Commission was reluctant to insert stand-down clauses in awards.

The CAI Submission, for example, contained such a complaint but

no specific instances were cited (CAI Evidence, p. 1095).

5.34 The AEWL suggested in evidence to the Committee that an

application for a stand-down clause itself could be the cause of

industrial action or disputation (AEWL Evidence, p. 494)). It is

difficult to see how this can constitute an argument in favour

of an automatic stand-down provision. It is not unreasonable to

anticipate a stronger reaction from unions to the automatic standing-down of their members than to an application by an employer to the Commission which has no certainty of success.

5.35 Further objection was made to the form of many of the

stand-down clauses which appear in federal awards. Employers

expressed particular concern with clauses which do not permit

them to stand-down employees for part of one day (CAI Evidence, p. 1095). This was because it left them vulnerable to the tactic of rolling strikes in plants where more than one union was

represented and to the tactic of withdrawal of labour by a few

key personnel (SCC Submission 61, p. 10; MBFA Submission 48, pp.

6ff) . In such circumstances they were forced to pay most of their workforce despite the fact that no useful work was available as a result of the industrial action by a minority. Concern was also expressed at the inclusion, in some stand-down

clauses, of a right to stand-down only those employees who were

members of the union which was engaging in industrial action

(CAI Evidence, p. 1095) .

General arguments - opposing a section 33B

5.36 The ACTU and the unions which made submissions to the

Committee expressed the view that there was no warrant for tightening the present position in relation to stand-downs (See

87

e.α . ACTU Evidence, p. 606 ; ECU Evidence, p. 427) . Extant

procedures were seen as providing a degree of flexibility which

would be removed if automatic stand-downs were introduced.

5.37 Unions were also apprehensive that the Bill undermined

the authority of the Commission in a number of ways. Section 33B

would form part of this scheme because it would enable

stand-downs to occur without reference to the Commission (ACTU

Evidence, p. 611) .

S p e c i f i c a r g u m e n t s - o p p o s i n g a s e c t i o n 33B

5.38 The union movement saw many of the specific complaints

of employers as amounting to an attack on the Commission (ECU

Evidence, p. 477). The reluctance of the Commission to order the insertion of stand-down clauses in awards was supported on the

ground that this was a manifestation of the Commission's

practice of balancing the competing interests involved. It was

said that notwithstanding its general attitude the Commission would readily grant applications in appropriate circumstances (see above para 5.11 and ACTU Evidence, p. 606) . When clauses are inserted they are tailored by the Commission to meet the

problem which has given rise to the application. Again competing interests are considered and these considerations result from

time to time on restrictions being placed on an employer's right to stand-down his employees (AIEU Evidence, p. 938; ACTU

Evidence, p. 607) . The union submissions drew attention to the

fact that employers who were dissatisfied with the form of

stand-down clauses could take the matter to a Full Bench of the

Commission (ECU Evidence, p. 427).

5.39 The ACTU submitted that the problem of delay in hearing

applications had been overcome by the inclusion of section 33A

in the Act. This provision was seen to be working well (ACTU

Evidence, p. 606; ABEU (Tas) Submission 15, p 2; AAFEA Evidence,

p. 218) .

88

5.40 The union movement argued strongly for the retention of

an independent arbitrator in disputes relating to the insertion

of stand-down clauses. Without this protection, it was said that

employees would become liable to be stood down unjustly

(Devonport Trades and Labour Council Submission 54, p. 1). The

example was given of an employer engineering a dispute on a

safety issue and then standing down his employees when they

reacted by taking industrial action (ACTU Evidence, p. 610). Moreover the removal of the Commission's present powers would

enable employers to order stand-downs in circumstances in which

the Commission had previously refused to insert clauses (ASOA Submission 7, p. 2).

5.41 The union movement argued that another effect of the

negation of the Commission's role would be the undermining of

the Commission's capacity to settle the underlying disputes

which give rise to the industrial action.

5.42 A potential problem, which is of particular concern to unions with members in the transport industry, is that if an

employer exercises a power of automatic stand-down workers may

be stranded in foreign ports without adequate means of support (AAFEA Evidence, p. 217). The employer's obligation to pay wages or allowances would cease under sub-section (10) and any award

obligation to maintain payments pending return to home base

would be overridden by sub-section (11).

O B S E R V A T I O N S , C O N C L U S I O N S A N D R E C O M M E N D A T I O N S

5.43 The Committee is unable to form an opinion from the

evidence whether 'the right of employers to stand-down employees

as a result of industrial action without reference to the

Conciliation and Arbitration Commission is consistent__w_i.t_h-modern industial practices.' It is the Committee's opinion, however, that the provisions of the Conciliation and Arbitration

89

Amendment Bill 1982 as drafted, would erode the authority of the

Commission, and would deny natural justice to aggrieved and

unfairly treated employees. The Committee considers that the

provisions of the Bill would not 1 contribute to industrial

peace', but would create industrial instability.

5.44 The Committee therefore recommends that the provisions

in the Conciliation and Arbitration Amendment Bill 1982 which provide for 'automatic stand-downs' be not passed by the Senate.

5.45 The major concern of employers with respect to the

current stand-down provisions are the perceived delays which

occur in proceedings taken pursuant to section 33A of the Conciliation and Arbitration Act 1904. The Committee has

accordingly made some suggestions as to how the current Act

might be amended to overcome these concerns.

5.46 The Committee suggests that a course of action that

takes account of the concerns underlying the provisions of the Bill would be for the existing section 33A to be tightened so as to require the initial hearing of applications for the insertion

of stand-down clauses to take place within two working days after lodgement. Determination would follow as soon as possible thereafter depending on the surrounding circumstances. A right of appeal to the Full Bench would remain in section 33A. It

would be exercisable within twent-yone days and appeals would

have to be heard within three working days of lodgement. Appeals

would not be subject to the restrictions imposed by section 35.

5.47 The Committee considers that it would be desirable for

these issues and proposals to be the subject of consultation between the Government and the NLCC and it recommends this

course accordingly.

90

CHAPTER 6

OTHER PROVISIONS OF THE

CONCILIATION AND ARBITRATION AMENDMENT BILL 1982

Common Rule Procedures

(Sub-clause 2(3) and clause 8 of the Conciliation and Arbitration Amendment Bill 1982)

6.01 At present section 49 of the Act enables the Commission

to declare an award or any term of an award to be a common rule in a Territory if it appears necessary or expedient to do so to

prevent or settle an industrial dispute in any industry. Where

an award or term of an award is declared to be a common rule, it

becomes applicable to all employers and employees in the

industry concerned, subject to such exceptions as the Commission may make.

6.02 Proposed section 49A, contained in clause 8 of the

Conciliation and Arbitration Amendment Bill 1982, is designed to

simplify the procedure for variation of common rules in

Territories. There is general consensus in the industrial

relations community that the present procedure is cumbersome and time-consuming. It is intended that appropriate supporting

Regulations will be made. (For a full description of the purpose

of the provision and the deficiencies of the current section 49

and supporting Regulations, see DEIR Evidence, pp 1285-1287).

6.03 No objections to the proposed provisions were raised in evidence before the Committee and it is supported by the ACTU:

91

The new section is substantially in accord with the recommendations made by the NLCC. As such, the ACTU supports the proposed

amendment (ACTU Evidence, p. 635) .

Financial Assistance

(Clauses 15, 28 and 29 of the Conciliation and Arbitration Amendment Bill 1982)

6.04 At present provision is made under the Act for

financial assistance to be granted in certain circumstances to a member of a registered organization who is taking proceedings

under specified provisions of the Act.

6.05 Clauses 15 and 28 repeal existing sections 141A, 141B

and 16 8 of the Act. Clause 29, which inserts a new Part XA,

largely re-enacts these sections, but with wider criteria for assistance to be granted. The proposed Part XA (Financial

Assistance in Connection with Certain Proceedings):

. extends financial assistance under the Act to

proceedings under Part IXA (Validating Provisions for

Organizations) and section 144 (Entitlement to

Membership of Organizations);

. consolidates the financial assistance provisions of the

Act (which are proposed to be repealed by clauses 15

and 28 of the Bill) and the new Part XA will cover

financial assistance in proceedings under sections 140

(Requirements as to Rules), 141 (Direction for

Performance of Rules), 144 (Entitlement to Membership

of Organizations), and 159 (Applications for Inquiries Respecting Elections) and Part IXA of the Act;

92

. provides for financial assistance to be uniformly

available where approved by the Attorney-General on a

'needs' basis, i.e ., the likelihood of hardship being

caused to the person concerned by the costs and

expenses of the relevant proceedings; and

. takes account of the fact that the current rule nisi

procedure is inconsistent with general Federal Court of

Australia practice. The Bill conditions a grant of

financial assistance for proceedings under sections 140

and 141 on a certificate from a Federal Court Judge as

to the prima facie merits of the applicant's suit rather than on the rule nisi procedure which is to be abolished - proposed section 181B. At present financial

assistance is only available under section 140 or 141

proceedings to a person who has obtained a rule nisi

from the Federal Court (i. e . , ' a rule to show cause'

why an order should not be made in an action under

either of these sections against the respondent). (For a fuller description of the purpose of the provision see DEIR Evidence, pp. 1290-1291) .

6.06 The only organisation to make substantial comment on

the new provision was the ACTU (see ACTU Evidence, pp. 637-639). The ACTU believes there is a need for a complete tr i-partite review of the provisions of the Act which relate to financial assistance, and that such a review should consider the following

matters:

whether the power to grant financial assistance should

be transferred from the Attorney-General to the

Industrial Registrar;

a provision for union officials and unions to apply for

financial assistance in appropriate circumstances;

93

. the need to avoid financial assistance provided under

the Act being used to fund litigation aimed at

disrupting the activities of unions;

. the need to specify in the Act the criteria to be

applied in dealing with applications for financial

assistance; and

. the need for a review procedure for persons aggrieved

by a decision with respect to financial assistance

(ACTU Evidence, pp. 638-639).

6.07 The Bill provides that an organization is not eligible

to be given financial assistance. The ACTU stated that it believed that the present provision allowing unions to apply for

financial assistance in relation to disputed elections should be

retained in the Act (current section 168 - Costs) . It further

stated that proposed section 181F contained in clause 29 of the

Bill will limit persons (other than applicants) who may be granted financial assistance in relation to their involvement in an election inquiry, and that this may prevent persons from

protecting their interests in such inquiries.

6.08 In summation the ACTU said:

In view of the inadequate consultation with the ACTU about the financial assistance provisions, the relevant clauses of the Bill should be withdrawn to allow this

consultation to take place (ACTU Evidence, p. 639) .

94

T e r m o f O f f i c e

( C l a u s e 1 1 o f t h e C o n c i l i a t i o n a n d A r b i t r a t i o n Amendment

B i l l 1982)

6.09 Under paragraph 133(1) (db) of the Act the rules of an

organization cannot permit an elected officer to hold office for

a period exceeding four years without being re-elected. The

section may lead to the undesirable result in isolated cases

where office holders elected for a four year term are due to

retire under the rules of the organization (by reason of their

age) shortly after their term of office expires. Disinclination

to contest an election for another necessarily abbreviated term, may force such office holders into early retirement, and they could be disadvantaged in terms of age pensions or

superannuation benefits which could otherwise have accrued.

6.10 Clause 11 of the Conciliation and Arbitration Amendment

Bill 1982 proposes amendments to existing section 133 of the Act

to allow employer and employee organizations to provide in their rules that a full-time officer who is due to retire within twelve months after the expiration of the period of which he was elected may remain in office until he retires. (See proposed

sub-section 133(4E)). The provision will contain a safeguard for

electors in that it will require an organization with such a provision in its rules to advise members in relevant elections

of the details of any extended term of office that may apply in respect of the candidates in those elections. Provision is also

made for an organization to extend the term of office of an

official holding office at the time of the commencement of the

Bill. (See proposed sub-section 133(4F)) .

6.11 The proposal occasioned no opposition in evidence

presented to the Committee and is supported by the ACTU as being in substantial accord with the recommendations of the NLCC (see

ACTU Evidence, p. 637) .

95

C a s u a l V a c a n c i e s

( C l a u s e 1 2 o f t h e C o n c i l i a t i o n a n d A r b i t r a t i o n A m e n d m e n t

B i l l 1 9 8 2 )

6.12 Under sub-section 133(1) of the Act, all office holders

in organizations must have been elected by one of three methods:

. a direct voting system;

. a collegiate electoral system of the type specified in

sub-section 4(1);

. a collegiate electoral system of the type specified in sub-section 4(5).

6.13 Once elected, an officer may, for a variety of reasons,

be compelled to vacate his office before expiry of the term for

which he was elected. At present the Act offers inadequate

guidance as to how such vacancies should be filled. Where the unexpired term of office is relatively short, it may be

inconvenient and expensive for an organization to hold elections

in accordance with sub-section 133(1). There is, however,

judicial authority to the effect that, where the unexpired portion of the term does not exceed twelve months, the vacancy may be filled otherwise than in accordance with sub-section

133(1), for example, by appointment.

6.14 While this provides an adequate solution where a casual

vacancy occurs in an office normally filled by direct election,

its application to vacancies in colleges may create some

difficulties. The definition of 'collegiate electoral system' comprehends a first stage at which persons are elected directly

and a subsequent stage (or stages) at which persons are elected

by and from those 'elected at the next preceding stage'. This

does not take account of the situation where a position on the college has been filled otherwise than by election, for example,

96

where a casual vacancy has been filled by appointment.

Technically, this may mean that an election by and from that

college does not conform with the requirements of the Act, a

situation which could have adverse consequences for the management of the organization.

6.15 Legislative prescription as to the filling of casual

vacancies is needed in order to preclude uncertainty and to

cater for the problems which may arise in the case of collegiate

electoral systems (for more detail see DEIR Evidence, pp. 1282-1284) . Proposed new section 133AB is designed to overcome

these problems.

6.16 No evidence was presented in opposition to the last matter, i.e., removing doubts in relation to the filling of

casual vacancies under a collegiate system of electing officials

of organizations. The ACTU stated that the provision is in line

with recommendations of the NLCC and that the ACTU supported the

proposal accordingly.

6.17 The ACTU and the ECU had reservations about the other

provisions. For example, the FCU stated in its submission that:

... its [the FCU1s] view is that a casual

vacancy should be able to be filled for the unexpired portion of the period of office in which the vacancy has occurred, or until the next ordinary election of the electorate

occurs.

This would not remove any element of

democratic control. However it would overcome the 1 domino1 effect of a casual vacancy in a senior office, which is filled by a less senior officer, thus creating a further

vacancy, and so on down the line.

The filling of these positions would not be by 'appointment' but by election 'by and from1 a conference of Council (or other body) which itself has been elected by the

membership (FCU Evidence p. 309).

97

6.18 The ACTU also saw practical problems with the proposal

for a twelve month limitation on filling casual vacancies by

elections other than in accordance with sub-section 133(1):

The same twelve month maximum period will apply to offices of major and minor

importance within organizations. In relation to unions, this means that the same

limitations will apply in relation to the filling of a casual vacancy for the position of Federal Secretary as for the position of Branch Councillor. This is unreasonable and unwarranted.

The new provision will require unnecessary expenditure (by organizations and/or, where the Commonwealth Electoral Office is

involved, by the Government) in conducting ballots to fill casual vacancies. It may be necessary for a costly ballot of all the

members of an organization to be conducted in order to fill a position of relatively minor importance in the organization with a short unexpired term of office (e.g., fifteen months) .

A casual vacancy may lead to a string of

casual vacancies as office-holders, through election, 1 move up one', in the hierarchy of the organization. In this way, the filling of a casual vacancy may have a chain reaction effect in an organization necessitating a string of costly ballots (ACTU Evidence, pp. 636-637).

6.19 The DEIR Submission asserted that:

Inclusion of the new provision is in line with a recommendation of the National Labour Consultative Council and the principle is endorsed by the ACTU and the CAI (DEIR

Evidence, p. 1282).

6.20 The ACTU stated that the problems (outlined above):

98

.. . led the ACTU and the CAI to suggest

providing greater flexibility for

organizations in dealing with casual

vacancies so as to avoid costly and

unnecessary ballots. An amendment along the lines suggested by the ACTU and the CAI

(namely, to allow for the filling of casual vacancies for an unexpired term of office of less than three years by a procedure other than by election in accordance with

sub-section 133(1) would be more appropriate than the provision in the amendment Bill (ACTU Evidence, p. 637)·

Deregistration (Clauses 4, 5, 13,14, 17 and 22)

6.21 The Government has introduced these proposals, as a

result of representations from the Government of Western Australia, to make federal legislation more effective in

processing the deregistration of trade unions for industrial

misconduct. At present a State trade union deregistered for

industrial misconduct under State legislation can obtain federal

registration under the Conciliation and Arbitration Act 1904, providing it meets the general statutory requirements for registration. In the same way a branch of a federally

deregistered trade union could be registered in a State which

provides for the registration of trade unions.

6.22 The amendments proposed to the Act in the Conciliation

and Arbitration Amendment Bill 1982 will:

. require the Industrial Registrar to deny registration

to a trade union deregistered under prescribed

statutory provisions of a State, or which in the

opinion of the Registrar was a body substantially

similar to such a State trade union - sub-clause 4(1)

and clause 17. The purpose of the reference to a

1 substantially similar1 body is to prevent such a union

avoiding the purpose of the legislation by merely

dissolving itself and reforming under a new name.

99

provide for prescription by regulation of the relevant

provisions of State legislation to overcome the

difficulty of providing in the legislation a definition

of such terms as 1 industrial misconduct1 which would be

compatible with various State legislative grounds for

deregistration - sub-clause 4(1). Such prescriptions would only relate to State deregistration provisions

which applied where industrial misconduct was involved.

preclude the Industrial Registrar from consenting to an

alteration of the rules of a federally registered trade

union in so far as the alteration would result in

'prescribed employees' - clause 5, see below - becoming

eligible for membership of that organization.

This prohibition applies to alterations to eligibility

rules under existing section 139 - sub-clause 13(2) -

and to alterations under proposed section 139A to make a federally registered trade union into an industry union - clause 14.

It is not intended, however, that 'prescribed

employees' who come within the existing eligibility rule of federally registered trade unions be excluded

from admission to membership.

'Prescribed employees' are persons who at the time a

State trade union was deregistered (for industrial

misconduct) were eligible to be members.

exclude, by virtue of proposed sub-section 4B(3), from

the jurisdiction of the Australian Conciliation and

Arbitration Commission the power to deal with any

industrial dispute which involved a 'prescribed claim' as defined in proposed sub-section 4B(1) - clause 5.

100

Effectively this means that a claim for an award or the

extension of an existing award to cover any 'prescribed

employees' (see above) who were covered by a State

award which was binding on a deregistered State trade

union before its deregistration will be outside the

Commission's jurisdiction (DEIR Evidence, pp. 1278-1280) .

6.23 The Department made these additional points about the

proposals:

. appeals to the Commission under section 88F of the

Conciliation and Arbitration Act will lie in respect of decisions by the Industrial Registrar not to consent or to deal with alterations to eligibility rules of

federally registered trade unions to take in

'prescribed employees'.

. the amendments will be brought into operation on a State by State basis as each relevant State passes reciprocal State legislation. As was said on the Second

Reading of the Conciliation and Arbitration Amendment

Bill 1982 - House of Representatives Hansard of 25 March 1982 at p. 1474 - this aspect will be the subject

of further discussion with State Ministers for Labour.

. it is not proposed that where a trade union is

registered in both federal and State jurisdictions, its

deregistration in either jurisdiction should be a

ground for, or automatically result in, deregistration

in the other jurisdiction.

. it is not intended in terms of the envisaged reciprocal

arrangements that employees who are members of a

deregistered organization should be deprived of award

101

coverage since their employers will continue to be

respondent to awards in the jurisdiction in which the

organization was deregistered.

. it is not intended under the reciprocal arrangements

that employees who are members of a deregistered union

should not be able to join another State or federally

registered union provided that the union concerned

already has coverage of that class of employee (DEIR Evidence, pp. 1280-1281).

6.24 The then Minister for Industrial Relations, Mr Viner,

said in his Second Reading speech on 25 March 1982 that:

To operate, this part of the Bill requires reciprocal State legislation. I will be raising this matter with my colleagues, the State Ministers for Labour (H of R Hansard p. 1474).

6.25 While the Western Australian Government has indicated that it intends to introduce reciprocal legislation, no State Government has yet done so, and no Government other than the Western Australian Government has so far indicated that it will

do so in the future. Unions in Tasmania and Victoria will not be

affected by the legislation as there is no provision in those States' laws for the registration of unions.

6.26 The only evidence received on this question came from

the ACTU and the ECU. In its submission, the ACTU said:

The new provisions will have very limited application . . . the provision with respect to membership coverage only applies where it is

necessary for a federal union to extend its constitution rule in order to cover members of a branch of the union which is a

de-registered State union. In most cases, such an extension would not be necessary as most members of a State branch would already be members or, at least, eligible for

102

membership of the federal union. Fourthly, the new provisions only erect some barriers, which are not necessarily insurmountable, to the absorption and the representation of the members of a de-registered State union by a

federal union (ACTU Evidence, p. 632).

The FCU observed:

Leaving aside the merit of the stated

intention, the question arises as to its necessity. It would be hard to visualise any area of employment in which a State union exists where that area of employment is not

already covered by a federally-registered organization.

In these circumstances, the State Union's application for registration would result in the automatic opposition by those already registered in respect to that class of

employment, in the Federal area (FCU Evidence, p. 310) .

6.27 The ACTU in its submission drew attention to what it

perceives to be serious implications for industrial relations and for the federal conciliation and arbitration system if the new provisions are applied. It summarised these implications as

follows:

1. Where the members of a de-registered State union are or become members of a federal

union, the federal union may make claims on employers with respect to their wages or conditions. In the event that these claims cannot be resolved amicably and disputes

occur, the Conciliation and Arbitration Commission will be unable to deal with the disputes or to make awards in settlement of such disputes. This limitation on the

jurisdiction of the Commission will mean that

. neither employers nor the federal union will be able to resort to conciliation and arbitration machinery to resolve such disputes;

. in consequence, disputes involving such workers may lead to more disruption and loss to the employees and employers concerned and to the community;

103

. federal unions will be denied the right to service their members in a particular State by seeking an extension of, or by the making of, a federal award.

2. The new provisions will have the effect of freezing the operation of a federal award in a State so that, even if for unrelated

reasons the federal union considered it desirable to have the award extended to bind employers who had employed members of the de-registered State union, it would not be able to do so.

3. The members of a de-registered State union will be unfairly penalised by having their terms and conditions of employment left unregulated by federal or State awards. This may result in an erosion of their living

standards and to exploitation in their

employment. It is especially unfair when the grounds for the de-registration of the State union may have been entirely unrelated to the conduct of those members.

4. The new provisions may also have

implications for the federal structure of many unions. The provisions may weaken

federal unions by emphasising the independent existence of State branches registered under State legislation.

5. As the grounds for de-registration of unions under federal and State legislation differ, it is inappropriate for a State union and its members to be penalised in the

federal system for conduct which is not

proscribed under the federal Act (ACTU

Evidence, pp. 632-633) .

6.28 In his Second Reading speech the then Minister stated

his intention of raising the question of reciprocal legislation

with the State Ministers for Labour. In its submission the ACTU indicated that some problems with regard to the new provisions

relating to deregistered State unions have been referred to by a

Working Party established by the Commonwealth and State

Ministers for Labour to examine proposals for complementary

deregistration.

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O B S E R V A T I O N S , C O N C L U S I O N S A N D R E C O M M E N D A T I O N S

C o m m o n R u l e P r o c e d u r e s ( P a r a s 6 . 0 1 t o 6 . 0 3 )

(Sub-clause 2(3) and clause 8 of the Conciliation and

Arbitration Amendment Bill 1982).

6.29 The Committee recommends the adoption of these

provisions.

F i n a n c i a l A s s i s t a n c e ( P a r a s 6 . 0 4 t o 6.08)

(Clauses 15, 28 and 29 of the Conciliation and Arbitration Amendment Bill 1982).

6.30 The Committee notes that in his second reading speech

the then Minister referred to these measures as enlarging the

scope for financial assistance and as a consolidation exercise. To the extent that they achieve these objectives the Committee recommends their adoption. However the Committee notes that

certain existing rights to financial assistance in relation to

election inquiries are limited by the provisions under

consideration and recommends that the Government redraft these

provisions to ensure the maintenance of existing rights.

T e r m of O f f i c e ( P a r a s 6 . 0 9 t o 6.1 1 )

(Clause 11 of the Conciliation and Arbitration Amendment Bill

1982) .

6.31 The Committee recommends the adoption of this clause.

C a s u a l V a c a n c i e s ( P a r a s 6 , 1 2 t o 6.20)

(Clause 12 of the Conciliation and Arbitration Amendment Bill

1982) .

105

6.32 The Committee recommends the adoption of the provisions

of this clause insofar as it is designed to remove doubts in

relation to the filling of casual vacancies under well

established collegiate systems of electing officials of

organizations of employers or employees.

However the Committee recommends that the Government redraft the relevant provisions to enable the greater flexibility sought by

major employer and union organizations.

De-registration (Paras 6.21 to 6.28)

(Clauses 4, 5, 13, 14, 17 and 22 of the Conciliation and

Arbitration Amendment Bill 1982) .

6.33 The Committee endorses the view that, where a State

union is de-registered in its own jurisdiction for actions

inimical to the interests of the State jurisdiction and the parties thereto, such union should not be able to move into the Federal jurisdiction to avoid the consequences of its actions.

The Committee considers that this view is shared by all

responsible participants in both the Federal and State industrial relations systems, but submissions made to the

Committee cast doubt on the efficacy of the proposals under

consideration.

The then Minister advised in his second reading speech that the

provisions require reciprocal State legislation and that the

Government proposes to raise this question with State Ministers for Labour.

106

The Committee considers that the proposals would also benefit

from further detailed study by the industrial relations

community and in particular recommends that the Government

canvass these proposals with State Ministers and the NLCC prior

to their final consideration by the Senate.

By order of the Committee (Brian Barradine)

Chairman

19 October 1982

107

DISSENTING REPORT BY SENATOR HAMER,

SENATOR WALTERS AND SENATOR THE RT. HON. R.G. WITHERS

Comments on Paragraph 1.02 of Introduction

The Interim Report recorded that ' a majority of the

witnesses presenting evidence to the Committee were of the opinion that the major purposes the Bills were meant to achieve

would, in a variety of ways further disturb the currently

unsettled industrial climate and would not contribute to industrial peace'.

The Committee did not form a conclusive view on those

submissions at the time of the presentation of the Interim

Report, and at the time of the Final Report there was still no

concerted opinion on the submissions.

We believe that the witnesses presented evidence to the Committee only as the proposed legislation affected short term industrial peace and the current industrial relations climate.

We conclude that none of these witnesses provided evidence on

the longer term development of industrial relations and the

effect of the legislation on the future development of

Australian industry.

Abolition of Preference

We dissent from the Observations, Conclusions and

Recommendations of the Select Committee on the subject of

preference for union members.

We accept that our present National Conciliation and

Arbitration structure is based on the assumption that the unions

concerned will adequately represent the interests of all

109

employees, and any legislative actions which would seriously

damage the capacity of unions in this respect would not have our

support. We do not believe the Government's present proposals

would have such an affect.

In considering legislative attitudes towards unionism, one also has to consider the rights of individuals not to join unions, and how those rights might be made effective in the present industrial climate. If union activities could be confined to matters concerned with the workplace, one could make

a case for de facto compulsory unionism (with provision for

1 conscientious1 objection) . However, the very great difficulty

of drawing a clear distinction between workplace activities and actions in the wider community (which might be claimed to

improve conditions in the workplace), and the manifest impossibility of restraining union activities to the workplace

anyway, make this a fruitless exercise. We therefore believe

that the Government should do whatever it can to ensure that the

decision of an individual whether or not to join a union is a genuine free choice, and that the individual's decision has no effect on the prospects of employment in that workplace.

If unions want members, they should attract them by the services they provide for their members.

A u t o m a t i c S t a n d - d o w n s

We dissent from the recommendation of the Committee

(Para 5.44) that the provisions of the Conciliation and

Arbitration Amendment Bill 1982 which provide for 'automatic stand-downs' be not passed by the Senate.

When the original Conciliation and Arbitration Act was

passed in 1904, it was the hope of some proponents that strikes

would become a thing of the past. Disputes, it was hoped, would

110

be solved by conciliation; if this failed, they would be

determined by arbitration, which would be binding on all

parties.

It is well known that these hopes have never been

realised. The trade union movement insists on its unfettered

right to strike (or the right to withdraw labour, as it is

sometimes euphemistically described), and does not accept the

concept of binding arbitration - binding on unionists, that is.

It seems to us perverse for the trade union movement at

the same time to claim that, before an employer can have the right to stand-down employees who can not be usefully employed because of strike action, the employer should have to argue his

case before an arbitrator, whose decision is binding on the

employer.

We believe employers should have comparable rights to

stand-down employees who cannot be usefully employed because of strike action, as unionists have to strike.

SENATOR D.J. HAMER, D.S.C

SENATOR M.S. WALTERS

SENATOR THE RT. HON. R.G. WITHERS

111

warn

·.·· . *

V'

· :

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APPENDIX 1

T.IST OF PERSONS AND ORGANIZATIONS WHO PROVIDED THE COMMITTEE WITH SUBMISSIONS OR OTHER WRITTEN MATERIAL

Name Submission No.

Administrative and Clerical Officers' Association 27 Preference to Unionists Precedents 27A

Amalgamated Metal Workers' and Shipwrights' Union 52 - National Council Amalgamated Metal Workers' and Shipwrights' Union 70 - Brighton Branch Qld Amalgamated Society of Carpenters and Joiners

of Australia 23

A.M.P. Society Staff Association 63

Association of Employers of Waterside Labour 34

Association of Professional Engineers, Australia 36 Association of Professional Scientists of Australia 57 Australasian Airline Flight Engineers' Association 18 Australian Bank Employees' Union (Federal Executive) 19

Australian Bank Employees' Union (Tasmanian Division) 15 Australian Boot Trade Employes' Federation 49

Payment of Affiliation Fees to Charity 49A

Australian Council of Trade Unions 40

Additional Information, dated 6 September 1982 4QA Extract from Executive Decisions - Industrial 40B Unionism Australian Hairdressers, Wigmakers and Hairworkers

Employees' Association 28

Australian Institute of Drycleaning - N.S.W. 26

Australian Insurance Employees' Union 24

Australian National 45

Australian National University Administrative and Allied Officers Association 53

Australian Railways Union 50

Australian Retailers' Association 46

Comments on new section 144A 46A

Australian Rope and Cordage Workers' Union 29

Australian Shipping Officers' Association 7

Australian Textile Workers Union 49

Australian Wool Selling Brokers Employers' Federation 65 Bakery Employees and Salesmens Federation of Australia (Tasmanian Branch) 69

Bridgestone Australia Ltd. 66

Cinematograph Exhibitors' Association 62

Clothing and Allied Trades Union of Australia 42

Stand-down Provisions 42A

Confederation of A.C.T. Industry 30

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Confederation of Australian Industry 51

Section 33A Applications 1982 51A

Additional Information, dated 1 September 1982 51B CSIRO Technical Association 13

Department of Employment and Industrial Relations 55 Additional Information, dated 19 August 1982 55A Additional Information, dated 20 August 1982 55B Summary of Stand-downs 55C

Additional material on stand-down applications resulting from TWU dispute 1981 55D

Department of Industrial Affairs and Employment, South Australia Devonport Trades and Labour Council 54

Fawkes, Mr R., Riverton, W.A. 16

Federated Clerks Union of Australia 31

Freedom of Association of Preference 31A

Federated Engine Drivers' and Firemens' Association of Australasia 59

Fry, Mr H.W., Curtin, A.C.T. 58

Gillie, Mr H.R., Zeehan, Tasmania 17

Gooden, Mr E.W. and Pearson, Mr J ., Black Forest, South Australia 22

Industrial Registrar (Acting), South Australia 33 Kennedy, Ms P.M. and Clarke, Ms C.D., Canberra, A.C.T. 32 Kidd, Mrs K ., Karrinyuh, W.A. 8

Livestock and Grain Producers' (Industrial) Association of N.S.W. 12

Macken, Mr A.J., North Balwyn, Vic. 4

Master Builders' Federation of Australia 48

Master Painters', Decorators' and Signwriters' Association of N.S.W. 43

Master Painters', Decorators' and Signwriters' Association of Tasmania 25

Musicians' Union of Australia 11

Non Official Postmasters' Association of Australia 44 Olsson, Mr Justice L.T., Adelaide, S.A. Pharmacy Guild of Australia 64

Queensland Professional Officers' Association 2 Royal Australian Nursing Federation 47

Shop, Distributive and Allied Employees' Association 41 Membership agreement between the major retailing companies and the unions 41A

Preference and Voluntary Unionism - Federal/State Conflict 41B

Simplicity Funerals Pty. Ltd. 6

Slaters, Tilers and Roofing Industry Union of Victoria 38

South Australian Institute of Teachers 71

Squires, Mrs L ., St Ives, N.S.W. 5

Stewart, Mr B.V.M., Kalamunda, W.A. 9

Sydney Chamber of Commerce 61

Tasmanian Baking and Allied Trades Union 3

Telecom Australia 56

Timber Trade Industrial Association 68

Transport Workers' Union of Australia 10

114

Trustee Companies' Officers' Association 14

Union of Postal Clerks and Telegraphists 20

Victorian Government 60

Additional Information, dated 30 August 1982 60A Victorian Operative Bricklayers' Society 37

Victorian Plaster Industry Workers' Union 35

Victorian Plasterers' Society 39

Western Australian Government 67

Western Australian Guild of Furniture Manufacturers (Inc) 21

Williamson, Mr D. Cronulla, N.S.W. 1

Wool Brokers' Staffs Association 14

Note : The Committee, in accordance with Standing Order 308, authorised the disclosure of all submissions on 26 October 1982.

115

>

LIST OF WITNESSES WHO APPEARED BEFORE THE COMMITTEE

BITMEAD, Mr Stanley, Federal Secretary, Australian Boot Trade Employes' Federation

BOULTON, Mr Alan James, Legal Officer, Australian Council of Trade Unions

BURKE, Mr William, Federal Industrial Relations Officer, Transport Workers' Union of Australia

BYRNE, Mr Redmond Vincent, Principal Legal Officer, Business Affairs Division, Attorney-General's Department

CAMBOURN, Mr Jack, General Secretary, Federated Engine Drivers' and Firemens' Association of Australasia

CAMPBELL, Mr George, Assistant National Secretary, the Amalgamated Metal Workers' and Shipwrights' Union

CIRULIS, Mr Andrejs, Deputy Chief Australian Electoral Officer, Australian Electoral Office

CREAN, Mr Simon, Junior Vice-President, Australian Council of Trade Unions

de BRUYN, Mr Joseph, National Secretary, Shop, Distributive and Allied Employees' Association

DENNIS, Mr John Neale, Assistant General Secretary, Union of Postal Clerks and Telegraphists

DONOHOE, Mr William Roch, Deputy Secretary, Department of Labour and Industry, Victoria

ERSKINE, Mr David Bennett, Executive Director, Association of Employers of Waterside Labour

FAIREY, Mr Peter Geoffrey, Secretary, Australian Institute of Drycleaning - New South Wales

FOGARTY, Mr Adrian Daniel, First Assistant Secretary, Department of Employment and Industrial Relations

GILES, Mr William Charles, Secretary, Victorian Operative Bricklayers' Society

117

GREEN, Mr Stanley Ormand, Chief Industrial Officer, Association of Professional Engineers, Australia

HARVEY, Mr Keith Young, Research Officer, Federated Clerks Union of Australia

HUGHES, Mr William Arthur Charles, General Secretary and Treasurer, Australian Textile Workers Union

HURFORD, Mr Christopher John, M.P., Adviser, Transport Workers' Union of Australia

JOHNSTON, Mr Ian Campbell, Senior Executive Officer, Australian Electoral Office, New South Wales

JOWETT, Mr Roger Gavin, National Research Officer, Australian Railways Union

LANGMEAD, Mr David Cameron, Industrial Officer, Australian Insurance Employees' Union

MACKEN, Mr Antony John, private capacity, Melbourne, Victoria

MAHER, Mr James Bernard, National President, Shop, Distributive and Allied Employees' Association

MANNING, Mr Ian Arthur, Industrial Officer, the Livestock and Grain Producers' Association of New South Wales

MARTIN, Mr John David, National Director, Australian Retailers' Association

MAYNES, Mr John Peter, National President, Federated Clerks Union of Australia

MCLAUGHLIN, Mr James Duncan, Federal Secretary, Amalgamated Society of Carpenters and Joiners of Australia

McLEOD, Mr Kenneth Hugh, Federal Secretary, Australian Insurance Employees' Union

MUNRO, Mr Paul, National Secretary, Administrative and Clerical Officers' Association

MYLECHARANE, Mr Peter, Past President, Australian Institute of Drycleaning - New South Wales

NOAKES, Mr Bryan Maxwell, Director, Confederation of Australian Industry

PEARCE, Mr James Harold, Senior Industrial Officer, Administrative and Clerical Officers' Association

118

PEARSON, Mr Robert Alan, General Secretary, Association of Professional Engineers, Australia

PETERSON, Mr Frederick Eugene, General Secretary, Clothing and Allied Trades Union of Australia

POLITES, Mr George, Director-General, Confederation of Australian Industry

POPHAM, Miss Carole Ernestine, General Secretary, CSIRO Technical Association

POULTER, Mr Douglas Gideon, Assistant Secretary, Department of Employment and Industrial Relations

ROWLING, Mr Walter Henry James, General Secretary, Union of Postal Clerks and Telegraphists

SQUIRES, Mrs Lesley Audree, private capacity, St Ives, N.S.W.

WILLIAMSON, Mr Eric John, Federal Secretary, Australasian Airline Flight Engineers' Association

WRIGHT, Mr Michael Grahame, Executive Advisor to the Director, Office of Industrial Relations, Victoria

119