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Thursday, 14 May 1987
Page: 3164

Mr WILLIS (Minister for Employment and Industrial Relations)(10.21) - I move:

That the Bill be now read a second time.

The Industrial Relations Bill is an historic legislative initiative by the Hawke Labor Government. The Bill follows the first thorough review of Federal industrial relations machinery since the Conciliation and Arbitration Act was proclaimed in 1904. The proposals which it incorporates will establish a Federal industrial relations system in keeping with Australia's economic and industrial needs.

The Bill is based primarily, but by no means exclusively, on the findings of the Tripartite Committee of Review into Australian Industrial Relations Law and Systems. The Committee was set up by this Government soon after it came to office in 1983. Its establishment reflected broad-based acknowledgment that the present Conciliation and Arbitration Act required a major overhaul. That Act, one of the oldest of this Parliament, is a patchwork of amendments. Its structure is confusing and many of its provisions are unduly complex and out of date. More importantly, the Government was concerned that all avenues should be explored to ensure that Australia would have the most appropriate industrial relations system to meet its present and future needs. The Committee members - Professor Keith Hancock, now a Deputy President of the Commission, Mr George Polites and Mr Charlie Fitzgibbon - were outstandingly well qualified for the task. The Committee was given a very broad charter. It was required to examine, report and make recommendations on:

All aspects of Commonwealth law relating to the prevention and settlement of industrial disputes.

All aspects of Commonwealth law relating to the recognition and operation of associations of employers and workers.

The extent of which and the manner in which the Federal and State industrial relations institutional and legislative arrangements might better inter-relate.

The terms of reference were unanimously endorsed by the National Labour Consultative Council and the Conference of Labour Ministers. The Inquiry was exhaustive. The Committee sought submissions from interested parties, consulted widely and undertook an extensive program of public hearings.

The Committee went out of its way to ascertain the views of critics of the present system, including conducting a conference on `Alternatives to Arbitration', which brought together academics and industrial relations practitioners specifically to address alternatives to the present system.

The Committee's report was presented in April 1985. Its central conclusion was that the existing system of conciliation and arbitration should be retained, but that it should be extensively modified. Despite devoting considerable attention to an examination of alternative systems, such as collective bargaining, the Committee had been unable to find convincing arguments that another system could produce better results. The Committee concluded that `no substantial case had been made that industrial relations would improve if conciliation and arbitration were abandoned in favour of some other system'.

As I indicated soon after the report was released, the Government agrees strongly with the Committee's conclusion that conciliation and arbitration should remain the mechanism for regulating industrial relations in Australia. This view is based on a clear understanding of the social, historical and structural characteristics of our industrial relations system as it has evolved over the past 80 years. It recognises the federal nature of government in Australia and the constitutional constraints imposed on the Commonwealth at Federation. Under our federal system of government, Federal and State tribunals work in parallel in each State. The State tribunals are similar to the Federal body in that each is based on a conciliation and arbitration model. In developing appropriate legislation to regulate industrial relations on a federal basis, regard must be had to the States' industrial systems and the need for the federal system to operate concurrently with them.

Furthermore, the Commonwealth power to determine the Federal industrial relations framework derives principally from its power to provide for conciliation and arbitration of interstate industrial disputes. The Constitution does not lend itself readily to the development of any other industrial relations system and, indeed, imposes real difficulties for those who would seek to implement an alternative system. The Government's support for continuance of the conciliation and arbitration system also stems from its recognition of the immense social benefits which have stemmed from the system of awards providing minimum conditions of employment for the vast majority of wage and salary earners. By this means, we have, to a far greater extent than most comparable countries, prevented the exploitation of employees who lack bargaining power. The system has also provided a capacity for development and delivery of a responsible national wages policy which has been effectively utilised only since the present Government came to office.

The Bill reflects many of the Committee's recommendations, but it is by no means a faithful legislative replica of the report. Indeed, some key recommendations of the report have been rejected, whilst others have been substantially varied. There has been extensive consultation on all recommendations between the Government, the Australian Council of Trade Unions and the Confederation of Australian Industry through the National Labour Consultative Council and its legislation sub-committee. While agreement was reached during such consultations on the majority of changes which the Committee proposed, there remained a number of areas of disagreement. In respect of these particular issues the Government has not shirked from making some hard decisions. Rather it has, I believe, acted responsibly in the interests of the community as a whole in determining these matters.

The changes to the industrial relations system which the Government intends to effect are extensive, without being a leap in the dark. They represent an evolutionary development of our industrial relations system which addresses various inadequacies in that system, increases its efficiency and effectiveness, and makes it relevant to contemporary requirements.

The Government's Industrial Relations Strategy

This legislation is a key element in the Government's industrial relations strategy. By providing a much improved industrial relations framework, we will be able to build on our very considerable achievements on the industrial relations front. These achievements have flowed from our development of a co-operative, rather than confrontationist, approach to trade unions, from the successful application of appropriate wages policy and, more latterly, from improvements in the work place relationships and practices.

The success of the Government's strategy to date is undeniable. During the Hawke Government's period in office, there has been a dramatic improvement in industrial relations outcomes. Time lost in industrial disputes has fallen markedly. The average annual number of working days lost in industrial disputes per 1,000 employees under the Hawke Government has been 60 per cent less than that recorded under the Fraser Government. At the same time, the average rate of wage increases has slowed from 12 per cent per annum to 7 per cent per annum, thus enabling a remarkable 6 per cent decline in real unit labour costs. Wages policy has also been flexible enough to adjust to the needs of an economy beset by drastic falls in its terms of trade and the consequent large devaluation of the Australian dollar.

Furthermore, these wage outcomes have been achieved without the need to severely depress the economy and with remarkably little increase in unemployment. On the basis of past experience, it is impossible to believe that, in the absence of the system prevailing in the last couple of years, we could have achieved the wage outcomes we in fact attained without a severe recession and a large rise in unemployment.

The success of that system owes much to the trade unions which, with rare exceptions, have adhered strictly to the wages policy adopted by the Conciliation and Arbitration Commission, even though it resulted in reduced real wages. Indeed, events over the past four years have demonstrated a distinct attitudinal change by the unions which has been a major factor in improved industrial relations outcomes.

The development and application of the prices and incomes accord was undoubtedly a major factor in that constructive attitudinal change, and has provided a co-operative framework for unions and Government which is without precedent in our industrial relations history. The Conciliation and Arbitration Commission can also take credit for these achievements. Whilst being much maligned by the right wing ideologues, it has worked responsibly and effectively at developing and implementing appropriate wages policy. The existence of the Commission, and the sensible application of its powers, has provided the means of implementing an appropriate wages policy that would not have been possible in its absence.

Important and substantial as these achievements have been, however, there is certainly further scope for improvement. A major means by which the Government is seeking such additional improvement is by encouraging a greater focus on shop floor or work place industrial relations. In particular, the Government has stressed the need for the parties to review restrictive work and management practices, and instituted action at a national and industry level to promote these developments. Such action is essential for enhancement of productivity which is especially important in our present economic circumstances.

A major feature of the new two-tier wages system is that it builds on these initiatives and provides direct incentive to employees to eliminate restrictive work practices and otherwise increase work place productivity as a means of achieving a second tier wage rise. The successful implementation of this wages system will therefore reinforce the Government's industrial relations strategy. Work place industrial relations can also be improved by the development of employee participation and industrial democracy. I recently tabled in the House a policy discussion paper on this subject which is designed to promote discussion on means of achieving greater participation in industry. Following a review of reaction to that paper, the Government will be announcing initiatives to stimulate development in this area. The Bill now before the House is not, therefore, to be seen in isolation. It is part of a comprehensive industrial relations strategy which has already demonstrated its effectiveness. The measures contained in this legislation will ensure that the effectiveness of that strategy is further enhanced.

Key Elements

I now turn to the Bill itself. Full details of the Bill are provided in the explanatory memorandum. Here I wish to refer to its most significant features. The legislation introduces vital changes to our industrial relations system in the crucial areas of the institutional framework, the jurisdiction of the tribunal, dispute prevention and settlement, compliance, and matters relating to the regulation of registered organisations. Effectively it addresses every aspect of our industrial relations and the Government's philosophies on a vast range of relevant industrial issues are comprehended within it. It reflects the Government's view that its industrial legislation must afford the industrial parties the capacity to regulate all elements of their industrial relationships through the processes of conciliation and arbitration. Since all industrial benefits stem from the industrial legislation, it is appropriate, in our view, that all industrial remedies and penalties should likewise be derived from it. Reliance on remedies which might be available outside the industrial legislation simply should not be necessary if the legislation adequately provides for ensuring adherence to its own rules.

Of paramount importance in any industrial relationship involving employers and their employees is the availability of appropriate machinery for the resolution of any industrial disputes which may arise in the course of their work. It is that ready access to an independent industrial tribunal to assist in the prevention and settlement of industrial disputes which characterises Australia's unique conciliation and arbitration system and is one of its greatest attributes.

Institutional Framework

The Bill provides for the establishment of the Australian Industrial Relations Commission. The Commission will replace the existing Australian Conciliation and Arbitration Commission. This new Commission will be capable of responding quickly, consistently and effectively to the needs of the parties, particularly in the prevention and settlement of industrial disputes. The Commission will possess the means to enforce its authority and secure compliance with its decisions. Whilst the Commission will be exclusively responsible for the conciliation and arbitration function involving federally registered organisations, a new Australian Labour Court will also be created to replace the present Industrial Division of the Federal Court and to exercise the necessary judicial powers.

The legislation will enable presidential members of the Industrial Relations Commission to hold separate and concurrent appointments to the Labour Court and the Commission. It is not proposed, however, to prevent the appointment of other suitably qualified persons as judges. The establishment of the two new bodies has been strongly supported by both union and employer organisations and accords with the recommendations of Sir John Moore, the former President of the Australian Conciliation and Arbitration Commission, to the Hancock inquiry.

These new institutional arrangements will permit the achievement of closer integration between the separate yet indisputably related arbitral and judicial processes of the industrial relations system and will enable a greater rationalisation of the exercise of the respective powers. The Bill requires persons who are to be appointed as judges to have skills and experience in the field of industrial relations. The appointment to the Labour Court of persons who possess an appreciation and awareness of industrial relations considerations recognises the unique requirements of the industrial relations system and will promote consistency and understanding in the application, interpretation and enforcement of the law with respect to industrial issues and particularly in the law regulating organisations. The existence of the specialist arbitral and judicial tribunals with closely related jurisdictions will ensure that their specific powers are exercised in a co-ordinated and complementary manner to the overall advantage of the system.

The Office of the Industrial Registrar is to be established as a statutory authority. This will enable it to provide effective support to both the Commission and the Court. However, the power to register organisations or to amend eligibility rules will now be vested in a Deputy President of the Commission. The Bill provides for a general rationalisation of existing specialist federal industrial tribunals and the special jurisdictions under the existing Conciliation and Arbitration Act, and incorporates them into the mainstream jurisdiction. The Academic Salaries Tribunal, the Flight Crew Officers Industrial Tribunal and the present arrangements concerning the Australian Federal Police will be abolished. There will no longer be a separate Division of the Act to cover Commonwealth and Territory employees. They will be dealt with within the general powers and functions of the Commission.

In relation to the Coal Industry Tribunal, the Government is introducing new compliance measures to enhance the Tribunal's authority and to achieve adherence to its decisions. These measures will be the equivalent of those which will apply in relation to the new Commission. However, the Government recognises that further changes to the Tribunal's operations may be necessary. Since the Tribunal's powers and functions are governed by both Federal and New South Wales State legislation, under an agreement between the two governments, all changes require the concurrence of the New South Wales Government. Whilst this Government has not been able, at this stage, to obtain the requisite concurrence of the New South Wales Government to additional amendments to the Tribunal's operations, it intends to pursue discussions with a view to achieving an agreed approach for future change.

The Hancock Committee recommended that the co-operation of the States should be sought towards the establishment-in the long term-of a national integrated system of industrial relations. Whilst the Government undertook extensive discussions with the States, disappointingly, they were not prepared to explore in depth the achievement of a national integrated system, embodying both the Federal and State industrial tribunals. The Bill nevertheless contains specific proposals which are designed to facilitate greater co-operation between the Federal and State industrial tribunals and to promote in the systems greater uniformity of treatment of the parties. Once the States have enacted complementary legislation, members of State and Federal tribunals will be able to hold, concurrently, dual commissions which will enable them to exercise both State and Federal powers. Further, meetings of the heads of tribunals will be placed on a statutory footing.


In accordance with the Hancock recommendation, the jurisdiction of the Industrial Relations Commission will be framed as broadly as possible within the limits of the conciliation and arbitration power, subject only to the requirement that disputes relate to matters concerning employers and employees. It is intended that disputes involving all such matters will be able to come before the Commission. By this means, the arbitrary constraint on Commission involvement brought about by the current definitions of `industrial dispute' and `industrial matter' in the Conciliation and Arbitration Act will be removed and the parties will not be limited in the range of matters which they bring to the Commission as agreements or disputes. This does not mean, however, that the Commission will be arbitrating or interfering in matters which may properly be regarded as coming within managerial prerogative. Certainly, in its own area of employment, the Commonwealth will vigorously assert its right to exercise appropriate managerial prerogative without Commission interference.

We recognise, however, that, in the event of a dispute over such matters, the Commission can play a helpful role through conciliation and that denial of jurisdiction would prevent such assistance being made available to the parties. The Court will be empowered to order reinstatement and/or compensation for breaches of the unfair dismissal provisions of Federal awards. This is a power that resides in the State tribunals for employees under State awards but has not hitherto been available in the Federal jurisdiction. The Court, however, will not be able to exercise its jurisdiction until the Commission has issued a certificate to the effect that it has been unable to resolve the disputed dismissal by conciliation. Again, the introduction of such procedures does not deny an employer the right to `hire and fire'; rather it ensures that an employee is afforded the protection of due process being followed in such matters. In relation to the question of whether the Commission's jurisdiction should be extended to cover quasi-employees, the Government does not believe that the Hancock Committee's recommendation 19 represents an adequate response to the complex issue of industrial relations involving independent contractors. Accordingly the Government has not taken up that recommendation in this Bill.

Certified Agreements

Whilst the emphasis in the legislation is on conciliation and arbitration, the Bill recognises that there must be sufficient flexibility in the industrial relations system to allow for agreement between the parties on terms and conditions of employment-bearing in mind that outcomes which suit the best interests of immediate protagonists may not be consistent with the public interest. The Hancock Committee's recommendation in this regard was to provide for so-called `opting-out' of the system. However, the Government views this recommendation as being totally contrary to the overall direction supported by the Hancock Committee elsewhere in its report. Such `opting-out' arrangements would undermine the proposed institutional framework of the new Industrial Relations Commission by allowing the parties to set up private conciliation and arbitration procedures without any recourse to the independent tribunal. This would encourage the growth of a `black market' conciliation and arbitration industry which would not be required to pay any attention to the public interest, and would be likely to lead to economically disastrous sweetheart deals for some, and sweatshop arrangements for others.

In order to allow flexibility, yet avoid the undesirable elements of `opting-out', the Bill provides for both the currently available consent awards and for fixed-term, non-variable, binding agreements which will be certified by the Commission. Such agreements differ from the current consent award provisions in that they will have a specified life, after which they will lapse, and will not be able to be varied during that period, except in special and compelling circumstances. The agreements will afford an employer guaranteed certainty in relation to the labour costs which will apply during the period of the agreement and will enable him to take appropriate management decisions in the knowledge of such predetermined stable costs. It will be open to the parties to insert in their agreement measures designed to deal with the enforcement of its terms. In the absence of such procedures, a party alleging a breach of the agreement will be able to seek enforcement in the Labour Court.

In addition, in the event that a party takes industrial action in relation to a matter embodied in the agreement, the other party will be permitted, upon the Commission's approval, to treat the agreement as terminated. Where all parties consent and the Commission declares that it is in the public interest, it will be possible for the agreement to be terminated. This could be necessary in special and compelling circumstances, for instance, where the employer has sustained a drastic decline in profitability through an unforeseen drop in the price of his product which could force him to lay off large numbers of his employees unless he is able to end the agreement. There is provision in the legislation for the Minister to intervene in the public interest to seek to have the Commission review the operation of a certified agreement if the Minister considers such a review is warranted. As all such agreements will require Commission certification before they take effect, the Commission will be able to ensure that they do not prejudice its wages system.

Public Interest

The inclusion of a review function further underlines the Commission's essential position as guardian of the public interest in all aspects of the industrial relations system. Indeed, the overall importance of this role is reinforced in the Bill by the expansion of the Government's power to intervene in matters before the Commission. Further, the objects of the Act will include specific reference to economic considerations and the Commission will be required to have regard to the economic consequences of its decisions in all proceedings, not just Full Bench matters.

Dispute Prevention and Settlement

Demarcation disputes can be particularly intractable and damaging to industry. Employees frequently have little influence on such disputes. The Bill recognises the responsibilities of the trade union movement in resolving demarcation disputes. It affords the Commission the discretion to allow the Australian Council of Trade Unions to attempt to settle a dispute before it exercises its own powers. Where the trade union movement cannot effect a timely resolution of the dispute the Commission will be able to address both the immediate and the long term issues relating to the demarcation of specific work. It will be able to make orders as to coverage and to change rules to give effect to its decisions, thereby ensuring lasting relief.

The inclusion of grievance procedures in all awards provides an important means of placing greater emphasis on improved industrial relations in the workplace. Whilst the Government does not have the ability, under the conciliation and arbitration power, to give effect to the Hancock recommendation that the Commission be required to insert such grievance procedures in all awards, the Bill does provide for the Commission to encourage the parties to include such processes in all their awards. Where such procedures do exist, it is imperative that they be followed. To this end, the Commission will be able to take into account the extent to which the procedure has been used by the parties in determining whether it proceeds to deal with a dispute. Model grievance procedures will be further developed through the National Labour Consultative Council to enable national union and employer organisations to encourage their members to adopt a uniform standard for inclusion in all awards.


Reforms in the overall industrial structure must keep pace with changes in the work place. The institutional initiatives which I have outlined are one element of this. An equally significant component is the revitalisation of the structure of trade unions. It is generally agreed that Australia has too many trade unions. The present organisational structure of trade unions reflects historical factors, which are less relevant to contemporary industry, and contributes to damaging demarcation disputes between unions.

Further, employers complain of being frustrated in their attempts to negotiate agreements when confronted by a multiplicity of unions, in their industries and even individual enterprises, which are making quite disparate claims. It also causes problems for smaller unions which cannot effectively represent the interests of their members due to their limited resources. The Conciliation and Arbitration Amendment Act 1983 incorporated provisions which facilitated amalgamations between unions and introduced the `community of interest' criterion for amalgamations. This Bill builds upon those initiatives.

Amalgamations will be made easier. Where the unions satisfy the community of interest test, a simple majority of votes cast in favour will approve the amalgamation. Where no community of interest criterion applies, at least a quarter of eligible members of the organisations will be required to vote with a simple majority of these votes being necessary to approve the amalgamation. Special transitional arrangements will be provided for existing office holders in the amalgamating organisations.

Registration requirements will be more stringent. Unions will be required, except in special circumstances, to have at least 1,000 members before they can be registered. At present, the threshold is 100 members. Furthermore, the continued registration of a union with less than the minimum number will be reviewed by a designated presidential member with a view to deciding if its registration should be cancelled. The future registration of unions will be restricted to associations which are industry-based, except in special circumstances, thus precluding the future registration of craft or occupationally-based associations.

It must, nevertheless, be recognised that a government can never successfully impose organisational change from above if there is outright rejection or resistance at the grass roots level. The previous Government tried to legislate for industry unions and failed. Such prescriptive legislative endeavours are bound to be counter-productive.

Reform must be an on-going process, consistent with the changing patterns of Australian industry and in accord with community attitudes and aspirations. The Government's view is that reform of the structure of trade unions can be positively encouraged with the appropriate legislative framework. The proposals which I have just outlined are directed towards that end. Registered trade unions are required to observe a wide range of provisions regulating their affairs. They must meet proper standards of internal administration and satisfy requirements for democratic control.

The legislation contains many initiatives which will enhance the accountability and efficient operations of trade unions. These include the entitlement of the registrar to require an organisation to provide membership records when requested by a member, the right of a member to a membership statement, and the requirement that all elections by a direct voting system for offices, other than administrative positions, be by secret postal ballot and be officially conducted except where an exemption is granted by the registrar.

Members' rights to participate actively in the affairs of their organisation are protected. They are entitled to challenge rules, to seek their enforcement, to initiate election inquiries and to seek a secret ballot on strike action. Individuals are also protected from discriminatory action based on their membership of organisations or their non-participation in industrial action.

The Bill also prescribes action by an organisation, its officers, members or representatives which are likely to prejudice the employment of a member of the organisation. It extends the provisions for individuals to apply for a certificate of conscientious objection exempting them from belonging to an organisation of either employees or employers. Further, the legislation continues the existing prohibition on discriminatory action against independent contractors.


An essential element of any industrial relations system which provides benefits and protections to registered organisations and their members is that there should be effective means of ensuring adherence to the principles on which the system is founded and compliance with the decisions of its institutions. The means of ensuring compliance should not be the focal point of the system; they should be available only after the processes of conciliation and arbitration have been exhausted. The Hancock report recommended that the Federal industrial relations system should not provide for monetary penalties, fines or imprisonment as sanctions for industrial action. However, the Government considers that non-monetary penalties alone are not necessarily sufficient to deal with the relatively few cases where there is a refusal to conform with conciliation and arbitration processes. Instead, the Government believes that there must be a wide range of consequences, including monetary penalties, which are capable of being applied as circumstances demand and which constitute an integrated and comprehensive scheme

Accordingly, there are effective measures designed to achieve compliance contained within this legislation. In the absence of such effective measures, it is inevitable that there would be greater resort to remedies available in other jurisdictions in order to gain adherence to Commission decisions. (Extension of time granted) In this Government's view, that would be a most undesirable development. It is clearly preferable that all remedies for industrial misconduct be prescribed within the industrial legislation and that reliance be placed upon such measures in order to obtain compliance.

The Government believes that the tribunals established by this Bill should have complete authority to ensure adherence by the parties within the Federal industrial relations system to the standards applying under that system. It is considered that the availability of other forms of legal remedies from State courts or under State laws could well be damaging to the Federal Commission's charter to prevent and settle industrial disputes and could interfere with its ability to perform this function, to the ultimate detriment of the parties. Thus, the Government recognises the need to introduce meaningful measures-within the overall context of industrial regulation-to ensure that industrial misbehaviour, which refuses to adhere to the rules of our industrial relations system, can be dealt with swiftly and effectively. It is, however, totally opposed to any extremist approaches such as that adopted by the Queensland Government, which has chosen to address the issue of compliance by introducing the most draconian, undemocratic legislation, the ultimate effect of which, if fully applied, would be to outlaw virtually all legitimate industrial activity by Queensland unions and their members.

The measures which the Government proposes to introduce will draw upon the benefits of the new institutional arrangements to provide effective, graduated and equitable means of ensuring compliance. The principal initiative is that the present bans clause provisions, which have long since fallen into disrepute and are now substantially moribund, will be replaced by a new direction and injunction process. This will mean that each member of the Commission will be empowered to issue a direction prohibiting the instigation or continuation of industrial action in a primary dispute or conduct obstructing the observance of, or work under, a Federal award.

Where, in the face of such a direction, industrial action occurs or continues and a Full Bench considers that the avenues available to the Commission for the prompt resolution of the dispute have been exhausted, then the Full Bench is required to issue a certificate. Once a certificate has been issued the matter can be taken to the Labour Court. The Court will be able to issue an injunction enforcing the Commission's direction and to impose penalties where its injunction is flouted. The range of penalties available to the Court includes fines, alterations to an organisation's eligibility rules to exclude specified groups from membership, and the imposition of conditions as to future industrial conduct. A serious continuing breach of a direction by an organisation or its members can lead to deregistration.

This system of directions and injunctions for the stopping of industrial action by employers or unions in relation to industrial disputes will be exclusive of other remedies under State or Territory legislation, such as the recently introduced Queensland anti-strike laws, or in tort in relation to such conduct. However, certain actions will not be excluded, such as action for compensatory damages and action relating to harm to persons or property, or prosecution for criminal offences.

The elimination of access to common law injunctions relating to industrial action should not be seen as limiting employer responses towards unions engaged in industrial disputes. Experience demonstrates that employers have shown an overwhelming reluctance to resort to such extreme measures. This is hardly surprising, given that punitive common law sanctions delay the achievement of a final settlement, are costly and are inappropriate to resolving industrial disputes and preserving long term harmonious relations.

Moreover, where an injunction is necessary, the Labour Court will be able to grant equivalent injunctory relief, which will be accompanied by meaningful penalties for non-adherence. There is simply no need for employers to be able to pursue injunctive relief in two different courts for the one action. Nor, indeed, is it at all appropriate that unions or their members should be subject to such double jeopardy for the one action.

In relation to secondary boycott disputes, jurisdiction to deal with contraventions by trade unions of sections 45d and 45e of the Trade Practices Act 1974 will be vested in the Labour Court but there will be no changes made to the remedies available under that Act. However, it will now be necessary for persons wishing to take actions for contraventions of sections 45d and 45e under the Trade Practices Act involving trade unions to refer the dispute initially to the Commission in an effort to achieve a settlement before access to the Labour Court is available. Once the Commission has satisfied itself that it cannot bring about a speedy resolution of the dispute or the cessation of the boycott, then a person will be entitled to proceed with Trade Practices Act actions for injunctions or damages without impediment.

The remedies contained within the Trade Practices Act for contraventions of sections 45d and 45e are also to be exclusive of remedies under State or Territory laws or in tort, other than for an offence under the ordinary criminal law, or proceedings for a contravention of an award, order or direction of a State industrial tribunal.

It is the intention of this legislation to ensure that, where other remedies are available under any State or Territory legislation or in tort that are inconsistent with the relevant Federal remedies, the Federal remedies are to be paramount. Thus, the provocative and confrontationist Queensland legislation, which makes no useful contribution to bringing about the end of industrial conduct that is harming other persons, will be overridden.

The operation of the Federal legislation can be effectively illustrated by referring to the examples of the recent Queensland industrial legislation. Relying upon the paramountcy given by section 109 of the Constitution to Federal laws, the Queensland Industrial (Commercial Practices) Act will have no application for federally registered unions or their members where their conduct comes within the scope of the Trade Practices Act. In the case of Queensland State registered unions, proceedings in relation to secondary boycotts, primary boycotts affecting interstate or overseas trade and commerce and agreements having the effect of boycotts will not be actionable under the Queensland Act.

Whilst the State registered unions will not be covered by the compulsory pre-litigation conciliation before the Industrial Relations Commission which will be a requirement where Federal unions are involved, actions against State unions under the Trade Practices Act will be dealt with by the Labour Court and the Queensland Minister will not be able to seek the imposition of penalties of up to $250,000 as provided for in the Industrial (Commercial Practices) Act. Thus, the unions will continue to be subject to the penalties under the Trade Practices Act but will not experience the double jeopardy which the Queensland Government is intent upon trying to inflict.

It is the Government's view that early Commission involvement in disputes will ensure that every endeavour is made to settle the matters as quickly as possible, without those efforts being undermined by potentially inflammatory proceedings being instituted simultaneously outside the industrial relations system. Further, it will afford a party the opportunity to seek the relief provided within the Industrial Relations Bill before having to consider the need for recourse to Trade Practices Act remedies. Indeed, the Labour Court will be required to have regard to what action has been, or could be, taken by an employer under the Industrial Relations Act in relation to a boycott dispute before exercising its powers under the Trade Practices Act.

In the area of secondary boycotts the role proposed for the Commission will not obstruct ready access to the Court to the detriment of the employer. If the Commission considers that it cannot promptly settle the dispute or bring about the cessation of the boycott it will immediately issue a certificate. Where the consequences of any delay would be so serious that it would cause substantial injustice to defer granting a certificate to enable the Commission to ascertain whether a prompt settlement was likely, it will be able to issue a certificate immediately. Once a certificate has been issued, the Court will be able to grant an interlocutory injunction.

It should be recognised that presently employers do not rush off to the Federal Court with undue haste to obtain injunctions. Instead experience demonstrates that employers almost invariably prefer to try to resolve the dispute before instigating Trade Practices Act procee-dings. Thus, the pre-litigation conciliation now being proposed merely formalises this reality. In the case of a dispute of a political nature or where the boycott dispute is over a matter outside the Commission's jurisdiction, the Commission will issue a certificate immediately but will, nevertheless, be able to conciliate, if required. Contraventions of sections 45d and 45e which do not involve trade unions, or their members, will continue to be dealt with by the Federal Court. In addition to the range of penalties which the Labour Court will be empowered to impose, there will be a provision which enables the Commission to refuse to deal with a dispute where a party to that dispute is hindering the settlement of any other dispute. Most of the other workable sanctions within the present Act will also be retained. All monetary penalties available under the new Act have been set at levels which are appropriate to the nature of the breach involved.


In conclusion, the Industrial Relations Bill will enable considerable improvements to be achieved in our industrial relations system. Its passage, and the associated repeal of the Conciliation and Arbitration Act, which has been on the statute book for 83 years, will represent a clear res-ponse by this Parliament to the widespread view in the community that our industrial relations system is in need of reform. This legislation responsibly fulfils that requirement by building on the proven foundation of conciliation and arbitration. In so doing, it revises its institutions, improves its processes, rectifies some blatant deficiencies, and ensures its contemporary relevance. I am confident that the approach the Government has taken will have widespread community support. Whilst neither employer organisations nor unions will be pleased with all aspects of the legislation, I believe that, when viewed as a total package, they should accept it as fair and balanced. I commend the Bill to the House. I present the explanatory memorandum to this Bill.

Debate (on motion by Mr Carlton) adjourned.