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Thursday, 20 October 1983
Page: 2049


Mr WILLIS (Minister for Employment and Industrial Relations and Minister Assisting the Prime Minister for Public Service Industrial Matters)(6. 04) —I move:

That the Bill be now read a second time.

The purpose of this Bill is to repeal the 'no work as directed, no pay provisions' in the Public Service Act and certain statutory authority legislation. These provisions were introduced by the former Government in 1980 in respect of the Public Service and six Commonwealth authorities: The Australian Broadcasting Commission, the Australian Postal Commission, the Australian Telecommunications Commission, the Commonwealth Banking Corporation, the Commonwealth Teaching Service and the Overseas Telecommunications Commission .

Introduction of these provisions followed a period of industrial disputation over pay and conditions and a decision by the New South Wales Supreme Court in what became known as Bennett's case, which overturned the accepted view that under common law provisions, Commonwealth employing authorities were able to withhold pay from staff refusing to carry out the full range of their duties. The Supreme Court held that the common law rights of employers to implement the no work as directed no pay principle had no operation in the Commonwealth employment area because the Public Service Act and Regulations established a detailed and exclusive code of employment between the Commonwealth Government and its employees.

The Public Service and Statutory Authorities Amendment Act 1980 empowered the Public Service Board and specified authorities to declare that staff who fail to comply with an authorised direction relating to the performance of their duties are not to be paid salary. Such declaration remains in force until the Board or authority is satisfied that the employee has complied with its directions. No appeal mechanism was provided in the legislation against management decisions and the Act specifically prohibited the making of awards or determinations by the Conciliation and Arbitration Commission or the Public Service Arbitrator which were inconsistent with the provisions of the legislation.

The justification for such legislation was to give the Commonwealth rights which, according to the then Minister, applied generally to employers in the private sector. In reality, however, the legislation placed Commonwealth employers in a different position to private sector employers. The common law rights of private employers to exercise no work as directed no pay powers are not clear cut, particularly where employment is covered by an award of an industrial tribunal. For example, in 1980-the same year as the decision in Bennett's case-the Full Bench of the Federal Court held in what became known as Gapes case that this power was not available to a major banking company as it was not consistent with the award concerned.

It is therefore clear that in the private sector, the ability of employers to apply the no work as directed no pay principle is constrained by the terms of applicable awards. In essence, then, this legislation created a situation where the then Government provided itself with sanctions against its own employees which were not necessarily available to all sections of the private sector and in addition it put itself in the position where its powers could not be overridden by a decision of an industrial tribunal.

This legislation was only one of a number of instances in which the former Government singled out its own employees for overly harsh treatment in the industrial arena. Prior to the 1980 legislation the Government had passed the Commonwealth Employees (Employment Provisions) Act, allowing for the stand down, suspension or dismissal of Commonwealth employees engaged in industrial action. In 1979 the Government attempted to sanction unions involved in disputes by withdrawing facilities for the payroll deduction of union dues. The former Government also prohibited recourse to arbitration in respect of management decisions under the Commonwealth Employees (Redeployment and Retirement) Act. This Government rejects such a confrontationist approach towards its own employees. The existence of legislation of this kind has acted against the development of improved industrial relations in the Commonwealth sector. Rather than encouraging a sound working relationship, such punitive legislation and action has actually led to a marked deterioration in employer-employee relations .

The statement of accord between the Australian Labor Party and the Australian Council of Trade Unions commits the Government to a number of measures to meet its objective of improved industrial relations. In particular, the ALP undertook in the accord to adopt, and encourage other employers to adopt, a less confrontationist approach to industrial relations. Among other things this involved the encouragement of dispute settlement through conciliation without recourse to legislative or common law sanctions. More specifically, the ALP undertook to take steps to bring about a better industrial relations environment in the public sector. This Bill is a substantial step in that direction. In conjunction with the other Bills which I am introducing, the Government is now moving to repeal the confrontationist legislation enacted by the previous Government and to create a more rational industrial relations atmosphere in the public sector.

Abolition of the legislative no work as directed no pay provisions is consistent with the Government's objective that Australian government employees should be treated in a manner consistent with employees in the private sector. It should be clear that these amendments do not mean that the Government does not have access to no work as directed no pay if such action is necessary where unions institute bans and limitations. We propose to remove the right of management to impose such action unilaterally. It is appropriate that Commonwealth employers who desire to take staff off pay in dispute situations should have to seek authority to take such action within the context of an award or determination of the appropriate arbitral authority. This provides an opportunity for the views of all parties to be considered and is a far more acceptable process than the unilateral exercise by management of no work as directed no pay provisions. It is highly desirable that exercise of such a power in an industrial dispute be sanctioned by an independent arbitral tribunal which has considered the full facts of the case.

I propose to indicate to the ACTU, and public sector unions, that this action is being taken by the Government in the interests of developing more harmonious relations in the Commonwealth employment sector. Consequently the Government would expect Commonwealth employees and their unions to reciprocate by seeking to resolve their claims or grievances through the established machinery, including access to the arbitral authorities. I commend the Bill to the House.

Debate (on motion by Mr Ruddock) adjourned.