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Tuesday, 8 May 1973
Page: 1826


Mr McMAHON (Lowe) - In this case we are dealing with a new, and as I said this morning, alien provision in the Conciliation and Arbitration Act. It is new in the sense that never before have we had a similar type of provision incorporated in any Act of the Commonwealth. Certainly we have not had anything approaching it incorporated in the Conciliation and Arbitration Act itself. I believe, as I said this morning, that this clause has to be read alongside section 138 of the Act which at present prohibits a boycott or action being taken by a member or officer of a union which is designed to prevent a person complying with the award or with his contract of employment. This provision prevents him from inciting people to go slow or inciting people not to work in accordance with the contract which they have made with their employer. The Government seeks to remove this provision. In other words, this clause, if it becomes law, will permit a shop steward or official of a union to incite people to break awards. This clause will permit people to incite other people to act in a way which is contrary to the contract of employment that they have and to the award which covers the whole of the industry

If we take it a little further we find that the proposed new sub-section (f) of section 5 of the principal Act relates not as section 138 relates to an official but applies to any employee. We find that it applies to any action which he might take either on the shop floor, within the industry or anywhere else, as is clearly set out, provided only that the employee believes that it is for the purpose of protecting the industrial interests of the union. So here we have a situation in which an employee can turn round and, no matter what he might have agreed to and no matter what the award might say, decide to take action to pull men out on strike. He can say: 'I can take action to ensure they go slow. I can take action to ensure that anything that I believe is in the interests of the union or its industrial interests I can in fact do'. This, as I have said, is totally alien. No case has been made out why we need a clause of this kind in the Bill which will subsequently be incorporated as a section of the Act. No justification has been given whatsoever.

It is true that the honourable member for Melbourne (Mr Innes) attempted to give 2 hypothetical illustrations and the example of the Latrobe Valley. Fortunately he was corrected by the honourable member for Burke (Mr Keith Johnson) who sits beside him. The honourable member for Burke pointed out that the problems of the Latrobe Valley were ones about which the Commonwealth did not have jurisdiction, and that this jurisdiction was exercised by the Victorian Government. So he was blown out on this score. He referred to 2 hypothetical problems which need not arise and have not arisen and which, quite frankly, cannot be judged as cases which would in fact justify the incorporation of a clause of this kind in the Bill.

One other part of the Bill, already referred to by my colleague the honourable member for Moreton (Mr Killen), is the so-called protective provision. It provides that if, through sound managerial practice and in the interests of the corporation in which the employee works, the employee is dismissed because he has done something which is contrary to the best inter ests of the company, in the case of a prosecution the onus of proof shall be shifted from the employee who was sacked and who would have had the obligation of proving that the employer had no right to dismiss him. Thus the onus of proof provision is completely changed.

We have heard in this chamber tonight of occasions when the late Dr Evatt - previously held in high esteem by the Australian Labor Party - has said that certain action should not be taken. We know also that the very same Dr Evatt won a referendum that went to the Australian people on the onus of proof clause. The people of Australia decided that when onus of proof was involved it should not be shifted but should reside where true onus of proof should reside and that the dismissed person should have the obligation to prove that he was unjustifiably dismissed or unjustifiably affected in his employment.

In this Bill is a clause which shows a preference for a particular type of official or person in a union. My colleague, the Deputy Leader of the Opposition (Mr Lynch), has pointed out the growing might of the shop steward. He has pointed to the analogy that exists between Australia and the United Kingdom. Not ons honourable member tonight could deny that the people in the United Kingdom have been virtually driven to their knees by inflation and large scale unemployment, to a large extent as a result of the unco-ordinated activities of shop stewards and the anarchy that they have introduced into British industry, making it impossible to fulfil orders. As a consequence they have been competed out of international markets and slowly and steadily we found, until the Heath Government came to power, the United Kingdom balance of payments changing too rapidly and Britain losing its competitive influence in world affairs.

Do we want that same kind of anarchical condition to be introduced to Australia or do we want to stand on the law as it exists at me moment and ask that these people observe section 138 of the Act and not be put in a privileged position with power to do whatever they feel is right and which they think is in the interests of the organisations they represent? I wonder what could be worse than giving individuals like these the great power that is vested in them. Here is another example of the Acton dictum that absolute power inevitably corrupts. Undoubtedly it would inevitably corrupt in a place where a man is given the privileged and protected position that members, and particularly shop stewards, are given in these particular circumstances.

The Opposition regards this matter seriously, being alien as it is and obviously designed to impair the authority of the arbitration commission and the position of management in any industrial concern or industrial business. As we believe it is likely to destroy arbitration as such and lead to the necessity for other kinds of industrial arrangements to be made, the Opposition of necessity will, unless the Minister for Labour is prepared to agree, have to divide on this clause. I warn the Minister for Labour that it is contrary to the Labor Party's interests and to the interests of this country. I hope that in a case like this the Minister will have the common sense not to be guided by some hypothetical sets of considerations and at least will sit down and think hard about it. Is this in the interests of the nation? As a sensible and realistic man the Minister for Labour will come to the conclusion that it is not - that is, if he is a sensible and realistic man. If he does not come to that conclusion, the Opposition will have to put up with this legislation and hope for the early defeat of the Labor Government.







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