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Tuesday, 30 May 1972
Page: 2274


Senator BISHOP (South Australia) - Proposed sections 32, 33, 34 and 35 enact provisions for the Conciliation and Arbitration Commission to include in an award a bans clause or procedures for settling disputes. They take away from the commissioner the existing discretion to insert or remove a bans clause. That ability presently lies within his discretion under the Act. The commissioner is primarily responsible for the industry concerned. He has an intimate knowledge of the industry and knows and understands the parties involved. It is a backward step to do other than allow that present discretion to operate. In future it shall be mandatory for a presidential member to issue a certificate for prosecution. Proposed section 33 (7.) reads:

Where -

(a)   proceedings in relation to any conduct have been commenced before a Presidential Member in accordance with sub-section (3.) of this section; and

(b)   the conduct is still continuing notwithstanding that the Presidential Member has taken all steps that appear to him to be appropriate for bringing about its early cessation, the Presidential Member shall not refuse an application for a certificate under sub-section (5.) of this section in relation to the conduct unless he is satisfied that a prompt settlement of the matters giving rise to the conduct will be effected or that the conduct is otherwise about to cease.

So there are these mandatory provisions under which he has to act. In fact the presidential member almost has to issue the prosecution certificate on application. Once that certificate is issued there is only one step to the imposition of fines under section 119 of the Act. The proposed new section reduces the capacity of the presidential member to be anything like a conciliatory member, or even appear to be so.

The provision relating to conduct in contravention. proposed new section 33 (6.), is weighted against the organisations, if anything, because the presidential member has increased power to refuse a certificate. It is a fundamental section of the sanction provision and the trade union movement is opposed to it. We know what the bans clauses do. We have been told on many occasions how sections of the Conciliation and Arbitration Act can be used to punish the unions heavily by imposing a fine of Si, 000, and $500 a day for every repetition of an offence.

We have been told, too, of the very light fines which were imposed for breaches by employers. Breaches by employers become almost ridiculous if one considers the great impost of fines on the trade union movement. It was estimated in recent years by Mr Woodward, Q.C., as he was then, that up to 1968 $100,000 had been inflicted in fines on unions because of offences under the Act. The Minister for Labour and National Service (Mr Lynch), in the statement he made in December 1971 when he indicated the intention of the Government to amend the Conciliation and Arbitration Act, said that several unions had not paid fines totalling $37,950. These fines were legally imposed and he said that he expected the unions to pay them. They have been paid. However, since 1970, when sections of the Act were relaxed, fines totalling $10,200 have been imposed on the Unions.

If honourable senators follow the questions asked of the Minister in the other place they will find that since that time penalties for breaches of awards by employers have been light indeed. For example I point out that on 24th February this year Mr Clyde Cameron asked the Minister for Labour and National Service in the other place the following question:

(1)   What is the maximum penalty that the Commonwealth Industrial Court can impose upon an employer who fails to comply with the terms of an award and on how many occasions has this Court imposed the maximum penalty provided for under the Conciliation and Arbitration Act for breach of an award by an employer?

The answer was as follows:

(1)   The maximum penalty that the Commonwealth Industrial Court can impose for a breach or non-obscrvan.ee of an award is fixed by section 119 of the Conciliation and Arbitration Act. That section provides that if the breach of the award is a separate breach by virtue of a provision of the award to the effect that engaging in conduct in broach of a specified term of the award shall be deemed to constitute the commission of a separate breach of that term on each day on which the conduct continues the maximum penalty is $500 and where the breach is not of that nature, $1,000.

(2)   A total of 97,680 breaches of federal awards have been detected by Commonwealth Arbitration Inspectors and State Inspectors exercising the powers of Commonwealth Inspectors between 1st January 1957, and 30th June 1971.

(3)   and (4) As to prosecutions instituted by Arbitration Inspectors since the commencement of 1957, I would invite the honourable member's attention to the answer given to his question No. 1026 (Hansard, 25th February 1969, pages 73-80), for the period ending 1968. Since that time, Inspectors have launched three proceedings in the Commonwealth Industrial Court and 92 proceedings before other Courts. Thus for the inclusive period, Inspectors instituted 248 proceedings against employers for breaches of federal awards. The Registrar instituted no prosecutions for breaches of awards in this period. Details of prosecutions before the Commonwealth Industrial Court instituted by Commonwealth Arbitration Inspectors since 1968 are as follows:

There were two. The first was on 10th August 1970. The award was the Transport Workers (General) Award and the name of the employer was Fast Freight Ltd, of Footscray, Victoria. The case involved 2 underpayments and the penalty was as follows:

Withdrawn on payment and undertaking to comply; $200 costs.

The second prosecution was on 15th September 1971. It was brought under the Metal Trades Award and the employer was GEC Ltd, of Brisbane, Queensland. The prosecution was for failure to observe the award provision regarding tools for apprentices. There was a fine of $50 plus $30 in costs.

That broadly is the position. There is no doubt that the total of fines imposed on the union movement since the date of the figures f read has increased probably to $150,000 or $200,000. Therefore we of the Opposition say that these are very bad provisions. We intend to divide on them and will vote against them. Referring to appeals, the provisions relating to appeals have been made easier by this Government's legislation. There will be greater delays and more frustration and in fact the provisions are directed away from the advantages of conciliation. The provisions of proposed new section 35 relating to appeals permits a party to a superseded award to appeal against a new award. This will lead to great complications. We have no hesitation in saying that these are bad provisions and that they should be opposed. We will divide on them.







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