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Tuesday, 30 May 1972
Page: 2280


The TEMPORARY CHAIRMAN - Senator Georges,if you interrupt me when I am speaking I will name you.


Senator Poyser - The Minister intends to gag the debate.


The TEMPORARY CHAIRMAN - I will name anybody who interrupts me when I am speaking from the chair. The Opposition has been heard in silence for 45 minutes. The Minister is entitled to be heard in silence also for his 10 or 15 minutes.


Senator Georges - Mr Temporary Chairman, could I make a point on what you have said?


The TEMPORARY CHAIRMAN - Are you raising a point of order?


Senator Georges - I am not raising a point of order.


The TEMPORARY CHAIRMAN - If you are not raising a point of order, Senator Greenwood has the floor.


Senator Georges - Mr Temporary Chairman


The TEMPORARY CHAIRMAN - Are you raising a point of order?


Senator Georges - Yes.


The TEMPORARY CHAIRMAN - What is your point of order?


Senator Georges - The point of order is that we are prepared, under the Standing Orders which normally apply, to listen to your appeal, but it is obvious that the Minister will again move the gag.


The TEMPORARY CHAIRMAN - What is your point of order? Will you name the standing order under which you are taking a point of order?


Senator Georges - In effect it is an objection to a procedure which is taking place at this time and which is taking place continually in this place.

The TEMPORARY CHAIRMANThere is no substance in the point of order.


Senator Georges - Perhaps there is not but-


The TEMPORARY CHAIRMAN - Senator Georges,would you please resume your seat.


Senator GREENWOOD - I suggest that what I have to say is by way of justification of a Bill which was fairly thoroughly debated in this chamber in 1970 and to explain how the new provisions fit into that context. Proposed section 32 continues the approach which was adopted by the Act of 1970 - in short, that the seeking of a bans clause in an award is such an important step and places such firm obligations upon organisations that it should be imposed only by a presidential member. It is only when there is a bans clause, a prohibition upon certain activities in the form of industrial action, that there is any problem involved in unions striking or engaging in limitations of work. The Government believes that it must be firm but restrained in the approach which it adopts to these matters. It is firmly wedded to the principles of sanctions, but it recognises that every reasonable opportunity should be given for the processes of conciliation and arbitration to operate.

When an application for a bans clause comes before a presidential member of the Conciliation and Arbitration Commission - someone must apply for a bans clause in the first place - the parties are given every opportunity to resolve their difference and to avoid having a bans clause inserted. They will avoid having a bans clause inserted in their award if they are prepared to act with good will and in the best interests of their members. I am informed by my advisers that, of approximately 500 Federal awards, about 25 have bans clauses in them. That indicates that the vast number of awards which are made in this country do not require and do not have inserted in them clauses which say that the unions will not engage in any limitation or restriction of work. Therefore that indicates that it is only in a limited area in which there is a problem of deciding whether a bans clause should be inserted. The bans clause provision is the first step in the sanctions process. It gives the opportunities to which I have referred to have the matter resolved with good will and in the interests of everybody con cerned. If an organisation acts sensibly it does not need to be taken any further along a line which, if it acts insensibly, would ultimately lead to the penalties under section 119.

That is the broad pattern which existed in the 1970 amendments. The Opposition opposed them, just as it is opposing what is involved now. They have been of some value. I am assured that as at 2nd May, as a result of the provisions which were introduced in 1970, there had been 73 applications for a certificate where there had been a bans clause. In only 7 out of the 73 applications had a certificate been issued. In 40 cases the matters were settled by agreement. They were stood over, withdrawn, not proceeded with or simply lapsed. There were 16 cases in which the presidential member made a decision on the dispute and there were 10 cases proceeding or adjourned sine die with liberty to re-apply. The existing provisions have not resulted in the dreadful consequences which we all remember were prophesied all night at a certain period when we debated them; nor will the provisions which are now being proposed have any of the dire consequences which have been prophesied.

Proposed new section 33 provides that if the attitude of the offending organisation is such that the Commission has no alternative but to insert a bans clause the steps towards the final phase of the imposition of a penalty will quicken, but they will not quicken so that punishment is inevitable. There will be interposed before the stage where a penalty is imposed the processes of proposed new section 33. It also maintains the concept of the 1970 amendments. Every opportunity will be given to an organisation when it appears before the presidential member who has the decision as to whether to issue a certificate to use the processes of conciliation and arbitration. Of course, only a presidential member can deal with applications under proposed new section 33. He will have, in addition to the power of granting a certificate, a power of conciliation and a power of arbitration. That, of course, is something which was not in the legislation before. I do not know whether it is to be regarded as criticism that the presidential member has been given the powers.

One change which is involved is that, whilst the presidential member is to be given discretion as to bow he goes about dealing with applications under proposed new section 33, he will be obliged to issue a certificate and so open up proceedings in the Industrial Court where conduct in the form of strikes or bans is taking place, notwithstanding his best efforts to bring about a cessation of that conduct. Under the pre-existing provision a matter could go before a presidential member on an application for a certificate and, whilst the presidential member was using his best endeavours to resolve the dispute, the parties to the dispute or one of the parties to the dispute was engaged in direct action in contravention of the ban. It seems to me to be an anomalous situation - to the Government it was a situation that required remedying - that the presidential member should be faced with a continuation of the trouble he was trying to avoid and be unable to resolve it. He will now be in the position of being able to issue a certificate if he believes that to continue further with the discussion is not likely to produce any result.

In summary, the proposed new section 33 provides: Firstly, that there can be no penalty action for a breach of a bans clause unless the alleged breach is notified under proposed new section 33 and a certificate is issued by a presidential member. Secondly, when a notification is received, the presidential member is to inquire into the matters alleged in the notice. He has to attempt to stop the conduct occurring, if it has commenced or if it is threatened, and he has to issue a certificate as to such conduct unless he is satisfied that a prompt settlement will be effected or that the conduct is about to cease. Thirdly, where conduct has ceased but a certificate is asked for, a presidential member is to inquire into all the matters involved, but he shall not issue a certificate if he thinks that to do so would be undesirable having regard to the circumstances in which it ceased or the terms of settlement arrived at.

I must emphasise that the Government will be quite firm on the sanctions after the stage has been reached where a certificate has been issued and penalties have been imposed. As the Prime Minister (Mr McMahon) has said, and as I am authorised to say, if fines are imposed they will be collected. We heard from Senator James McClelland some comment about the Government being unwilling to collect fines. Since the provisions in this respect came into operation-


Senator James McClelland (NEW SOUTH WALES) - What about the earlier ones?


Senator GREENWOOD - As the truth hurts the Opposition may want to drown it out and it can be drowned out if all Opposition senators sing out in unison. But let us hear the truth about this matter. Since the new provisions were introduced in 1970 all the fines which have been imposed have been collected.


Senator James McClelland (NEW SOUTH WALES) - What about before then?


Senator GREENWOOD - Of course, there have been some bold, brave unions which have said: 'We will never pay these fines'. But what have we found? We have found that they have been paid anonymously. It is a curious concept that if one wants to- (Opposition senators interjecting)-


The TEMPORARY CHAIRMAN (Senator Withers - Order! I said before that the Minister will be heard in silence. I will name the next Opposition or Government supporter who interjects while the Minister is on his feet.


Senator Cavanagh - Do not talk ballyhoo.


The TEMPORARY CHAIRMAN - I name Senator Cavanagh for cheeking the Chair.


Senator Poyser - What utter nonsense.


The TEMPORARY CHAIRMAN - I name Senator Poyser also. I interrupt the proceedings of the Committee in order to report to the President that an offence has been committed by Senator Cavanagh and Senator Poyser.

In the Senate







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