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Tuesday, 24 September 1974
Page: 1315

Senator GREENWOOD (Victoria) - This Conciliation and Arbitration Bill is designed to alter the provisions under which industrial organisations registered under the Conciliation and Arbitration Act may amalgamate. In short, it is a Bill which deals with union amalgamation. It is a Bill which deals with employer amalgamations. It is a Bill which the Opposition will oppose consistently with the attitude that it has adopted in the past with Bills which deal with amalgamations which do not give reasonable rights to the membership of those organisations to express their views on what should happen. As I say, such Bills will be opposed by the Opposition.

Mr President,may I put into perspective some of the matters which are raised by this Bill. Organisations registered under the Conciliation and Arbitration Act are voluntary organisations. Any voluntary organisation is entitled to amalgamate with another voluntary organisation. It is a matter of voluntary activity outside the scope of the conciliation and arbitration provisions and, indeed, outside the scope of the Companies Act. The amalgamation of organisations has caused great difficulty. At common law there are enormous problems involved, not so much for the organisation which is taking over the membership and the assets of an existing organisation as for the body which is being taken over. At common law you virtually need the concurrence of every member of the organisations concerned and the organisation being taken over, in effect, has to dissolve itself. Therefore, it is desirable in the interests of everybody that there should be some legislative provision dealing with the amalgamation of organisations.

The Conciliation and Arbitration Act and the regulations made under that Act have long contained provisions under which organisations could amalgamate. But up until 1972, these provisions created problems because of the abuses they gave rise to and because there was an overriding of the rights of the membership. I think that we can all recall the circumstances in which the Amalgamated Metal Workers Union was formed out of the pre-existing Amalgamated Engineering Union, the Boilermakers and Blacksmiths Society of Australia and the Sheet Metal Working, Agricultural Implement and Stovemaking Industrial Union of Australia. The way in which the members of those organisations purported to give their approval to that amalgamation is, I think, a reflection on the democratic processes. I say this because a minority of the membership, in circumstances which I think were highly questionable, expressed a viewpoint. It was only a small majority of a minority of the membership which ultimately created this mammoth Amalgamated Metal Workers Union.

I think that the amendments which the previous Government introduced in 1972 and which came into effect were influenced, to a considerable degree, by what had been shown to have occurred in regard to the amalgamation of unions into the Amalgamated Metal Workers Union. These new provisions were not given retrospective effect to prevent that amalgamation occurring. But the amendments of 1972 were designed to improve the amalgamation proceedings and to ensure that the rights of the membership of these unions were not overriden by union officials and others who were concerned to have an amalgamation take place. The amendments introduced in 1972 were designed to clarify the procedures and to protect the rights of the persons who were amalgamated.

What were the provisions which were then introduced? I think that it is important to consider them because the scheme of this Bill is to delete those provisions entirely from the existing legislation and to insert completely new provisions. What are the provisions which this Government now seeks to remove? The existing provisions in the legislation laid down the following procedures: A committee of management of a union was enabled to pass a resolution that an amalgamation should take place with another union. It was provided that the new organisation which was to be formed must be an organisation which complied with all the provisions of the Conciliation and Arbitration Act. The provisions required that a scheme for amalgamation was to be submitted in writing for the Industrial Registrar's approval. If the Registrar was satisfied that the provisions of the Act had been complied with, the scheme and the application for the amalgamation would be published in the Government Gazette. There was provision for objections to be made by persons objecting to the amalgamation. Those objections were to be lodged with the Industrial Registrar. If the Registrar, after considering the objections, approved the scheme, that scheme was to be submitted to ballots of the members of each of the organisations- that is, a ballot of the organisation which was to be taken over and a ballot of the members of the organisation which was taking over and creating the new body. It was provided- of course it is still law- that the ballot was to be conducted by secret ballot by postal voting and that it was to be conducted by the Industrial Registrar, his deputy or by the Australian Electoral Office. A copy of the amalgamation scheme was to accompany the ballot paper.

I think that it is fair to note that the legislation contained a provision that, where an extremely large organisation was taking over a smaller organisation, in particular circumstances that larger organisation could be exempted from the ballot provisions. A notice of the ballot was to be published at least 3 months beforehand in the Government Gazette. Provision was made for statements for the amalgamation proposals and against the amalgamation proposals to be submitted and to be despatched to all persons who were entitled to vote. There were provisions in the legislation for offences relating to the conducting of a ballot to be along the lines of the offences in the Conciliation and Arbitration Act. The amalgamation was to be approved if 50 per cent of the membership voted and if 50 per cent of that 50 per cent who voted in the ballot approved of it. In short, the provision was that first of all there had to be a vote of 50 per cent of the membership before it could be considered whether or not there was an effective vote for amalgamation. If 50 per cent of the members voted, provided the majority of that 50 per centthat is, 50. 1 per cent of that 50 per cent- voted in favour of the amalgamation, the amalgamation was approved.

We on the Opposition side appreciate that that provision has been criticised as being unfair. We of the Opposition entirely repudiate any suggestion that a majority of that size is unfair. Indeed, one is tolerant of the interests of what could be 75 per cent of the total membership of the organisation who theoretically could be opposed to the amalgamation. That percentage would comprise the 50 per cent who did not bother to vote and 25 per cent of those who actually voted but who voted against the amalgamation proposal. Conceivably, although I concede that it is theoretical, that number of persons could be opposed to the amalgamation and it would still be approved. We believe that it is consistent with the views of the membership of an organisation to require that half the membership should vote and that of those who vote a majority should favour the proposed amalgamation.

There is provision also in the existing legislation for a court- the Industrial Court- to inquire into any alleged irregularities which may take place. It contains a procedure for action to be taken after approval of the amalgamation, provisions relating to resignation of membership, provisions relating to the effects of the amalgamation on existing awards and there is a provision for the expense of the ballot which has been conducted to be borne by the Government. We of the Opposition believe that those provisions are sound provisions. If there are to be changes made to them, we believe that it is encumbent upon those who want the changes to illustrate what the changes should be and why they should be made. I think that one of the defects of the case which the Government puts forward for this new legislation is that it does not set out what is wrong with the existing procedures. We have had from the Postmaster-General (Senator Bishop) a speech which one must say is infinitely more informative than the speech made by the responsible Minister, the Minister for Labor and Immigration (Mr Clyde Cameron) in the lower House. It appears that Mr Clyde Cameron did not feel that this Bill was so important as to require a speech which went into any depth at all. To the best of my recollection, this was a Bill on which he gave an off-the-cuff extemporaneous speech.

In contradistinction to what the Minister for Labor and Immigration said in the House of Representatives, I must say that we had a prepared speech in the Senate from the PostmasterGeneral, but it is a speech which talks in generalities and does not deal in any way with specifics. It does not say what is wrong with existing amalgamation procedures. It is a speech which asserts that there are changes to be made and seeks to facilitate the changes. In the Minister's second reading speech there are some assertions which we would challenge. We do not believe, for example, that the strikes which have bedevilled Australia in 1 974 are the work of the small unions. We believe that the strikes have predominantly occurred in the larger unions. We do not believe, for example, that there is any evidence to show that demarcation disputes will be avoided if we have easier amalgamation provisions. Demarcation disputes on recent statistics have provided less than 10 per cent, as I recall the figures, of the industrial disputation which has taken place in this country. If one is to have regard to recent industrial disputes, one of the major disputes was on a demarcation issue within a large union. As I recall the position in the Transport Workers Union of Australia, which I suppose can be categorised as a fairly large union, the difficulties which arose in recent months arose because one section of the Transport Workers Union managed to secure an agreement under which its members received a $25 a week increase from an employer while there were other sections of the union- some Public Service and some not Public Servicewhich sought, initially unsuccessfully, to have the same increase awarded to them.

The elements of a demarcation dispute are as likely to be found in large unions and in different groups within that union as they are to be found within individual unions which have a dispute with other members of other unions. The Opposition feels that the case which is made by the Minister is a case which can be argued on the basis that a multiplicity of unions can create problems and that larger unions ought to be developed because there are greater facilities for research and for the informing of members. Those arguments one does not deny. But we equally believe that it is the right of the members to decide whether they want the amalgamation, and that is the pre-eminent consideration in an area that is of great importance to this nation. The wider the interest of union membership in the affairs of a union and the greater the encouragement which legislation can give to a wider participation by union members in the affairs of that union, the more democratic will be that union, the more representative will be the management of that union and the more responsible in the national interest will be the conduct of the affairs of that union.

What does this Bill do? It seeks to alter the existing provisions in quite significant ways. It provides a new provision for a scheme of amalgamation to be published in a journal of the organisation or in a daily newspaper. If that were the only provision in this new scheme I would have thought there was undoubted merit in it being adopted. But is it not the only provision in a completely new code of legislation. If the Minister is genuinely concerned to improve the amalgamation provisions so that the amalgamation provisions do work, I suggest that there can be a great area of co-operation. This is one area in which I am quite sure that the Opposition Parties would be interested in meeting the Minister for Labor and Immigration to see whether there cannot be some common ground to which expression can be given. But the take it or or leave it attitude which the Minister has adopted in just wiping the earlier provisions and inserting his own idea of what ought to be the new provisions makes it an impossible task for us to work out what could be effective amendments in a debate such as this. What I have said is an indication that if this provision which I have mentioned were taken in isolation I do not believe we would object to it.

There is, of course, provision in the Bill for the alteration of the grounds of objection which limit the grounds of objection which may be taken to an amalgamation. There is provision for an alteration of the ballot provisions. A ballot is still to be conducted by the Registrar, the Deputy Registrar or the Australian Electoral Office but only if a request is made by the committee of an organisation or by 250 members or 5 per cent of its membership who petition that it be conducted. Surely we have reached a stage in this country where the affairs of unions have such an impact on the public interest that it is a reasonable thing that if an amalgamation is to take place that decision be made by a ballot conducted by the Registrar, his Deputy or by the Electoral Office. I do not believe that there is any warrant for a ballot of this character to be conducted in accordance with the rules of the union as the committee of the union wants it, because we know that there are circumstances in which ballots of unions are not secret, in which there is exercised a degree of intimidation, in which persons would wish that they had an opportunity to exercise a postal ballot which is their own vote and not an intimidated vote.

Senator Button - It is already in the Act.

Senator GREENWOOD - I did not catch the exact interjection of Senator Button but, as I understand it, it is not a provision in the Act that that the ballot must be conducted in a particular way. It is sufficient if the ballot is a union ballot in accordance with the rules of the organisation and the circumstances of some union ballots are such that one cannot guarantee that the vote is exercised in secrecy or without the fear of intimidation or duress. There is also proposed an alteration whereby the approval of a ballot is signified if 50 per cent of those voting formally vote in favour of the provision. That could mean that there could be a 5 per cent or 10 per cent turnout and if there is a majority of that 5 per cent or 10 per cent turnout that is sufficient to bind the whole membership. We believe that that is not an adequate provision and that our original provision of a 50 per cent turnout is necessary before one can have an effective amalgamation.

There is a new provision which is frightening in its implications. It provides for one-fifth of the members of an organisation to be able to ask for a ballot where their own committee, charged with the management of their affairs, has declined to take any action to promote an amalgamation which happens to be sought by a larger organisation. There is also a significant omission in the provisions which the government seeks to introduce. This Bill does not re-enact the provision under which a case in support of the amalgamation and a case in opposition to the amalgamation must be circulated to all members entitled to vote. I would be interested to know whether there are spokesmen who are prepared to justify this provision and who could explain why that particular provision has been left out. The Opposition believes that no reasons have been advanced why the new amalgamation provisions should be preferred to the existing provisions. They are certainly facultative of amalgamation where there is a body which wants to promote an amalgamation but they are certainly not protective of the rights of members of an organisation which is sought to be taken over.

The provisions which the Government seeks to introduce are provisions which ignore the rights of members of existing organisations. They are provisions which permit the rights of the members of organisations to be overridden and I believe, and the Opposition believes, that they will enable a plain and unmistakeable abuse of power to be engaged in by persons who want an amalgamation of unions not for the purposes of improving the lot of the members of the unions but for other particular purposes. We in the Opposition believe that the concentration of power ought to be subject to checks. We believe that the Government should be consistent in the view which it expresses in this general area.

The Government has recently passed trade practices legislation. That trade practices legislation sought to reduce the concentration of power which comes about when large companies merge. Large companies were subject to restraints under the Trade Practices Act so that no merger of companies could take place unless it was consistent with competition. Provisions of that character are to be supported, as the Opposition supported them, but why should concentrations of power in the union field be allowed to take place not on a criterion of whether or not they are in the public interest but simply on the criterion of whether or not the organisation which wants to bring into its fold a smaller organisation is able to express that intention and to get some support for it?

The Government's attitude is inconsistent. Whilst opposing the greater concentration of power amongst the corporations of capital it is facilitating the concentration of power amongst the corporations of labour. Corporations of labour, like corporations of capital, if unrestrained and unchecked can operate against the public interest. What is required in this country is a consistent attitude which enshrines the public interest as represented in the government elected by the people and seeks to check the unrestricted exercise of power by groups who cannot claim the legitimacy of public support which the Government which exercises power can claim. It is regrettable that this particular Bill which the Government has introduced will facilitate that concentration of power. One does not know what are the areas in which amalgamations can take place but there are areas in which discussions have taken place or suggestions have been made in the past about amalgamations that could occur. Invariably it is not planned to take over the smallest unions in this country; the plans are for amalgamations of relatively large or medium sized organisations which want to grow larger.

May I by way of broad conclusion indicate what are the safeguards in the present legislation and the way in which those safeguards are removed? In the first place, a ballot of members of each existing organisation on the question of whether they approve of the proposed amalgamation of that organisation with other existing organisations shall be undertaken by a secret postal ballot conducted by the Industrial Registrar, his deputy or the Electoral Office. Secondly, there is a roll of voters which shall be a roll of the persons who were members of the organisation on a defined day. That roll excludes only the personsthey are carefully defined by the Act itself- who have become members more than 12 months before that day, are unfinancial on that day and have been unfinancial at all times in the 12 months preceding that day. Thirdly, there is a provision for 3 months notice to be given of the commencing and closing dates of the ballot. That is to be given in the Government Gazette.

Fourthly, not less than 2 months before the commencing date of the ballot the organisation may deliver a statement in writing supporting amalgamation, and members of the organisation being not less than 250 or 5 per cent of the total membership, whichever is the lesser, may circulate a statement in writing in opposition to the amalgamation. The important thing is that irrespective of whether the ballot is conducted by the Registrar, his deputy or the Electoral Office, a copy of each such statement shall accompany each ballot paper. There are even provisions at the moment whereby if different groups opposed to the amalgamation have difficulty in deciding what are the provisions of the statement which is to be circulated they can go to the Commission and have that settled by a deputy president. They are genuine safeguards. Fifthly, the regulations may make provision for ensuring equitable presentation of argument for and against amalgamation in periodical publications of the organisation and its branches after notice has been published that a ballot is to be held. Finally, the amalgamation is taken to be approved only where more than one-half of the members who record formal votes vote in favour of the amalgamation, provided that ballot papers are received from at least one-half of the members on the roll of voters.

It ought to be underlined and underscored that every one of those safeguards is removed from this Bill which the Government is sponsoring. Under this Bill, firstly the ballot of members on the question of whether they approve of the proposed amalgamation could now be conductedand in the ordinary course would be conductedunder arrangements made by the organisation itself. The committee of management or 250 members may request that the ballot be officially conducted' but even where such a request is made and acceded to the ballot must be conducted in accordance with any rules of the organisation that are applicable. Unless the rules of the organisation provide for a secret postal ballot- as few do- the members have no way of obtaining such a ballot. Secondly, the roll of voters would now comprise 'financial members of the organisation'. They are not otherwise defined. This removes the present statutory definition of 'financial members' which is contained in the existing amalgamation provisions and leaves it open for such abuse as can be conducted under the present provisions under which certain unions conduct their affairs. Thirdly, no notice would now be required to be given of the fact that a ballot is to be held. The present provision of 3 months notice in the Gazette simply disappears. Even the right of 250 members to request that the ballot be 'officially conducted' must be made within one month from the date of the direction under section 158ic'. Yet how is anyone to know that the ballot is to be held? There is no requirement that the Industrial

Registrar's direction under section 158k is anywhere to be published or advertised to the rank and file membership.

There is now no longer to be a right in those opposing the amalgamation to put their views to the membership. There is now no longer to be any power to enact regulations making provision for ensuring equitable presentation of the cases in periodical publications. An amalgamation is now to be taken as approved if, in the ballot or each of the ballots if there is more than one, more than one-half of the members who duly record formal votes in favour of the amalgamation. There is now to be no quorum whatever for the making of a decision involving the control, coverage and even the existence of an organisation of employees.

These omissions would be serious enough in themselves, but an additional provision is now proposed to be included in the Act which goes far beyond even the removal of the safeguards contained in the present Act and actually promotes amalgamation by giving an organisation seeking amalgamation rights over the intended subject for an amalgamation bid if the former organisation can enlist the support of as few as 20 per cent of the membership of the smaller organisation. Under this provision a predator organisation may submit a scheme for amalgamation to the committee of management of another organisation or organisations. By the mere fact that the committee of management of the second organisation does not, for whatever reason, pass a resolution proposing that its organisation be a party to an amalgamation in accordance with the scheme the Act would require a ballot of the membership to be taken if a request were made in writing for an officially conducted ballot of the financial members of the organisation, signed by not less than one-fifth of the members of the organisation and stating that the members signing the request believe that the committee of management has unreasonably rejected or failed to accept the proposed amalgamation. This is a charter for logging a smaller organisation.

If, to give an example, one examines the record of the Miscellaneous Workers Union of this country over the past few years one sees a record- which can be verified by examination of the various appointees of that union- which indicates that the union is capable of utilising its power to secure not only the 20 per cent of the membership of a smaller organisation dutifully to put in the petition or request but one can imagine also the wholesale moves which would be taken by the organisers of the larger union to move in wholesale on the smaller organisation with a view to securing the desirable result of the ballot.

I will not go into details but the workings of the Miscellaneous Workers Union are such that I would have thought that a full-scale inquiry would have been warranted- not that we are likely to get that inquiry from this Government. I know that there are some members in the Government ranks who know some of the things which might be disclosed by such an investigation. It is an alarming matter to see how power has been secured, maintained and exercised in the Miscellaneous Workers Union. It is unfashionable in some industrial circles to give expression to any view which suggests that ordinary unionists have rights. All knowledge is supposed to be vested in and best exercised by committees of management. There are many areas in the industrial field where the rights of the membership have to be recognised and given far greater effect and influence than they have had in recent times.

I think one of the better measures of the previous Government is to be found in the amalgamation provisions which that Government enacted, notwithstanding the bedlam which was engaged in in this chamber at that time by those who objected to those provisions. They are good provisions because they give a degree of control and influence to the members of the organisationprovisions which I hope can be extended and will be extended into other areas of union activity and union control in due course. It is on the basis that this Bill seeks to take away rights which union membership has with respect to amalgamations of their organisations, that the Opposition is adamantly opposed to this provision. We shall vote against the Bill.

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