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Thursday, 13 May 1965

Senator WRIGHT (Tasmania) .- In addressing myself to the Bill, I can only think that the author of it is a willo'thewisp. It is a Bill that is not only futile; it is silly, it is mischievous and it is misconceived. I shall offer my comments with regard to the actual content of the Bill after taking notice of the wide range covered by Opposition speakers in the debate. The discussion has developed on the submission of the Leader of the Opposition (Senator McKenna) that there is a right to strike. He certainly concedes that this right is not unlimited, but he asserts it in the Australian context, in which the right to strike should not be restrained in any way by the conciliation and arbitration tribunals that we have set up and maintained for half a century. On the other hand, I should have thought that it was Government policy, which all bills introduced by this Government would support, that the right of employer or employee organisations or members of those organisations to strike should be restrained and qualified by our tribunals, arbitral or judicial, according to their judgment. It is an essential part of our Australian way of life that we have implicit faith in the impartiality of those tribunals whose special interest is in the industrial field.

It is to me an indication of the backward thinking of the Australian Labour Party that it advances this argument in relation to such a Bill as this. Let me make just one reference to the history of these matters. We do well to remind ourselves that the trade union movement is a great movement which could, under proper leadership, confer immense benefit upon the community and which, even under the present handicapped leadership which it suffers, does confer great benefits on this community. Despite the Communist component of the Australian Council of Trade Unions. I pay my tribute to the generally well balanced viewpoint that that body exerts in the general industrial field in Australia. But, " Mr. President, when we hear an argument advanced so vigorously by the Leader of the Opposition, it is well to remind ourselves that the trade unions gained strong recognition in the industrial field about 1900, when the Taff Vale case reminded them that under the law, if they pulled on a coal strike, as they did in that instance, causing about £100,000 damage to the coal company, the amount of the damage was recoverable from the union.

Senator O'Byrne - Men were sentenced to imprisonment for the term of their natural lives for forming a union originally, so it was a long way from the Taff Vale case. Men had to strike to get their rights and they must never give up that right.

Senator WRIGHT - I do not gainsay what Senator O'Byrne says, but that is the previous century's history. Goodness gracious me, I do not yield to the honorable senator in proudly paying this tribute, that they earned the recognition of which I am speaking. I am just mentioning the fact, if the honorable senator will permit me to present my theme, which to me is of some interest and which, I hope, is not of dis* interest to the Senate. The Taff Vale decision established, as I have said, the liability of the trade unions for any damage caused by illegal action in prosecuting an industrial strike. The decision led to an enormous political campaign in England between 1900 and 1906. Tt culminated in a decision of the Liberal Government of the day, which made a bargain in order to secure the support of about 40 of the original Labour members who had entered the House of Commons up to that time. The Liberal Government passed the Trades Disputes Act which in England - the cradle of the common law - gave complete immunity to trade unions from any legal liability for illegal action in the course of prosecuting an industrial dispute.

I mention those things because it always makes my blood run a little more freely to remember what we have achieved. We in this land of convict settlement established our system of law, as Senator Murphy told us this afternoon, on the original tribunal of justice - a military court. A century later England was releasing the trade unions from any liability for any illegal action in the course of industrial disputes. But two years before England took that step, Alfred Deakin had brought into this Parliament the original Conciliation and Arbitration Bill, which brought the organisations of employers and employees in this country under a system of industrial law to which all sections of the community and all sections of political thought in this country have from that time onwards paid tribute. The system had to grow with all its complexities. It has developed an extreme complexity, and that is a disadvantage. But under the supervision by tribunals of the industrial law we have developed an economy which has narrower gaps between the rich and the poor than exist in any other economy in the world. No responsible leader of the trade union movement in this country would deny that members of that movement have, by means of this system, gained enormous advantages.

So, while England was releasing its trade union movement from the providence of law, Australia submitted its trade union movement to supervision by industrial tribunals under the law, to the great advantage of our system. Let us reflect for a moment on the sad position of the shipping industry and the aircraft industry in Great Britain. Those industries have been eroded and corroded by the inter-trade union disputes that have prevented Great Britain competing with Germany and Japan in the shipping field and with America in the aviation field. But in Australia, on the contrary, the people have created an economy that is the envy of all. There is unlimited prosperity in the country. We have ample prospects of building up industry with some assistance from our conciliation and arbitration system.

Having said that, let me now work myself into a proper and reasoned consideration of the Bill. Our Constitution limits the power of this Parliament to conciliation and arbitration in industry in the Federal sphere. One of the great defects in this regard is that no proper consideration has been given to the recommendation of the Constitutional Review Committee that that power should be greatly extended. We recently witnessed a strike at Mount Isa which, due to our Federal deficiency in this respect, was allowed to continue at a time when copper was a pregnant item in our economy. The country lost between £30 million and £40 million because of the strike. The High Court and the Privy Council demonstrated in 1955 that the limited power that we had under the Act was a power to create arbitration tribunals. Having regard to the judicature chapter of the Constitution, if we wished to enforce the law within that realm we had to have separate judicial tribunals. The Government of the day reasoned that it had six or seven judges on the old industrial court. It had to have one tribunal that was judicial and one that was arbitral. It decided to divide the number of judges into two groups. It decided that it would call the first group of judges the Industrial Court and the second group the Conciliation and Arbitration Commission. The arbitral functions would belong to the Commission and the enforcement functions would belong to the judicial tribunal called the Industrial Court. So you have in section 109 of the Act a jurisdiction committed to the enforcement tribunal - the Industrial Court - composed ofjudges to administer the law.

The section, so far as it is relevant, provides two things. It empowers the Court, first, to order compliance with an award and, secondly, to issue an injunction against committing or continuing a breach of the award. First, the Court has jurisdiction to issue an order, " Positively you shall comply with the award." That is a mandatory order. Secondly, the Court has power to say, "You shall not commit or continue a breach of the award." It may be an overstatement of the position to say that the first power is Tweedledum and the second is Tweedledee. If there is a breach of the award, under the first power the Court says, " Comply with that provision of the award ", and under the second power it says, " Cease to continue the breach of that award." Each power, if enforced achieves compliance.

We are toldthat a provision embodied in the Bill hearkens to the resentment that the trade union movement feels over the jurisdiction possessed by the Industrial Court. The Bill provides for a cooling of period, if you please. I have read of legislation in the United States of America called I think, the Taft-Hartley Act, which provides in certain cases that the right to strike shall be suspended if an order is issued that you shall not enter upon your strike for 28 days or 14 days, as the case may be, after a dispute occurs. Everybody knows the substantial provision in the American legislation to which I refer. Prima facie it appeals to those who think that workmen, as well as employers, enjoy prosperity from continuity in industry and the least possible dislocation of industry consistent with equitable treatment of workmen. When we speak about that situation, the precept to postpone a strike is addressed to the participants in the strike. It is addressed to either the employer, in the case of a lockout, or to the employee organisation in the case of a strike. In this Bill we do not have the precept to postpone a strike or lockout addressed to the participants in the dispute. The Bill precludes the Commonwealth Industrial Court from commencing to hear an application to enjoin the parties not to continue with the strike.

In this Bill we have the machinery to protect the inception of the dispute. It states that the Industrial Court shall not commence to hear an application in respect of a breach of the award unless a commissioner or a presidential member has been notified that the breach or non-observance of the award is likely to occur. Restraint and patience are not to be indulged in. Unless the parties are prompt in notifying the commissioner, or a presidential member, the parties are not entitled to receive an order for injunction from the Court. Clause 6, which seeks to insert the new section 109a provides, amongst other things, that the Court shall not commence the hearing of an application for an order unless the Court is satisfied that -

(b)   that-

(i)   the notification was given without delay; or

(ii)   a Commissioner or a presidential member of the Commission has certified that there was reasonable cause for delay in giving the notification; and

(c)   subject to the next succeeding sub-section, that a period of fourteen days or such longer period as a Commissioner or a presidential member .of the Commission has determined, has elapsed since the notification was given.

A period of 14 days has to elapse - it could bc longer - during which a conciliation commissioner may entertain the hope that he can achieve a result by conciliation. The Mount lsa dispute continued for six months on that basis.

In 1956 the Industrial Court was set up for the specific purpose of enforcing the provisions of awards according to its judgment and ils ideas of industrial justice and equity. But during the time lapse this tribunal, by virtue of the provisions of this Bill, will be prevented from commencing lo hear an application. This is what is called a cooling off period. To me it appears to he a provision which ties the hands of the Industrial Court behind its back while the parlies get hotter and hotter.

If 1 need any certificate for the inanity of such a measure it is provided by the amendment that was introduced as a last thought in the Committee stage in another place. I invite the Senate to examine the proposed new section 109a (3.1, which embodies the amendment introduced in another place. I think that the proposed subsection (3.), wilh all the paraphernalia, shows the stupidity of the Bill. It provides that where an application for an order for compliance with an award is made at the same time as an application for an injunction to restrain the committing of a breach or the continuance of breach, the preceding provisions of the proposed new section do not apply. Having provided that the Industrial Court shall have no jurisdiction to commence hearing an application for ari injunction to restrain the continuance of a breach during 14 days or such longer period as an industrial commissioner might determine, the provision then says to forget all about it if the applicant for the injunction has at the same time lodged with the Court an application for a mandatory order. To paraphrase " Alice ", it seems to me that this is a case when little oars with little hands and little skill are plied. I shall leave the Bil! on that basis for the consideration of the Senate.

I only want to add one further comment and that is in regard to the odious question of vertiginous costs. In 1956 we were simple enough to say to the Industrial Court: " You shall have jurisdiction, in relation to any matters before you, to order such costs as in your judgment are just ". I refer to section 116 of the Conciliation and Arbitration Act. It states -

The Court may make such orders as it thinks just as to the costs and expenses (including the expenses of witnesses) of proceedings before the Court, including proceedings dismissed for want of jurisdiction.

Do not let it be thought that I do not have immeasurable respect for the performance of the Court, having regard to the respect that is due in a House of Parliament to any judicial court in the land. I shall leave it at that. On another occasion, when the administration of justice is before us with reality, I shall point out how some tribunals are overloaded and lagging in their work because they have five times too much work to do, whereas this Court scarcely gets enough work to occupy one-fifth of its time. But that does not entitle anybody to impute to it a want of justice when it comes to the question of dealing with costs. Oh, the irony of these things. I am quite incapable of summoning to my soul any feeling of resentment, malice or prejudice over these matters. My patience has enabled me to study them objectively over 15 years with full awareness of the draftsmanship that is available to our Ministers. I want to draw attention to clause 8 of the Bill and the inoffensive little way in which the whole provision is subordinated to government decision as announced by these words -

Section 116 of the Principal Act is amended by omitting the word " the " and inserting in its stead the words " subject to the regulations, the". . . .

The regulations are to enable the Government of the day to prescribe the measure of costs as it thinks fit, subject to that prescription by regulation. The Court is entitled to make such order as to costs as it thinks just. I mention that matter for two purposes. I submit that honorable senators will not find a precedent where such an affront has been offered to any court of justice, which is always given the proper jurisdiction to award, according to its discretion and judgment, such costs as are just.

Mr. President,the judges of the Court themselves make rules which are submitted to Parliament for disallowance if need be.

They prescribe the scale of costs. That is not the position here. Nor is the position here that which is stated in the second reading speech of the Minister, that the law we pass tonight is going to ensure that in applications under section 109 of the Conciliation and Arbitration Act before the Commonwealth Industrial Court, the costs of junior counsel only shall be allowed unless the court certifies that the case was proper for the employment of senior counsel. That is to be dealt with in the regulations. But it is not written into the Bill, as one might have gathered from statements that have been made with regard to this matter, although the second reading speech clearly sets it out.

It is showing less than respect for the intelligence of this chamber to submit to honorable senators the Bill either in its original form or amended form. I submit that the provisions insofar as they restrict the jurisdiction of the Industrial Court in relation to its proper function, which is the enforcement of awards, the issue of an award, the compelling of compliance with an award or the issue of an injunction to prevent parties from continuing to breach an award. That is the Court's proper function. To handicap the Court in the way in which this Bill originally intended, ever, though that handicap is made completely illusory by the amendment, is not appropriate in legislation that governs a tribunal that is expected to do industrial justice in this sphere.

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