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Tuesday, 30 May 1972
Page: 2275

Senator James McClelland (NEW SOUTH WALES) - I do not know how much it is appreciated by honourable senators on the Government side of the chamber that under this provision it is not necessary even for the leadership of a union to support a strike or to be shown to have played any role in the strike at all in order to attract these penalties. A careful reading of the clause will show that if a certain procedure is followed - if a dispute has been notified and has been investigated and, under this amendment, a settlement is not in sight - a certificate must be issued by the presidential member and this automatically leaves the way open for penalties to be imposed under proposed section 119. I often wonder why this Federal Liberal Government is so much more stupid than other Liberal governments in the states. For instance, in New South Wales, in the penalties provisions under the Act defences are available to union officials who come along and say that they have made every attempt to settle a strike. If that can be established the question of penalties is materially affected. In fact, penalties may not be imposed.

Senator Wheeldon - That is the case in Western Australia.

Senator James McClelland (NEW SOUTH WALES) - My friend Senator Wheeldon tells me that this also is the position in Western Australia. If a government is sincerely interested in industrial stability surely it will attempt to have a flexible penalties section. We do not agree that there should be a penalties section but if the Government's purpose is to use a penalties section in order to attempt to establish industrial stability, we suggest that at least it ought to attempt to have some sort of workable penalties system. When the Government does not attempt to get a workable penalties system the idea inevitably comes to us that the purpose of the section is not to ensure industrial stability but to provoke industrial unrest. There is no doubt that a close reading of proposed new section 33, which is to replace the old section 32a, shows that there has been an attempt to make the penalties section more inflexible. Thus when we are considering this proposed new section we really are entering the Government's fantasy world. No matter what life has taught it one would have thought that the Government had learnt that these penalties sections do not ensure industrial stability. In fact, there was some reason to hope that the Government was beginning to learn something when section 32a was inserted in die Act in 1970.

I remind honourable senators of the circumstances under which this section was written into the Act. We had the upheaval around the metal trades award towards the end of 1968 which led to the spate of strikes in 1969, in which the employers raced to the Commonwealth Industrial Court in case after case under old sections 109 and 111 - the contempt powers - 'and automatically had fines imposed on the unions with costs added. Far from settling the upheaval, these procedures aggravated the trouble. Finally, the Commonwealth Conciliation and Arbitration Commission recognised that it had made an awful mess of things with the award which suggested the absorption of over-award payments and it back-tracked. Even this Government, when it talks about the fines that were imposed at that time, is content with pious exhortations such as suggesting that it expects the fines to be paid. But it does not do anything about them. The Government knows that if ever the tribunal was in the wrong and if ever a legislative enactment was futile, it was in that case.

The Government appeared to have learned a lesson when it inserted section 32a which left a fairly wide discretion to the presidential member to investigate the merits of a dispute. Then, if he thought that issuing a certificate might prejudice the settlement of a dispute, he was under no obligation to issue a certificate. But that discretion now disappears. We read in proposed section 33 (7.), which was quoted by Senator Bishop: the Presidential Member shall not refuse an application-

He has no discretion whatsoever - for a certificate . . . unless he is satisfied that a prompt settlement of the matter giving rise to the conduct will be effected or that the conduct is otherwise about to cease.

In other words, unless the presidential member is satisfied that the strike is all over or that it is about to end, he has to issue a certificate. This is narrowing his powers a great deal compared to the discretion he had under section 32a. As I said, that section was an improvement on the old scheme. It is notorious that far fewer fines have been imposed under section 32a than under the old automatic contempt powers. What does this Government believe? Has it learned nothing from history?

Can anybody seriously maintain that tightening the sanctions powers in this Act will do anything to effect more industrial peace? I confidently predict that it will have exactly the opposite effect. For instance, a presidential member now has no discretion to say in relation to a strike which may be greatly damaging the economy: 'I believe that in these circumstances if I issue a certificate, far from this strike having a chance to be settled, it will aggravate the feeling between the parties and make a settlement less likely.' Old section 32a gives the presidential member that sort of sensible discretion. It is now taken from him. I can only conclude, as I said before, that the purpose of this section is not to ensure industrial peace; it is to aggravate industrial relations in the hope that this Government can emerge before the electors as the champion of law and order, as the custodian of all the righteousness of the community and as the people who come in and clear up the chaos which has been caused by these wicked unions. Of course, it is chaos which the Government is attempting to create. That is the real purpose of this proposed section.

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