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Tuesday, 20 August 1985
Page: 58

Mr WILLIS (Minister for Employment and Industrial Relations)(5.50) —I move:

That the Bill be now read a second time.

The Bill currently before the House is an historic piece of legislation. It represents a major departure from the normal processes for dealing with industrial relations problems in this country. Its objective is to provide machinery for the cancellation of the registration of the Builders Labourers Federation under the Conciliation and Arbitration Act or to provide for the effective equivalent of such deregistration in parts of Australia. Such action cannot be taken lightly. However, we have come to a point where the actions of the BLF are, in our opinion-and, we would believe, in the opinion of the community as a whole-totally unacceptable.

Despite being given many opportunities to do so, the BLF has shown, time and time again, that it is not willing to adhere to the established industrial relations processes. Indeed, it has treated those processes with absolute contempt. In so doing, the Government believes that the BLF has, on numerous occasions, breached undertakings to the Federal Court of Australia, the Conciliation and Arbitration Commission, the Industrial Registrar, the Commonwealth Government, building industry employers, and even the Australian Council of Trade Unions. It is now patently clear that the BLF leadership is utterly untrustworthy and that it regards undertakings and agreements as mere stratagems to achieve a momentary advantage which can then be disregarded at will. Furthermore, its unprincipled, indeed outrageous, mode of operation has created havoc in the building industry, thereby causing extraordinary delays in building programs and crippling increases in costs. Its use of tactics such as breaking concrete pours, reckless application of work bans, resort to walk-offs or `homers', and claims for payment for time on strike, has made industrial relation in the industry a nightmare. Its resort to industrial blackmail, thuggery, violence and intimidation has added a further ugly dimension to its activities. Such behaviour cannot be tolerated and has resulted in the virtual alienation of the union from the rest of the trade union movement in some parts of the nation.

The building and construction industry occupies a vital role in the Australian economy. The Government has deliberately encouraged the industry as a major force in renewed economic growth since 1983 and activity is expected to continue to grow strongly in 1985-86. The continuation of that expansion and its contribution to the nation's economic prosperity has, however, been put at risk by the industrial disruption caused by the BLF. The Federation has around 35,000 members in non-residential construction, with almost 70 per cent of them employed in the industry in New South Wales, Victoria and the Australian Capital Territory. It has been the actions of the Federation in these areas which have been most disruptive and which have led to the legislation now before the House. The Federation's members are on site at the beginning and the end of projects and are involved in key activities in the course of a job, including steel fixing, concreting, scaffolding, crane driving, dogging and general trades assistance. This central position has been used ruthlessly by the BLF. Tactics such as bans on strategic equipment and parts of jobs, broken concrete pours, bans on truck deliveries and unloading and on overtime have been deployed with the objective of `the most harm to the boss, the least harm to ourselves'-to quote the New South Wales State Secretary of the Federation.

The BLF has become expert at exploiting the vulnerability of the construction process to press its demands. It has fully exploited the fact that once a project is under way, very often the cheapest alternative for an employer is to succumb to a demand rather than risk losses far in excess of the cost of an industrial settlement. This is not to excuse employers, however, some of whom have been far too willing in the past to accommodate the BLF. BLF tactics have also extended to action against parties not directly involved in the industry and even against other unions. Federation members have occupied buildings of insurance companies, private organisations and the Office of the Industrial Registrar and, at least on one occasion, premises of another union. The Federation has also shown disdain for the processes of conciliation and arbitration. It has continuously refused to abide by orders of the Conciliation and Arbitration Commission and consistently pursued claims outside the guidelines of the Commission. Further, it has broken numerous undertakings as to its conduct given to the Australian Conciliation and Arbitration Commission, the Industrial Registrar and the Federal Court of Australia.

These activities of the BLF are not a recent phenomenon-indeed, the Federation has been a major disruptive force in the industry throughout the past decade and a half. In 1974, the Federation was deregistered by the Industrial Court following four years of turmoil in the industry. In October 1976, the Federation was reregistered after giving specific undertakings to the Industrial Registrar to abide by decisions of the Commission and to participate fully in the prevention and settlement of disputes through conciliation and arbitration. Mr Gallagher, the Federal Secretary of the BLF, told the Commission in 1976:

I can further submit that the Commission can properly and confidently assume that the policy of this Federation is to resort to conciliation and arbitration through the Commission rather than direct action in breach of the Act or in breach of Awards of the Commission.

Mr Gallagher went on to say:

. . . the Union gives assurances that the employers can expect that acts of destruction of property, interruptions to concrete pours, interrupting the unloading of vehicles and the use of selective bans on vertical transport machinery, such as cranes, passengers/material hoists, which would inhibit the work of builders' labourers and of tradesmen will be forgone.

The record shows that from this time the union has had scant regard to these undertakings. It has, on a multitude of occasions, engaged in the kind of conduct it repudiated before the court, and its industrial record contains numerous examples of harmful demarcation disputes, broken concrete pours, violent conflicts with police and fellow unionists and disruptive campaigns over non-industrial issues.

The activities of the union over the period were well summarised in the 1982 report of the Winneke Royal Commission into the Activities of the Australian Building Construction Employees and Builders Labourers Federation:

These tactics find no support or condonation in any industrial legislation in this country. The conduct not only exceeds the bounds of industrial propriety but, in many instances, plainly transgresses the Criminal Law . . . The result has been to place the BLF in a unique position-a position of being above the law.

In March 1983 when this Government took office, we were confronted by major difficulties in the industry. Industrial relations were at an extremely low ebb with widespread disputation revolving around award renegotiations involving all unions and the ongoing proceedings for deregistration of the BLF initiated by the previous Government in 1981. It was clear that those deregistration proceedings-initiated by the current leader of the opposition (Mr Peacock)-had little chance of achieving a lasting improvement in the industry. They were strongly opposed by the whole union movement, which would have backed up the BLF if it had been eventually deregistered. Despite the fact that the proceedings had already been under way for two years, there was every chance they could have meandered on for a number of years. Moreover, the proceedings had been initiated with absolutely no consultation with industry employers who were reluctantly dragged into the case. The general feeling amongst employers at the time was that they had been put into a no win situation by the Government of the day.

This Government adopted a strategy in 1983 and consistently through the next two years that the problems of the industry could best be solved through consultation and co-operation, leading to a negotiated settlement involving all parties, backed up by the Government. However, if this approach failed, the Government was prepared to take strong and effective action to achieve stability. In April 1983, the Government established the National Building and Construction Industry Conference under an independent Chairman to look at establishing the basis for a withdrawal of deregistration proceedings and so facilitate the establishment of an industry agreement. Building employers, unions, the Federal Government and the ACTU were represented at the Conference. In May 1983, agreement was reached, including a moratorium on further industrial action, as a basis for adjournment of the deregistration proceedings. As part of this agreement, the BLF reaffirmed, in detail, the undertakings it gave on reregistration in 1976. In the months that followed, negotiations between the parties continued, resulting in the building industry agreement.

The agreement provided, in return for superannuation, the most comprehensive package ever agreed upon in the industry to address the major industrial problems which had bedevilled the industry over a long period. Specific procedures were laid down to handle disputes including a seven-day cooling-off period. Practices such as claims for payment for time on strike, cash in hand, pyramid subcontracting, contrived safety issues, no-ticket no-start and demarcation disputes were specifically addressed in the agreement. There was also an agreement on no extra claims. It was hoped that, with the support of employers and all unions, the agreement would lay the foundation for a long period of stable industrial relations.

At the same time as the industry agreement was being developed, negotiations continued to seek a satisfactory basis for resolution of the deregistration proceedings, and in December 1983 the Government agreed to accept undertakings given by the BLF as the basis for withdrawing from the proceedings. Central to the Government's decision was the position taken by the ACTU, which supported the BLF's commitment and resolved to take all reasonable steps to ensure its observance by the union.

The BLF undertook to recognise its responsibilities as a registered organisation to work within the provisions and spirit of the Conciliation and Arbitration Act and the national wage principles, and to utilise the means provided by the Act for the prevention and settlement of industrial disputes. Earlier, in October 1983, the BLF had given a no extra claims commitment as required under the national wage principles. Again, only a few months passed before the BLF repudiated these commitments. During February 1984, the BLF embarked on a widespread and particularly disruptive campaign for a $9 pay claim rather than participating with other unions in negotiations for a superannuation scheme. Eventually, combined pressure from the Government, the ACTU and other unions convinced the BLF to drop its claim.

During the first half of 1984, the employer applicants were still pursuing deregistration. However, many employers recognised the problems associated with that course, especially when the necessary circumstances for it to be effective did not exist. In June 1984, the employers withdrew from the proceedings on the basis of a commitment by the Government to take effective action against the BLF if it failed to adhere to the industry agreement.

No sooner had the deregistration been terminated, however, than the BLF launched a widespread campaign seeking superannuation outside the building industry agreement. Although other unions had signed the agreement the BLF, which had been fully involved in negotiations leading to the agreement, broke away, refused to sign the agreement, and sought superannuation through an extremely disruptive industrial campaign. Further industrial action was taken in relation to charges against Mr Gallagher arising out of the Winneke Royal Commission.

Matters came to a head in September 1984 with vast sections of the industry in all States affected by the campaign. Again the BLF practised its typical style of brinkmanship and, when confronted with a preparedness by the Government to take strong action, the BLF sought a last minute tactical retreat and finally signed the agreement. However, the BLF's intentions of adhering to the terms of the agreement were soon in question. At the same time as it was signing the agreement, the BLF continued industrial actions over claims for strike pay and continued employment for its members at the Sydney Police Centre as well as in pursuit of shorter hours on shopping centre sites.

On 12 October 1984, building unions in Sydney met at a large combined meeting and condemned BLF's conduct at the Police Centre and alleged that 14 BLF members at the site had been involved in violence, threats and intimidation against fellow workers and their families. Calls by the ACTU executive and the Commission for an end to all BLF action over the site were ignored. Over 2,000 workers were stood down in New South Wales alone, with major sites all over the rest of the country also being affected. This action led to the decision by the New South Wales Government to deregister the BLF from the State's industrial jurisdiction. It was only at the end of February that bans were eventually lifted with a commitment by the BLF not to pursue claims for lost time-a commitment that was later ignored as other sites were banned in pursuit of such payment.

Meanwhile the BLF pursued its national campaign for a 36-hour week on shopping centres with a large number of projects in most States being forced to the point of closure. These claims were in clear breach of both the national wage principles and the building industry agreement. Furthermore, numerous bans and stoppages were imposed in all States in protest at the conviction and gaoling of Mr Gallagher.

The union's industrial action was only dropped in July when the resolve of Federal and State governments to act became obvious. The Victorian Government decided at this stage to legislate to deregister the BLF from its industrial jurisdiction.

Mr Deputy Speaker, it is abundantly clear in these circumstances that there is absolutely no course open to the Government than to introduce this legislation now before the House. The time has passed for yet another `last chance'. Since March 1983, the Government has explored every constructive option for achieving a resolution through the normal industrial processes to the problems posed for the industry by the BLF's behaviour. And yet these opportunities have invariably not been accepted by the BLF.

Mr Deputy Speaker, I now turn to the detailed provisions of the Bill. The Bill provides for two steps. First, a hearing is to take place before the Conciliation and Arbitration Commission so that it can be independently determined whether the Federation has engaged in certain forms of serious industrial misconduct. Secondly, where the Commission so finds, the Minister will be able to take action against the Federation to exclude it from the Federal conciliation and arbitration system altogether, or limit its capacity to operate within the system. I should stress that the measures proposed by the Government against the Federation are being introduced because the Government believes that the Federation's conduct amounts to repudiation of the federal system for the prevention and settlement of industrial disputes and of its responsibilities as a federally registered organisation of employees, as well as being utterly disruptive to industrial peace.

In the Government's view, the action which is contemplated in this legislation is so serious that it is essential that there be impartial consideration by an independent tribunal of the Federation's conduct. This will occur against specific criteria which are appropriate tests of whether the Federation has behaved responsibly as an organisation registered under the Conciliation and Arbitration Act in a way which is consistent with the objectives of our industrial relations system. Clause 4 therefore provides that where, on an application by the Minister, a Full Bench of the Commission is satisfied that the Federation has engaged in certain actions, the Commission is to declare in writing that it is so satisfied.

The first of the criteria in clause 4 concerns the Federation's record of compliance with its undertakings and agreements. The Commission will be able to consider whether the Federation has, by engaging in industrial action or by making claims supported by industrial action, contravened or acted inconsistently with the intent of agreements and undertakings to which it is a party. These include the building industry agreement which I referred to earlier, as well as the Federation's various undertakings to the Commission, the Registrar or the Federal Court of Australia. Undertakings given by the Federation to a party to a proceeding in which the Federation was involved before any of these tribunals are also included. And that, of course, includes its undertakings to the Government and to the employers given before the Federal Court in 1983 and 1984.

The agreements which the Federation has entered into and the undertakings it has given are all fundamental to its participation in the conciliation and arbitration system. As I have said, the Government, employers and many unions see those agreements and undertakings as meaning little to the Federation and the Commission will have the opportunity to determine whether that is so.

Provision is also made in clause 4 for an examination of whether the Federation has engaged in conduct which has seriously hindered or prevented the achievement of an object of the Conciliation and Arbitration Act 1904, or whether the conduct of the Federation has been inimical to the prevention and settlement of industrial disputes by conciliation and arbitration. The Federation will be given the opportunity of presenting argument on its conduct. This is provided for in clause 6.

For the purposes of clause 4, the Federation is made responsible for any industrial action or conduct by its members if it instigated or encouraged such conduct or action, or the Federation does not prove that it took all reasonable steps to prevent it. Once the Commission has made a declaration, the Bill provides for alternative courses of action against the Federation.

Clause 5 provides for the Minister to order the cancellation of the Federation's registration. This would mean that any award applying to the Federation or to its members would cease to have any force or effect in relation to them.

After its deregistration, the Federation would, under clause 7, be denied the capacity to be a party to any proceedings before the Conciliation and Arbitration Commission and the Commission would not be able to deal with any industrial disputes to the extent that they involved members of the Federation. Before the Federation could be reregistered, the Minister may, under clause 5, specify conditions with which the Federation must comply.

There are alternatives to ordering the cancellation of the Federation's registration. The Minister may under clause 5 terminate or suspend the Federation's rights, privileges or capacities, or those of its members, under the Conciliation and Arbitration Act or under the rules of the Federation.

Under clause 8, the Minister may make orders so that the Federation ceases, while it remains registered, to be able to have coverage of employees engaged in work coming within the Federation's rules in parts of Australia specified by the Minister. Clause 8 also provides that, upon the making of such an order, the Federation is no longer able, for the purposes of the Conciliation and Arbitration Act, to make any claims for or on behalf of any persons or to represent any members in the area specified in the order. The making of such an order will mean that the Federation cannot seek new awards or recruit members in relation to work in the relevant area. As to existing awards, clause 8 provides that any award applying to the Federation or its members ceases to have effect in relation to them unless, within 28 days of the making of the Minister's order, the Commission varies the awards so that they do not apply to the Federation or its members in the area specified in the order.

Clause 8 therefore permits a selective approach to be used in relation to the Federation. It will permit the Government to take action against the most disruptive sections of the BLF while allowing the more acceptable section to remain within the federal system. At this stage, this is the approach which the Government proposes to adopt. The action to be taken under this approach will, together with appropriate supplementary action under clause 5 in relation to the rights, privileges and capacities of the Federation, mean that consequences similar to those resulting from deregistration can apply, if necessary, to the recalcitrant elements of the union.

Whether the Federation has its registration cancelled or selective action is taken in relation to its representative rights, the Minister is able, by virtue of clause 9, to allocate by way of a declaration to any other federally registered unions coverage of work in an industry in respect of which the Federaton is or has been registered under the Conciliation and Arbitration Act. The relevant union would be required to consent to the Minister taking this action. Such action may be taken in relation to a particular part of Australia and may involve different kinds of work and different unions. This will enable the continued effective representation for the purposes of the Conciliation and Arbitration Act of persons who would otherwise have been eligible for membership of the Federation where it is deregistered or has its representative rights removed.

The Bill also permits the Conciliation and Arbitration Commission to allocate Federation work coverage to other federally registered unions. The Commission may consider such allocation of work coverage where an application is made by a federally registered union or by the Minister. The Commission will have to be satisfied that it is desirable for the union concerned to have that work coverage allocated to it so that the objects of the Conciliation and Arbitration Act are achieved and the employees concerned will be effectively represented for the purposes of the Act. The Act will cease to be in force by virtue of clause 15 on a day to be fixed by Proclamation.

This Bill represents positive action by the Government towards securing improved industrial relations in the industry. The Government expects support from the industry to ensure the success of measures taken under it. In conjunction with the measures in the Bill, employers will be expected to adopt a code of industrial behaviour to rid the industry of the improper practices being fostered by the BLF. Although such a code will require no more than stringent adherence to awards, agreements and normal industrial practices, its implementation would be a major step towards improved industrial relations in the industry. The Government is also giving consideration to non-legislative measures designed to ensure that contractors on government projects adhere to government industrial relations policies. We will be approaching State and local governments to adopt similar measures.

It is essential that this legislation be enacted with the utmost expedition. The Government will be looking to the co-operation of all parties to ensure its rapid progress through the Parliament. As soon as the legislation is passed, I will be applying to the Commission for the declaration which is required under the Bill before any action can be taken against the BLF. The Bill provides for an expeditious hearing before the Commission and the Government will take every feasible step to ensure that this is the case. I commend the Bill to the House.

Debate (on motion by Mr Shack) adjourned.

Sitting suspended from 6.14 to 8 p.m.