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Thursday, 17 December 1992
Page: 5277


Senator POWELL (9.47 a.m.) —I move:

  That this Bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

  Leave granted.

  The speech read as follows

Sections 45D and 45E of the Trade Practices Act which prohibit secondary boycotts and agreements giving effect to secondary boycotts were introduced into the Trade Practices Act by the Fraser Government. Section 45D has operated since 1977 and Section 45E since 1980.

During the entire period of its existence, section 45D has not been widely accepted as a provision concerned with competition—rather it has become more a weapon directed at the industrial relations activities of trade unions under the guise of competition policy. The Fraser Government amended section 45D in 1978 and 1980 to broaden its application against union activities. In addition, during 1980, section 45E was introduced into the Trade Practices Act. Section 45D commonly operates to prohibit boycott situations arising from a refusal by employees to handle goods intended for a third party for the purpose of pressuring the third party to accede to certain demands. Section 45E supplements that provision by prohibiting contracts, arrangements or understandings between a union and another person to prevent or hinder the supply of goods or services to, or their acquisition from, a third party.

Sections 45D and 45E have been the subject of considerable controversy since their introduction. The essential concern of the trade practices legislation is to promote fair trading and free competition. On the other hand, the real purpose of sections 45D and 45E is to prohibit union activity which usually has little or no detrimental effect on competition or fair trading. In the context of legislation dealing with trade practices matters, the sections provide unrealistic sanctions to be applied against unions in relation to their industrial activities.

The principal objective of any regulation in the area of secondary boycotts must be the speedy, fair and effective resolution of the underlying dispute. This is not achieved by the legislative prohibition of secondary boycott activity. Indeed, provisions such as sections 45D and 45E may only serve to exacerbate a dispute and resort to them may result in a worsened industrial relations climate not only between the parties, but in the relevant industry as a whole The special characteristics of industry disputes demand that they be handled by expert bodies under our industrial machinery rather than under trade practices legislation which is not designed to resolve the underlying issues which give rise to the boycott activity.

Action under the Trade Practices Act in respect of secondary boycott disputes is neither the most appropriate course for resolution of the dispute nor necessarily a particularly quick or effective course of action. In some cases the issuing of injunctions under the Trade Practices Act has even exacerbated disputes.

In 1984, the Hawke Government moved to change the arrangements to deal with secondary boycotts, through the Trade Practices Amendment Bill 1984 and the Conciliation and Arbitration Amendment Bill (No. 2) 1984. The intention was to repeal sections 45D and 45E of the Trade Practices Act and to replace them with a more effective mechanism for dealing with secondary boycotts under the Conciliation and Arbitration Act.

At the time, Senator Button, introducing the Bills into the Senate said:

The Government's position is absolutely plain—the Government does not, in any way, condone the industrial tactic of a secondary boycott. However, the Government does not believe that such action is so different in nature to other forms of union and employee action in support of their industrial claims that it should be singled out to be dealt with under the Trade Practices Act, rather than through the established industrial channels.

The Government is concerned about the possible effect of the remedies of penalties and damages which are available under the Trade Practices Act for contraventions of Sections 45D and 45E. These are potentially highly disruptive to Australia's industrial relations. Their application, where boycotts occur, is unlikely to lead to the effective or satisfactory resolution of a dispute.

Following our repeal of these Sections, the Government is not proposing to leave a void in the handling of such disputes. Let no-one underestimate our concern at the impact of these disputes. What the Government is proposing is an alternative mechanism whereby such disputes can be dealt with, in the first instance, through the established industrial relations machinery. Such a course of action will ensure that boycott matters are dealt with effectively and speedily through the tribunal best qualified to deal with them.

Accordingly, the Government proposes that, upon the repeal of Sections 45D and 45E, the Australian Conciliation and Arbitration Commission should be able to deal with such disputes where a federally registered union or its members, or work under a federal award is involved. We believe this should also apply where these boycott disputes do not concern strictly industrial issues. The Commission should be able to bring the parties together to see if they can settle their differences.

We propose to allow the Commission to conciliate in relation to these disputes. This is similar to what exists at the moment, but with a significant improvement. Instead of the delays under the present arrangements which require the initiation of Federal Court proceedings under Section 45D or 45E, anyone involved in or affected by a boycott dispute will be able to notify the Commission immediately, and the Commission will also be able to act of its own motion. These matters should be dealt with as quickly as possible by the Commission and provision is to be made to ensure that this will be done.

The legislation will enable the Commission to deal with boycott disputes in relation to both industrial matters and non-industrial issues. Industrial matters will be the same as those which the Commission can deal with in its normal jurisdiction except that they will not require a particular employment relationship. Security of employment which sometimes gives rise to boycott disputes will be included as an industrial matter for the purposes of the Commission's jurisdiction under this legislation.

We do not believe that the Commission should be asked to deal with boycott disputes over non-industrial issues if it cannot play any useful part in their resolution. Provision will therefore be made to require the Commission to make a threshold judgement as to whether it will be able to resolve the dispute or bring about an end to the industrial action. It may be unrealistic, for example, to expect the Commission to play a role in overcoming a boycott which has an explicitly political basis, such as a ban in protest against aspects of Government policy.

I have quoted extensively from Senator Button's 1984 speech because this Bill is written in exactly the same terms and is put forward for the same reasons.

The only variation arises from the fact that the amendments are now to the Trade Practices Act and the Industrial Relations Act which has replaced the Conciliation and Arbitration Act.

The views expressed by the Government in 1984 are widely shared.

ACTU policy states:

Sections 45D and 45E of the Trade Practices Act prohibit a wide range of legitimate industrial action by unions, members and officials. They should be repealed at the earliest possible opportunity.

The Trade Practices Act is a totally unacceptable vehicle through which to attempt to regulate the legitimate industrial activities of trade unions. The Act should be used only for promoting free competition and fair trading by business enterprises.

The Section 45D actions that have been taken against unions clearly demonstrate that the Trade Practices Act is not merely useless in settling industrial disputes but is positively harmful. The special characteristics of industrial disputes demand that they be dealt with under industrial legislation and not by recourse to the Trade Practices Act.

The so-called conciliation procedures provided under the Industrial Relations Act in respect of Section 45D and 45E disputes are a sham. They are intended merely to facilitate the enforcement of those sections and do not provide a genuine opportunity for the industrial relations merits of a dispute to be examined and an acceptable resolution sought.

The ILO in a Direct Request to the Australian Government in 1991, relating to Convention No. 87, Freedom of Association and Protection of the Right to Organise, has had this to say:

In its 1989 direct request the Committee noted that Section 45D of the Trade Practices Act 1974, rendered unlawful a wide range of boycott activity and most, if not all, sympathy action. The Committee considers that both of these forms of industrial action should be permissible in certain circumstances. For example, it should be possible to impose boycotts in relation to health and safety disputes on construction sites where there are several different employers. It should be permissible for workers to have recourse to sympathetic action where the initial strike in respect of which such action is taken is itself a legitimate exercise of the right to strike. These considerations led the Committee to ask the Government to provide information as to the practical application of Section 45D and its associated provisions, and to indicate whether it had any plans to amend the 1974 Act so as to bring it into conformity with the requirements of the Convention.

The Committee remains of the view that Section 45D and its associated provisions render unlawful certain forms of industrial action which ought to be permissible. Accordingly, it calls upon the Government again to take steps to bring this legislation into full conformity with the requirements of the Convention.

The Trade Practices Commission itself, in its fourth Annual Report (1978) said:

The Commission would propose to limit court proceedings it might bring to cases affecting competition . . . because it is probably more appropriate that the right of private action or the Minister's right to bring proceedings should be exercised in cases not affecting competition. The Commission is a competition authority and it would seem desirable to avoid, where competition is not affected, getting involved in industrial disputes where the ultimate decisions as to the continuing or settling cases may need to be taken by companies on commercial grounds or the government on political grounds.

When first requested by the ILO to deal with the problem it saw posed by sections 45D and 45E of the Trade Practices Act, the Government responded by pointing out that its attempt to repeal the provisions in 1984 was defeated in the Senate where the Government did not have control. It also cited `strenuous opposition' by major employer groups and the Parliamentary Opposition.

At this point, late in 1992, the Government faces an entirely different situation. Because of a change in the policy of the Australian Democrats, the Government will now have no difficulty in gaining passage of repeal measures through the Senate. Another change is the distinctly turbulent industrial relations climate with the advent of conservative State Governments—especially the Kennett Government in Victoria—and the strong promotion of similar highly deregulated industrial relations policies by the Federal coalition. In this climate, it is surely more vital than ever that appropriate secondary boycott provisions are in place.

A further and very recent disturbing element is a decision in Western Australia against the BLF in which a ruling was given that the union had acted against section 45D in mounting a picket—in spite of that picket being entirely peaceful and that the union had instructed the union officials not to stop anyone from crossing the picket nor direct or request anyone not to cross.

In its conclusion the court said:

Contemporary usage of the term picket does carry implications of direction and threat of sanction to those who seek to enter a site or premises the subject of the picket. While the threat of sanction remains albeit unspoken the possibility of characterising the use of the picket as hindering or preventing of supply is also present.

Surely this judgement effectively denies the right to peacefully picket. Such a situation must not be tolerated.

In his conclusion to the debate in the Hawke Government amendments in 1984, Senator Button said:

The place for dealing with industrial disputes is not in the hands of the Trade Practices Commission. We have said that on numerous occasions and we will say it again in the course of dealing with this legislation. It is a matter which was in the Labor platform well before we came to Government. It has been a consistent position.

The consistency was not evident when, on 15 December 1992, I put the provisions of this Bill as amendments to an Industrial Relations Bill in the Senate and the Government failed to support them.

Instead the Government referred the amendments to the Senate Standing Committee on Employment, Education and Training inquiry on the effect of the operation of sections 45D and 45E of the Trade Practices Act 1974 on industrial relations in Australia. That inquiry was set up on 12 October 1992 on a motion of the Australian Democrats and has a reporting date of 31 May 1993.

Hence, we have the current situation in which the Australian Democrats, a party with a policy to repeal sections 45D and 45E of the Trade Practices Act, provided for the ALP Government, also with a policy of repeal, a vehicle which has been used by the Government to avoid the opportunity provided by my amendments to enact that very policy.

Also in his concluding speech in 1984, Senator Button claimed a `fundamental difference of attitude to the way in which industrial relations in this country should be handled'.

Given the Government's failure to repeal sections 45D and 45E on 16 December 1992, and the Democrats' provision of the escape route for the Government on that occasion, it is difficult to see that difference between any of the parties on this question.

I commend the Bill to the Senate.

  Debate (on motion by Senator Foreman) adjourned.