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Thursday, 16 December 1993
Page: 4838

Senator GARETH EVANS —In question time yesterday, Senator Crane asked me as Minister representing the Prime Minister a question without notice about the secondary boycott provisions of the Industrial Relations Reform Bill 1993. I undertook to provide further advice on that matter. I seek leave to have that reply incorporated in Hansard.

  Leave granted.

  The answer read as follows

The Prime Minister has provided the following answer to the honourable senator's question:

In his question Senator Crane expressed concern that it would be possible, in some circumstances, for a secondary boycott on the export of live sheep to come within an exemption under proposed section 162 of the Industrial Relations Act 1988.

The Senator suggested that this would "force farmers to go back to the wharves and load live sheep to protect their livelihood and their markets."

If a secondary boycott on the export of live sheep were to occur for industrial purposes, it could be prohibited by proposed section 162. This would apply if the boycott had, as an immediate and substantial purpose, the causing of substantial loss or damage to the business of the target of the boycott and if the boycott had, or was likely to have, that effect.

While section 162 prohibits secondary boycott action, certain exemptions from the prohibition are provided for under section 162. This does not, however, affect the application of common law actions in tort. Accordingly, a secondary boycott which obstructed the export of live sheep and which came within an exemption could still be the subject of such a common law action.

If the boycott involved a federally registered trade union, and such a common law action was proposed, then, under proposed section 166A, there would be up to 72 hours of pre-litigation conciliation by the Australian Industrial Relations Commission before the action could be brought. This is the maximum period of pre-litigation conciliation. The period ceases immediately if the Commission is satisfied that it cannot stop the relevant conduct promptly or if the Commission decides that it would cause substantial injustice not to permit the legal action to be brought before the expiry of the pre-litigation period.

Section 166A does not apply where the relevant conduct involves personal injury or wilful or reckless harm to property or its unlawful use. Similarly, section 166A does not apply to a demarcation dispute or a claim for strike pay.

There is no reason why, in the example given by Senator Crane, farmers would need to resort to any action apart from following proper processes before an industrial tribunal or, if it were necessary, before a court for a legal remedy. It would be regrettable if farmers or anyone else in the community were given the impression that any other steps were necessary or appropriate.