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Thursday, 11 May 1972
Page: 2516


Mr Clyde Cameron (HINDMARSH, SOUTH AUSTRALIA) (12:44 PM) - I am glad to be able to tell my colleagues who have been fighting the good fight tonight that as soon as I finish my 10 minutes the Committee will report progress and we can go home. I would not mind going home now. Clause 13 contains 14 sections. This is the most critical clause of the Bill. This is the clause that separates conciliation from arbitration. This is the clause that has all the machinery for disciplining the Conciliation and Arbitration Commission to see that it does not break away from the Government's policy of a wage freeze. This is the clause that gives to the Government the right to intervene in all appeal eases. This is the clause that provides that no agreement can be signed without the certification of the Full Bench if the agreement contains clauses that deal with wages. This is the clause that stops consent awards from being made without certification or approval of the Full Bench. If we look at the clause in toto, we are rooking at a clause that is blatantly designed to freeze wages. For the Minister to talk about freezing the wages of the Conciliation Commissioners at their present rate of $1 1,850 a year and to bring in a Bill that proposes to freeze the wages of the workers at $51.80 a week is to me a disgrace.

Let me go through this bit by bit, if I may, to show honourable members how this scheme unfolds. New section 23 provides that from now on industries will be given over to a panel of commissioners. The panel will consist of a conciliation commissioner, an arbitration commissioner and a presidential member. It will decide the wages and conditions of given industries. The claims of certain industries may be heard by a panel consisting of more than one conciliation commissioner, one arbitration commissioner and one presidential member but the important thing is that no panel will be able to operate unless it is constantly under the jurisdiction and influence of the presidential member and in turn the presidential member in many cases will be a member of the Full Bench which determines the decisions that are designed to prevent any increases in wages or increased benefits of any kind. If the Opposition had had an opportunity to move amendments to this Bill, I think I would recommend to my Party that it insist upon the reinsertion of section 26 of the old Act.

I move now to proposed section 25 (1.) and (2.). If I were in a position to recommend to my Party consideration of amendments, I would recommend that we delete the words 'presidential member' and insert in their place the word 'commissioner' so that these decisions can be taken by commissioners instead of by presidential members. It is necessary also in section 25 of the new Act to have deleted proposed subsections (3.), (4.) and (5.). I believe that new sections 26 and 27 should have been deleted. In the case of proposed section 28, let me draw the attention of the Committee to one significant change. New subsection (2.), which deals with the question of certifying agreements and consent awards, provides:

A Conciliation Commissioner shall-

It is mandatory; the word should be may' - refuse to certify a memorandum or make an award or order in accordince with this section if he is of the opinion that -

(c)   it is not in the public interest that he should certify the memorandum or make the award or order.

The public interest is not defined except in a very vague and passing way to mean the national economy. Look again at the verbiage used. The Commissioner shall refuse to certify it if he is of opinion that the agreement or consent award is not in the public interest.

Supposing a union decided to appeal to the Full Bench against his refusal to certify. How could such an appeal possibly succeed when the section requires the commissioner to make a purely subjective test, not an objective test? The commissioner merely has to say: 'That was my opinion and all the Act required me to do was to act upon my opinion, and it is my opinion that it is contrary to the public interest'. The matter then has to go to the Full Bench which could very well adopt a legal position. I might very well say: 'We are of the opinion that the decision taken by the conciliation commissioner cannot be altered because it was based upon a subjective test with which we have no subjective powers to interfere'. On the other hand, the Full Bench might say: 'Yes, we will supplant your subjective test of what is in the public interest with our own subjective test*. What would happen if somebody went to the High Court? If I know anything about the 160-odd decisions which the judges of the High Court have given so far in respect of placitum (xxxv) of section 51 of the Constitution, I would be very surprised if the judges of the High Court did not adopt a purely technical and legalistic attitude towards the question and say that once the Act empowered a commissioner to take a subjective test as to what was in the public interest, it would not be within the competence of some other body to superimpose, supplant or substitute that primary subjective test with a second one. This Bill is drawn in this loose, reckless and careless fashion, indicating quite clearly that the Minister has not given to the Bill the attention which he should have given to it.

I refer to proposed new section 28 (3.) which states:

A memorandum certified in accordance with this section has the same effect as ... an award . . .

If one looks at another part of the Conciliation and Arbitration Act one finds that an award continues ad infinitum unless it is either rescinded by the Commission or cancelled by agreement of all the parties. Therefore, this proposed new section 28 (3.) has the effect of continuing the present vice of the existing Act which says that once parties enter into an industrial agreement for a stated duration, the agreement immediately assumes perpetuity and it cannot be cancelled at the end of the stated period, as one would think it automatically could be. This cannot happen. An agreement can be set to one side only by the order of the Commission or with the approval of all the parties to the agreement. This is one of the reasons why the system of collective bargaining has broken down. This is why people who look at the existing system of settling industrial disputes by making industrial agreements have not got much sympathy for the concept of settling industrial disputes by making industrial agreements in future.

What we ought to make clear in the Ac - and this is an opportunity to do so - i that when a person makes an industrial agreement, that agreement shall operate only for the stated period of the agreement Proposed new section 28 (3.) says, in effect that you are not allowed to include any thing in an industrial agreement that is contrary to the provisions of the Constitution. What the devil does it matter whether the parties to a dispute decide to put into the terms of an agreement something which could not be put into an award?

The DEPUTY CHAIRMAN (Mr Drury) - Order! The honourable member's time has expired.

Progress reported.







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