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Tuesday, 16 May 1972
Page: 2540

Mr WEBB (Stirling) - I rise to address myself to clause 13 of the Bill. This clause contains 14 proposed new sections and covers 12 pages of the Bill. In fact, it is the most vital clause in the Bill. All the machinery placing conciliation and arbitration in 2 separate compartments is contained in this clause. Under this clause the Government's wage freezing policy is actually implemented. The clause seeks to stop consent awards or agreements from being made without certification of the Full Bench. If we look at proposed new section 22 we see that it deals with powers with respect to conciliation to be exercised by the Conciliation Commissioners and powers in respect of arbitration to be exercised by presidential members and Arbitration Commissioners. This proposed new section has been inserted, we are assured, at the request of certain employers. It separates the principle of conciliation from the principle of arbitration. The flexibility that exists under the Act will disappear and the Act will become much more rigid as a result of this amendment. This Bill seeks to reverse what was an attempt to make conciliation the most important aim of the Act and I refer here, of course, to the 1969 amendments which laid stress on conciliation. At that point of time the Government had at long last accepted that the main objective of the Act should be to encourage conciliation with a view to amicable agreement. The system became much more flexible than it had been previously and the number of consent awards and agreements showed that it was working.

This Bill separates the processes. It breaks the line of communication. Under the existing Act an application is assigned to a commissioner or judge who proceeds to hold conferences or decides to begin a hearing. In many cases both processes are, combined. The judge or commissioner may take part in conferences if he considers this course desirable and he gets to know what are the real issues in dispute. The importance of this process lies in its flexibility. Under this amendment there will be no flexibility whatever. Once conciliation reaches a barrier that is the end of it. There is a cut off point. There is no going back to have another jump at the hurdle. It cuts off at that point and the matter goes to a commissioner or judge for arbitration. There is no further conference or thought of conciliation.

I refer honourable members to proposed new section 30. I do not want to quote all of it but it deals with conciliation and points out that: the Conciliation Commissioner shall report to the relevant Presidential Member as to the matters in dispute and the parties and the extent, if any, to which the dispute has been settled, but shall not disclose anything said or done in the conciliation proceedings concerning matters in dispute that remain unsettled.

What a stupid section to have in the Act. The arbitrator does not know how close the parties may have been to agreement on the points in dispute. Under the existing system he would know and could arbitrate more effectively having that knowledge. This Bill will mean that apart from the arbitrator not being able to know what has happened, the hearings will be lengthened. The aim of this amendment is clear. It is to stop the unions and employers from reaching agreement.

I refer now to proposed new section 31 which corresponds with section 33 of the Act. However, the proposed new section goes much further and means that matters such as hours of work, rates of pay where related to the national economy, minimum wage, equal pay, and annual or long service leave all have to be referred to the Full Bench. This is a backward step. It means that in these matters no longer will agreements or consent awards be accepted without intervention by the Full Bench. It is a step to try to prevent direct negotiation and will reduce the effectiveness of our arbitration system as we know it. Proposed new section 32 deals with bans clauses. Under this Bill the power to include or vary bans clauses in an award will be exercisable only by a presidential member. Under section 32 of the Act a commissioner could insert or refuse to insert a bans clause in an award. This was most important. It depended entirely on the merits of the case and the matters in dispute. If the Commissioner considered that the workers were wrong be inserted a bans clause. If he considered the employers were wrong he did not insert the bans clause. The new section gives exclusive power to presidential members and extends that power to the area of registered agreements. It means that a presidential member would have to insert a bans clause in an award. It is difficult to understand why jurisdiction over bans clauses, which are objectionable to the unions, should be the sole preserve of a presidential member. It appears clear that the rights and wrongs of a dispute will not be investigated now. Once a stopage of work takes place the emphasis will be on penalising the unions and the bans clause will be put into awards so that penalties may be imposed.

The 1969 amendment relating to the bans clause was to ensure that if a dispute occurred the merits of it were investigated before a fine was imposed. We on this side believe that the sanctions provisions should be repealed and I refer here, of course, to sections 109 and 111 which are the most offending sections in the Act. These sections have been responsible for creating more strikes than they have settled. Looking at this Bill one would think that the inflicting of penalties was an end in itself, but this ignores entirely the fact that the end is to settle industrial disputes as quickly as possible and not to extend them by inflicting severe penalties. What the Government is forgetting is that this is the Conciliation and Arbitration Act. 'Conciliation' comes first in the Act and 'conciliation' appearing before 'arbitration' in clearly significant. In his second reading speech the Minister for Labour and National Service (Mr Lynch) said:

Ft the parties can reach agreement they will be able to make a memorandum of their agreement and request the Conciliation Commissioner to certify that memorandum as an award, or, alternatively, request him to make an award or order giving effect to their agreement. The Conciliation Commissioner will be required to satisfy himself that the agreement reached by the parties is in the public interest. The provision, therefore, continues a like provision to that in the existing section 31 of the Act.

The existing Act provides for conciliators and commissioners but it does not say that the whole of the process of conciliation should be done exclusively by them. Section 31 provides for the likelihood that the parties to an industrial dispute may themselves arrive at an agreement to govern their industrial relations. This section does not say anything about the way in which they should do it. I refer to the Qantas dispute some years ago which was settled by an outside mediator. As I said in the debate on the second reading of this Bill, the Minister will find that the unions will not register agreements if there is a danger of the agreements being disallowed by appeal or otherwise.

Proposed new sections 34, 35 and emphasise public interest. These provisions are a carry over from existing section 31 (3.) which states, inter alia, that the arbitration authority may refuse to certify if it in of the opinion that 'it is not in the public interest that the agreement be certified'. Already today we have heard who is to define public interest. Time will not permit me to quote an interesting expression of opinion in a book called Better Employment Relations' by Foenander but possibly at a later stage I will get the opportunity. It states briefly that the authorities make no attempt to state broadly what they mean by 'public interest'.

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