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Tuesday, 16 May 1972
Page: 2543

Dr KLUGMAN (Prospect) - In addressing myself to proposed new section 22 I will of course deal also with the separation of the functions of conciliation and arbitration. I think I could do no better than to read some extracts from an article written by Mr J. B. Sweeney, Q.C., which appeared in the 'Sunday Australian' of 30th April this year. Mr Sweeney prefaced his remarks - I think we would all share this belief - by saying:

Most of us know there is no universal panacea and no perfect solution for industrial unrest or the problems of wage fixation. We want a system of industrial regulation which will ensure better material standards for most people.

We prefer these better standards to be reached with as little dislocation, hardship and loss as possible. So one must judge Mr Lynch's new arbitration proposals against this background. Will they make for better industrial relations, reduce strikes, increase productivity? I think not.

Later in the article, Mr Sweeney made the point that:

Probably most important and unfortunate are the proposals to separate conciliation and arbitration.

At present when an application come* before the commission it is assigned to a commissioner or judge who proceeds to hold conferences or may decide to begin a hearing. He may, and very often will, combine the two processes by suggesting conferences at an appropriate time, and by taking part in them himself if desirable. He may make suggestions or express tentative views. Tha system is flexible and is working, as is shown by the increasing number of consent award* .Hid agreements.

Under the bill, this will be changed. A claim will first go to a conciliation commissioner who will hold conferences.

When he is satisfied that conciliation can get no further, the case goes to an arbitration commissioner or judge for arbitration. His function is purely arbitration. He probably should not even use a conciliator}' tone of voice.

This rigid division is contrary to common sense.

May I say that I completely agree that it seems quite ridiculous to have such a rigid division. Mr Sweeney continued:

The personality of the arbitrator plays an imporant part in the settlement of cases. At some point each party will ask: Will we do better it we fight the case? If the arbitrator is present, parties will be less ready to adopt unreasonable attitudes in negotiation.

The new system is less flexible and will lengthen hearings. It has no counterpart in modern arbitration systems, and has nothing to recommend it.

Allied with it is the task force system under which an industry or group of industries is to be assigned to a group consisting of a judge, .in arbitration commissioner and a conciliation commissioner. The presidential member (judge) is presumably to co-ordinate the work of the group. At present each commissioner is assigned an industry or group ot industries and a feature of the commission is the pride a good commissioner takes in the industrial record of his industry. I think this system should continue. It allows greater flexibility and differences of approach than the new.

I think it is important to note that Mr Sweeney has had some 20-odd years of experience in conciliation and arbitration matters. He understands the point of view at least of the unions and because of the number of times he has appeared against employers he probaby also understands the point of view of the employers and their representatives. It seems quite clear to me that the more formalistic or legalistic you make a system, or the more legal conditions or restraints you impose on the people, whether they be conciliation commissioners or arbitration commissioners, the worse it is from the point of view of the Act.

It may well be that there should be some way - and there is provision for it in the present Act - in which the President can decide that a particular case should be. dealt with by a different arbitrator, once conciliation has failed, because the conciliator has become too involved in that case. I can see no possible reason why, when it comes to the final stage at which somebody has to make a decision in a conciliation case, a person who has been involved in that case should be excluded from being able to make that decision, and the whole argument has to be gone over again.

As honourable members are no doubt aware, it is quite clear in this Act that any admissions, or whatever you like to call them, which have been made before the conciliation commissioner cannot be used during the arbitration proceedings. I think this is wrong, if for no other reason than that we are putting very strict legal constraints or restrictions on the people who we feel ought to be able to act as conciliators and arbitrators. If, during conciliation meetings, the unions feel that they have persuaded the conciliation commissioner on a point of some relevance that there is something to their case and that their members in fact will strike if they cannot get some particular concessions, it is ridiculous if none of this evidence can be put to the arbitration commissioner and if the arbitration commissioner who finally makes the decision is a completely different person from the conciliation commissioner who originally heard the matter. It seems self evident to me. I find it difficult to see why the Minister in fact has insisted on this separation of functions.

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