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Tuesday, 16 May 1972
Page: 2549

Mr CLYDE CAMERON (HINDMARSH, SOUTH AUSTRALIA) - Proposed new section 28 is one of the most obnoxious sections in the clause and we will have to divide the Committee on it. This section prohibits the certification of an agreement or the making of a consent award where the agreement or the award includes provisions that effect standard hours, the minimum wage, female rates or any question of annual leave or long service leave with pay. This proposed section will put an end to all certified agreements. No union and few employers will bother to certify agreements or register agreements when they discover that before this can be done the whole agreement, having been hammered out by negotiation and conciliation between the parties, must go before the Full Bench of the Commission for approval. Under the Act as it now stands the Commonwealth will have the right as intervener to be represented by counsel at the hearing before the Full Bench to give reasons why an agreement ought not be certified, and the Commonwealth will do it. The Minister suggested in his second reading speech that the Government had given up the idea of giving itself the right of appeal against agreements and consent awards. The Government has done it in another way; a more subtle and more crafty device has been discovered to achieve the same end.

The proposed section provides that an agreement or consent award touching upon the minimum wage, the national wage, equal pay for the sexes or any question of annual leave or long service leave must be certified by the Full Bench. When the Full Bench proceeds to certify the proposed agreement or consent award the Commonwealth will move in as intervenor and use public funds to prevent the certification or registration of the agreement or the makins of the consent award. If there is anything better designed to throw a spanner into the works of industrial understanding I should like to know what it is. If one looks at the proposed new section 28 one sees in sub-section (2.) this mandatory provision:

A Conciliation Commissioner shall refuse to certify a memorandum or make an award or order in accordance with this section if he is of the opinion that -

(a)   the terms are not in settlement of an industrial dispute;

(b)   any of the terms is a term that the Commission does not have power to include in an award; or

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

I have taken the trouble to look up the ruling of the Industrial Court in the case Cameron v. AWU, reported in 1959 in the econd volume of the Federal Law Reports. From that judgment one sees clearly stated by the majority decision of Mr Justice

Dunphy and Mr Justice Morgan, with the Chief Justice dissenting, that a rule of the union that gives a union executive power to expel a member for misconduct, when the executive is merely of the opinion that the person is guilty of misconduct, is an invalid rule because it is too vague, imprecise and uncertain as to its meaning, and therefore must be struck down and removed from the union rule book. If that set of principles, deemed to be invalid for the purpose of union rule, is now to be enshrined as part of the statute, what a mockery that makes of the decision of the Industrial Court in Cameron v. AWU.

Let us look at paragraph (b) of subsection (2.) which reads:

Any of the terms is a term that the Commission does not have power to include in an award.

That is nonsense. 1 know all about the High Court ruling. The Government ought to recognise that some agreements might provide for things like seniority, absolute preference or preference for financial members of unions. procedures dealing with reinstatements, changes in techniques - all of them held by the High Court to be matters touching upon managerial prerogatives. I know all of this but one of the things we must learn in the 1970s is that the sacred thing called managerial prerogative cannot be treated as sacred any longer and notwithstanding the decisions of the High Court the time is coming when modern technology demands changes in techniques and alterations in procedures. No longer is it possible to leave all these decisions entirely to management. If the parties can reach agreement as to how they will operate, it is nonsense to say that it cannot be put into an agreement merely because it incorporates something which the Commission itself could not put there. The only body likely to object to an agreement of this nature is the Commonwealth Government and if the Government does seek to set aside an agreement which simply gives effect to an agreement reached between the parties as to techniques and operating procedures inside a factory, the Government ought to go out on its head. I can see no reason at all why these things should not be permitted in an agreement.

Another matter I should like to mention in relation to proposed ne.w section 28 (2.) is that it provides that a Commissioner shall refuse to certify a memorandum or to make an award. 'Shall' ought to be 'may'. He should be given a discretion.

I turn to proposed new section 31, which is really the nitty gritty of the clause. This proposed new section enables the Government to bring about its wage freezing policy, because it provides that the power of the Commission to make an award or to certify an agreement for, or altering, the standard hours of work, minimum wages, female rates or annual leave is exercisable only by a full bench, during which proceedings the Commonwealth itself can intervene to put its case for wage freezing. The Commonwealth has made it clear that it is very sorry to know that the waterside workers and the stevedoring companies have been able to settle their differences instead of having a nation-wide stoppage. They settled their differences by the shipping companies giving increased wages, against which under this proposed new section the Government could have intervened. I do not know where the Government thinks it is going. It calls for increased productivity. When the waterside workers and the miners double their productivity and get an agreement from the employers which recognises that fact, this Government wants to step in and prevent the agreement being put into force. I say no more about the matter at this stage because I think the honourable member for Cunningham (Mr Connor) will deal with this at length, but I say that we oppose these provisions of the Bill and will divide the Committee.

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