Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Thursday, 31 July 1930

Senator DALY (South Australia) (Vice-President of the Executive Council) . - The honorable senator really emphasizes the point I was making when this matter was previously under discussion. I have tried to show honorable senators that the whole aim of these paragraphs which the Government now seeks to have omitted from section 60 are absolutely inconsistent with any known principle of British law. Assume that the North Queensland members of the Waterside Workers Federation commit a breach of the law. The federation itself embraces workers in every port in Australia, and the section gives the Registrar power to seek thg cancellation of the registration of the whole of the federation.

Senator Sir George Pearce - Power to cancel a branch was not given until the late Government amended the law.

Senator DALY - But the section gives the Registrar the right to have the corporate entity of the Waterside Workers

Federation destroyed. If the federation cannot discipline a section of its members why should all the other members of the federation be penalized?

Senator Sir George Pearce - If he cares to do so the Registrar may exclude the others.

Senator DALY - Leagues of nations may be established for the purpose of preventing war, but they cannot absolutely prevent it. Nor can organizations of workers absolutely prevent breaches of awards by sections. If honorable senators opposite carry the amendment, I hope that a consequential amendment will be made to sub-section 6 of section 60 to make it read -

Upon the cancellation of the registration of an organization the organization shall not cease to be an organization and a corporation under this act.

The Australian Workers Union is federation embracing unskilled workers in various callings. Its members probably work under 40 different awards which would go out of existence if this consequential amendment were not made, and men to whom Senator Reid referred - those who want to obey the law - would be penalized. The innocent would be punished with the guilty. I know of no other legislation that goes so far as the amendment made to the principal act some years ago, which punishes innocent people for what the legislature has deliberately set out as breaches of the law by others. On the cancellation of the registration of an organization, it becomes a voluntary association. Those who are acquainted with company law know what that means. The organization loses its corporate entity. Honorable senators would not suggest the deregistration of another corporate entity, such as an insurance company, because its agents have been found guilty of misrepresentation or have committed flagrant breaches of the law in that regard; then on what logical ground can they justify their proposal to destroy the corporate entity of a trade organization because of a breach of an award by some section of it? I can understand the majority suffering disadvantages because a minority has brought about a breach of contract, a condition precedent to the establishment of which contract being the requirement that the whole of the parties should abide by it. I can understand the argument that if some have broken away from the contract it should cease. But I cannot appreciate any justification for departing so far from the principles of British justice as to suggest that all the members of an organization should be penalized, as proposed by honorable senators opposite. If, however, they succeed in retaining paragraphs j k, andl, I trust that they will agree to a consequential amendment of section 60 in order to protect the property of organizations and maintain awards applying to those sections of the organizations which are not, directly or indirectly, concerned in the particular matter in dispute.

Senator Sir GEORGEPEARCE (Westr ern Australia) [12.11]. - If the arguments which Senator Daly has now advanced are the reasons which actuated the Government in proposing to alter the law by the removal of paragraphs j, k, andl from sub-section 1 of section 60, which relates to applications for cancellation of the registration of organizations, I submit, with all due respect, that the Government has acted under an entire misapprehension of the meaning of these paragraphs. They were inserted by the previous Government for a very good reason. Previously, the act dealt with organizations as a whole, and most of the federal organizations are federations with federal councils and federal rules; but they also have State branches and even sub-branches within the States. The rules of a federation certainly apply to the whole organization, and it was found that no cause of action would lie against the organization on the ground that its rules did not comply with the law, but that the rules of the branches, which they had power to make, could be drawn up in defiance of what was laid down in awards made by the Arbitration Court, and often in direct opposition to those awards.

Senator Daly - Why not punish the branch and not the organization?

Senator Sir GEORGE PEARCE - That is exactly what these provisions were intended to do. Two outstanding instances showed the need for them. They both occurred in connexion with maritime industries. The Seamen's Union, and the Waterside Workers Federation, are both corporate unions with branches. Senators Reid and H. E. Elliott have told us that these branches have local rules in defiance of, and in opposition to, what is laid down in awards of the Arbitration Court. It is within the power of each federation to discipline its branches. It can expel a branch and declare that it has ceased to be a branch, if it does not conform with what is laid down by the federation itself.

Senator Daly - It is nonsense for the right honorable senator to say that an organization can expel a branch. A man is not a member of the branch; he is a member of the federation.

Senator Sir GEORGE PEARCE - The Fremantle waterside worker may be a member of the federation, but he is also a member of the Western Australian branch of the federation.

Senator Daly - Then the High Court is wrong in saying that he is a member of the federation.

Senator Sir GEORGEPEARCE.He is a member of the federation, but, in actual fact, according to the rules of the federation, he is a member of a branch. On many occasions, as Senator Barnes will be able to tell the Leader of the Senate, the Australian Workers Union has been obliged to discipline its branches. I remember also what happened when the Waterside Workers Federation approached the Arbitration Court a year or two ago. When attention was directed to the fact that the local rules of its branches were made in defiance of an award of the court, the court immediately required the federation to give an undertaking that it would make its branches conform to the law. Unless these provisions are retained, the executives of organizations such as the Australian Workers Union and the Waterside Workers Federation will be powerless. Local branches may adopt rules which will be in complete defiance of the awards of the court. These paragraphs were inserted designedly; they were intended to compel branches, as well as industrial federations, to conform to the law. If my amendment is carried, there will be no need to insert in sub-section 6 the safeguard suggested by the Leader of the Senate. Sub-section 1a reads - -

Where the ground of the application is ' a defect in the rules of the organization, the court may, if in its discretion it thinks fit, instead of ordering the registration of the organization . to be cancelled in the first instance direct the organization within a specified time to alter its rules so as to bring them into conformity with the requirements of the act; and if at the expiration of the time specified the rules have not been altered accordingly, the court may then order the registration of the organization to' be can- . cancelled, and it shall be cancelled accordingly.

If a branch of an organization adopts rules which are in defiance of an award of the court, the court may give the executive a specified time, perhaps a fortnight or a month, within which to compel the branch in question to so alter its rules as to bring them into conformity with the order or award of the court. If at the expiration of that period the rules are not altered accordingly, the court may then proceed to cancel the registration of the union. No one can suggest that it is unjust to require any organization to conform to the law of the land.

Senator Daly - The .right honorable senator is arguing that if an industrial federation does not order a branch to alter its rules its registration should be cancelled.

Senator Sir GEORGEPEARCE.No, because it has power to expel a branch which disobeys its instructions.

Senator Daly - It has not.

Senator Sir GEORGEPEARCE.If the honorable senator will study the rules of the Waterside Workers Federation, he will find that that organization has full power to expel any branch that disobeys awards of the court.

Senator Daly - If an organization does expel a branch, it does not expel members of that branch from membership of the federation.

Senator Sir GEORGEPEARCE.By the act of expulsion, an organization such as the Australian Workers Union would declare that the branch ceased to exist. Under paragraph k, cancellation may be ordered if it appears to the court -

That the members or a substantial number of the members of an organization or branch have repeatedly or systematically committed offences against this act, or failed to comply with an order or award.

In such an event, the provisions of subsection1a would operate. In recent years, there have been numerous occasions when members of a particular organization have acted in defiance of awards of the court. In some instances, partial strikes have occurred. In every case, the court has declined to proceed with the making of an award until the branches or members concerned were disciplined. I well remember the case of the Waterside Workers Federation. The executive of that body had an application before the court in connexion with an industrial dispute, and when the representative of the employers pointed out that certain members of the federation were acting in defiance of an award of the court, the judge not only refrained from dealing with the application, but called upon the executive to discipline the members concerned, otherwise he would consider taking action against the executive itself. The rules of every union give to the executive power to discipline members, and the rules of every federation contain provisions empowering the federation to discipline its branches.

Suggest corrections