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Tuesday, 1 November 1983
Page: 2128

Mr RUDDOCK(8.07) —The three Bills to be discussed in this cognate debate relate to the management of the Commonwealth Public Service. Shortly stated, the purpose of the Public Service and Statutory Authorities Amendment Bill, is to repeal the no work as directed no pay provisions in certain Commonwealth legislation; that is, the Public Service Act 1922, the Commonwealth Banks Act 1972, the Commonwealth Teaching Service Act 1972, the Overseas Telecommunications Act 1946, the Postal Services Act 1975 and the Telecommunications Act 1975. The no work as directed no pay provisions were inserted in each of these Acts in 1980 to enable the Commonwealth and its authorities to withhold pay from employees refusing to work as directed; in other words, refusing to work in accordance with proper instructions from their employer, the Government. The Government wants to abolish this procedure. The Bill will also recognise for superannuation purposes periods of absence by employees who were suspended under the no work as directed no pay provisions. That period of suspension will be treated as leave of absence without pay. In other words, the Bill will restore superannuation benefit entitlements to employees for a period in which they were previously suspended, which entitlements they may otherwise have lost.

The Commonwealth Employees (Employment Provisions) Repeal Bill simply repeals legislation enacted in 1977 by the former Government to provide, where there had been a ministerial direction, for the direct suspension or dismissal of Commonwealth employees engaged in industrial action or the direct standing down of Commonwealth employees affected by industrial action. This legislation was seen by the former Government as being used only in extreme cases where the public interest demanded in an essential area of government activity, urgent action to assist in bringing about the resolution of a dispute. The Commonwealth Employees (Redeployment and Retirement) Bill seeks to repeal sections of the principal Act inserted in 1981 to preclude the operation of any award made by the Public Service Arbitrator or the Conciliation and Arbitration Commission which sought to modify or alter the impact of the Commonwealth Employees ( Redeployment and Retirement) Act. In other words, it was to ensure that arbiters could not override the term of a statute passed by this Parliament, to ensure that the intention of the Government and the Parliament was left in place.

Mr Deputy Speaker, it will perhaps come as no surprise to you that the Opposition is opposed to all three Bills. We will accordingly vote against each of them. Before discussing each of these Bills let me make some general observations. In the industrial relations area generally in the last decade or so there have been significant changes in techniques used by unions in industrial disputes. The bargaining position, which was clearly in the hands of the employers in the last century, has progressively moved. On balance, employees in the work force are significantly advantaged today in negotiating with employers. Lest it be thought that I alone think that, let me quote what a nurses' union representative said in speaking on an Australian Broadcasting Corporation program this morning. The representative was talking about the removal of the no strike provision from the union's constitution. That representative said that that proposal-that is, the removal of the no strike provision from the union's constitution-was being advanced to give the union a stronger negotiating base. That is the way in which these matters are seen by those in the industrial field. It is a matter of the position from which people can work in an industrial dispute to achieve their objective. That position ought not necessarily be accepted in the public interest.

Further, with so much automation, key employees need only to be removed from particular facets of the work place today to bring effectively the business of an entrepreneur or public administration to a halt. We have seen many examples of that. No longer does the old adage 'one out, all out' have any force or effect. I think everybody in the community is very much aware of that today. All too often we see situations where employers, be they public or private employers , are denied income or productive effort while the great majority of those employed continue to draw their emoluments. In such circumstances few, if any, employers-I include government-can resist claims made no matter, in many cases, how outrageous the claim. Those in employment have been significantly advanced at the expense of those out of work.

Increasingly we have seen in the areas of both public and private employment an unwillingness to abide by a conciliation and arbitration system. As a result the consequence has been disruption of the community and damage to the economy. The willingness of unions, particularly in the public sector-even unions that have traditionally not brought industrial action-to bring industrial action is of concern. My reference to the ABC program which took place today in which the nurses' representative was seeking to have withdrawn from the union's constitution the provision that members shall not strike is an indication of that. Less and less the strike is being seen as the weapon of last resort and, rather, the first resort. I shall later give some examples, particularly in the public sector area.

It is the Opposition's view that in the area of Public Service the withdrawal of labour is not an industrial tactic legitimately open to public servants. Public servants are in a special situation because they are paid from general revenue or in the case of those employees of statutory authorities the revenue of a statutory authority is often obtained in a monopoly situation. Commonwealth employees are employed to serve the government of the day. If the Commonwealth cannot rely upon its servants to be available to work as directed community confidence in the operations of government will wane and relationships between permanent officers and those elected by the people, and the people themselves, will be seriously damaged. Many of the services provided by the Commonwealth reach right into the fabric of our society.

For instance, communications-the Minister for Communications (Mr Duffy) was formerly sitting at the table-be they postal or telephonic, go to the very basis of our society. Yet we have seen many industrial disputes in that area where this legislation, which is being repealed, has been effective. Payment of social service benefits is equally a matter that goes right to some of the fundamentals of our society-the income assurance for the elderly and the needy. Yet we see all too often in industrial situations that those benefits that ought to be available are not available as a consequence of the industrial action taken. Transport by air is equally essential. Yet all too often it is disrupted. Each of these areas of government activity are essential for our national well-being. Yet all too easily strike and industrial action bring those services to a halt. The Government has a responsibility for setting an example in industrial relations. I accept that. If the Commonwealth is a pace-setter with its staff in the industrial relations area how can private employers resist unreasonable union demands and if governments do not maintain all powers at their disposal which are available to them to resist unreasonable demands.

I see those as being the key general points applicable in relation to each of these pieces of legislation. Furthermore, I think it needs to be understood that private sector employees are involved in a privileged position as a result of their permanency, pay rates, hours, holiday arrangements and superannuation entitlements. There has been increasing public comment in that latter area. As a consequence, it is my view that they should not have the same industrial muscle in industrial disputes as have less permanent employees in the private sector. The Government should accept responsibility for matters concerning its employees . The responsibility, in some cases, cannot be delegated to third parties such as industrial tribunals which are not responsible to the electorate, as is the case with these three Bills. The Government by using the powers available to it under the existing legislation could have speeded up the resolution of recent disputes in the private sector. Once threatened with automatic suspension, postal workers who placed bans on overtime would have quickly returned to performing their proper duties in the Australian Capital Territory. All that is required in such disputes is for the Government to demonstrate its determination not to cave in.

I want to mention the recent disputes because they serve as a continuing reminder to everyone that notwithstanding the Government's claim that it is closer to the trade union movement and its indication that it was prepared to repeal this legislation-that indication was given very early in the piece to the trade unions; it was a commitment upon which they were relying and which the Government seeks to meet-we saw a situation in the national capital that for four weeks Canberra and Canberra people were severely disadvantaged by a mail strike. That strike hurt pensioners who were not able to get their cheques in some cases. It hurt people who were receiving superannuation entitlements from other States and were relying upon the mail. It stultified business operations in Canberra and it hampered government activity as well, although perhaps I should put some questions on the Notice Paper to find out the cost of all those extra couriers to government and to the Australian people as a result of the arrangements that needed to be put in place to ensure that government activity was not brought to a halt. The cost was very considerable.

The strike went well beyond any reasonable period. I and the people of Canberra complained continually that there was a need for the Government in the national capital-the only place in Australia where the Commonwealth Government has total responsibility for industrial relations-to move resolutely to solve an industrial dispute. It was an absurd dispute-I think I heard that word come from the other side of the chamber-because the matters involved were really of very little moment. Most people could hardly remember what they were. Yet bans were put in place to ensure that mail did not reach the people of Canberra. Government Ministers seemed impotent-in fact they seemed unwilling-until pressed to comment on this very disastrous situation. Yet, at the same time, we saw that in relation to pilots-apparently they are somewhat different-the same Government was prepared to use threats of dismissals, stand-downs and the like and to talk very strongly about getting the matter resolved after two days. I do not know what provisions the Government was going to use for its stand-downs or dismissal arrangements, although an indication was given that it was not intending to use the legislation in relation to Commonwealth employees which it is seeking to repeal.

In my view, if very early in the piece in relation to the Canberra mail strike the Government had been prepared to use the no work as directed-no pay provisions when the bans were first put in place, that may have very well brought the matter to a head very quickly and ensured settlement of this dispute . If the matter had gone on it may very well have been that the provisions in the Commonwealth Employees (Employment Provisions) Act could have been used and as was the case with other industrial disputes in the experience of the previous Government, I am sure that a resolution of that dispute would have been found very quickly. It is a fact that these sorts of industrial disputes, notwithstanding the Government's special relationship with the trade union movement--

Mr Spender —What special relationship?

Mr RUDDOCK —The special relationship that the Government claims it has. Notwithstanding that special relationship, we know that industrial disputes are still going on in the Public Service. They are significant and they hurt the community at large. That point needs to be made over and over again because the repeal of the first two Bills I have mentioned-the Public Service and Statutory Authorities Amendment Bill and the Commonwealth Employees (Employment Provisions ) Repeal Bill-will remove from the Government armoury very effective provisions to assist in the resolution of industrial disputes.

I do not say that those provisions ought to be availed of all the time. The previous Government when it introduced this legislation saw it being used only in a situation of last resort.

For some time the Commonwealth Employees (Employment Provisions) Repeal Bill was not proclaimed. It was put aside and left, as it were, as a weapon in the Government's armoury that might be used in a very difficult industrial situation . The ability to stand down automatically employees who cannot be usefully employed, as a result of industrial action taken by other people will bring and has been shown to bring pressure on striking trade unionists to end their strikes as the cost of their action becomes more readily apparent. They will also be the subject of pressure from other trade unionists to cease industrial action. Indeed, it is only fair that the Government, as an employer, should not have to pay the wages of workers who cannot be gainfully employed as a result of industrial action by other workers.

The effect of this legislation will be to ensure that the Government is in a position where it has to make significant payments unless it goes through a long and convoluted procedure to have people stood down by way of an approach to an industrial tribunal.

I said that I would direct some comments to each particular Bill. The first is the Public Service and Statutory Authorities Amendment Bill 1983. The provisions in the Act which the Government is seeking to remove were inserted in 1980, following a New South Wales Supreme Court decision which found that the common law rights of employers to implement the no work as directed-no pay principle no longer applied in the area of Commonwealth employment. That case was referred to as Bennett's case and was addressed by the Minister for Employment and Industrial Relations (Mr Willis) in his second reading speech. The Court ruled that the common law principle was overruled by the provisions of the Public Service Act and regulations. A former colleague of mine, Mr Viner, as the Minister Assisting the Prime Minister for Public Service Matters, had this to say when introducing the Public Service and Statutory Authorities Amendment Bill in 1980:

It is an established principle at common law that an employer has an obligation to pay wages to his employees so long as the employment relationship continues. On the other hand a right to wages at common law is contingent upon an employee obeying the lawful directions of his employers, and being ready, willing and available to perform all of his duties as directed. Therefore, where an employee does not fulfil those obligations the employer is not obliged to pay wages. The Government is firmly of the view that this basic contractual principle, commonly known as the no work as directed-no pay principle, should apply to Commonwealth employees.

The Opposition is of the view that that should still be the case, and it is for this reason that it is resisting the repeal of this legislation. The pertinent provisions of the Acts currently enable the Public Service Board and the various authorities to declare that staff who fail to comply with an authorised direction relating to the performance of their duties are not to be paid salary, regardless of any award provisions to the contrary.

The provisions in the 1980 Bill, as I have mentioned, were supported very much by the then Government, of which I was a member. A number of reasons were advanced for the introduction of that legislation and I will recapitulate those reasons for the benefit of honourable members. The first point, which I have already made, is that a right to wages at common law is contingent on an employee obeying a lawful direction of an employer and being ready, able and willing to perform all duties as directed. Secondly, the basic contractual principle, the no work as directed-no pay principle, should apply to Commonwealth employees. Thirdly, in recent times the nature of industrial action within the Public Service has changed. Employees have increasingly sought to escape the consequence of their actions while imposing inconvenience and hardship on others and by taking what they see as astute, selective industrial action in the form of work bans and limitations while expecting to remain on full pay and to enjoy all the privileges of employment in the Australian Public Service. Fourthly, it is not appropriate that the public should bear the cost of employing persons who are not prepared to provide the public services for which they are engaged. Finally, employees do not have an absolute right to wages. The rights are correlative to duties and the existence of an employee's right presupposes the fulfilment of the employee's duties and obligations.

It should be understood that this legislation is being introduced but not with the support of the Government's own independent adviser, the Public Service Board. On page 57 of the Public Service Board's report for 1982-83, these comments are made in relation to no work as directed no pay:

The availability of this provision in these limited circumstances has proved to be effective in the Board's view both as a deterrent and in resolving disputes. The Board considers the 'no work as directed-no pay' provisions should remain available to management and has expressed that view to the Government.

That is the advice that the Government has received in this matter from its own independent advisers, and I think that needs to be understood. As to the Commonwealth Employees (Employment Provisions) Repeal Bill, in case the Minister for Employment and Industrial Relations makes the point, perhaps I should say that in this case he does have some support from his adviser, the Public Service Board. That will be revealed on the same page of its report. I want to indicate the nature of that legislation and the particular purposes for which the Commonwealth Employees (Employment Provisions) Act was first introduced in 1977. It was introduced in response to a number of industrial disputes in the Commonwealth Public Service area, and in particular the air traffic controllers strike, which was very disruptive, as honourable members will recall, and a disruptive postal dispute centered on the Redfern Mail Exchange, where employees were on strike over the 36 3/4 hour week for all postal employees.

The then Government introduced the Commonwealth Employees (Employment Provisions) Act to enable the Commonwealth Government directly to suspend or dismiss Commonwealth employees who take industrial action which disrupts the provision of services to the community and to stand down without pay Commonwealth employees who cannot be usefully employed because of industrial action by other workers in the public and private sectors. The Act enabled the Government to act rapidly and decisively in an emergency without having to go through the procedures of applying to the Australian Conciliation and Arbitration Commission for the insertion of a stand down clause in the relevant award, with all the delay that that might bring about and all the dislocation that it might permit to go on unabated. At the time of its introduction the Government said that it was its hope that it would not be necessary to use this legislation and that its provisions would be used only in the gravest circumstances. Thus, the Act was not proclaimed until 1979, when it was used in the Telecom Australia dispute. Lest it be thought that there were a significant number of cases in which this legislation was used, I inform honourable members that it was used in nine cases. Particulars were given by Mr Fife in answer to a question on 8 December 1982 in relation to each of the occasions on which this particular legislation was used. I think that in the period during which it was operating there would have been of the order of two or three strikes per year in which it was found necessary to use these particular provisions, although I recall that much of the disruption took place at one particular time.

Honourable members will recall the disruption of government transport services by members of the Transport Workers Union of Australia in July and December of 1981. Honourable members will recall the rolling stoppages by some Canberra teachers in support of their pay claims. They will recall the bans, rolling stoppages and walkouts in support of increasing staffing levels by members of the Administrative and Clerical Officers Association. Some of these industrial disputes caused very severe dislocation. Situations occurred where a mere 10 per cent of people at the most, perhaps even less, were causing the reputation of the 90 per cent of good public servants who were not involved in some of these strikes to be brought into disrepute. Many members, particularly in relation to the Department of Social Security, wanted to ensure that the service that they could offer to the community was still available, to ensure that pensioners were not disadvantaged. Yet some in particular positions were able to put pensioners' payments very much at risk and were causing great hardship and great difficulty. I do not think that any government can stand by in a situation in which its own employees, paid from the public purse, are able to hold a government at risk. I am not saying that this legislation should be used in all cases. I am not saying that the big stick ought to be held there at all times. I am not saying that one should not try to exhaust other avenues available to resolve these matters if possible. But I do say that government ought to have available in its armoury provisions that will assist in the resolution of a dispute at last resort.

The Government, in putting to us its reasons for repealing this legislation, made the point that it did not consider it appropriate that the Government as an employer should have statutory powers of the type found in the Commonwealth Employees (Employment Provisions) Act which are not available to employers in the private sector. It may be thought that that point made by the Government was of some persuasive right. But let me make it very clear that the Opposition and the former Government were of the view that provisions such as those contained in the CE(EP) Act ought to be available, and more widely available, to other employers in the private sector. Legislation was introduced to give effect to that. There was no inconsistency on the part of the former Government or on the part of the Opposition in their support for provisions of that sort to be used in a situation of last resort, to be used in situations of the sort that I have dealt with at some length.

Finally, I turn to the Commonwealth Employees (Redeployment and Retirement) Amendment Bill 1983. The Act that is being amended was brought in by the former Government to ensure that a satisfactory scheme of arrangement was in place for adequate redeployment and retirement of Commonwealth employees. There was significant demand in the Public Service from numbers of employees of the Commonwealth to be able to retire earlier than the usual age of 65 years. Special and advantageous provisions were being sought. But, of course, the Government, as an employer that had been in the situation where it had not been able to find ways of removing employees who were no longer of any value to the Service because their skills might have changed and there may not have been a task available in a particular area for them to fulfil, was put in the situation where the arrangements that should have been in place to enable public servants to be efficiently deployed in the Service were very much unavailable to the Government of the day to use.

The Commonwealth enacted certain legislation to provide an effective means of assessing the needs of the Public Service and to provide for redeployment and retirement. The Public Service Arbitrator brought in an award which sought to overrule the provisions contained in the Government's own legislative scheme. As a result, Determination 503 which was brought in by the Public Service Arbitrator, made provision for extending those parts of the Act that provided for length of notice and for levels of pay in the event of a person being redeployed or his employment being terminated. It also provided for preference to be given to unionists in situations where redeployment was involved. The previous Government felt that those were matters about which government and not an outside body should make decisions. For those reasons the previous Government introduced this legislation. The Opposition is of the view that the legislation is still appropriate and that the Government should legislate in this area. It should make the appropriate arrangements for its own employees. It is not appropriate for matters to be taken out of the hands of the Government. It has important economic consequences. Decisions of the arbitral bodies can have an impact upon those who are able to be employed and those who are not. We believe that those are decisions that are more appropriate for the Government to take and not the arbitral bodies.

Mr DEPUTY SPEAKER (Hon. Les Johnson) —Order! The honourable member's time has expired.