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Wednesday, 16 November 1983
Page: 2802


Mr MACPHEE(4.48) —On behalf of the Opposition, I indicate, with regard to this omnibus Bill, the Conciliation and Arbitration Amendment Bill (No . 2) 1983, that we support the majority of the provisions, but there are a number with which we disagree. As a consequence, we will not oppose the Bill at the second reading stage, but will be moving some amendments at the Committee stage. Those amendments are now being circulated to honourable members. The Opposition supports the complementary legislation which is contained in this Bill-for example, regarding joint sittings by single members of the Australian Conciliation and Arbitration Commission and a State tribunal, the expansion of the powers of local industrial boards and the exercise, by agreement, of State jurisdiction of members of the Australian Conciliation and Arbitration Commission. They were, of course, measures which were introduced and passed by this House during the life of the previous Government, when I was the Minister, but they had not been passed by the Senate prior to the calling of the early election. We obviously support those measures, and the further reasons in support of them may be found in my speech of 21 October 1982 as recorded on pages 2378 to 2380 of Hansard.

The importance of co-ordination and co-operation between the Federal and State tribunals is well known to anyone experienced in industrial relations, from the point of view not only of helping to prevent and settle industrial disputes, but also of the impact which the deliberations of those tribunals have on the state of our economy. We also support the proposal for the extension of the term of office for reasons which are set out in the second reading speech of the Minister for Employment and Industrial Relations (Mr Willis). Indeed, it seems that that provision is identical to clause 11 of the Bill introduced by Mr Viner when he was the Minister for Industrial Relations, which was called the Conciliation and Arbitration Amendment Bill 1982. I refer honourable members to page 1476 of the Hansard of 25 March 1982. We also support the extension of the common rule within a Territory in respect of the variation of awards. That, again, is consistent with Mr Viner's Bill of 1982. I refer honourable members to clause 8 of that Bill. We also support the casual vacancy provision for reasons similar to those for our support of the extension of the term of office. Again, I refer honourable members to clause 12 of Mr Viner's legislation which is essentially the same provision.

The Opposition was committed to the vesting of jurisdiction of the Public Service Arbitrator in the Conciliation and Arbitration Commission. Clear support for that, of course, is found in legislation which I introduced on 10 November 1982, as reported at pages 2997 and 2998 of Hansard. We believe that the Government has a responsibility to the public to ensure a continuity of efficient service to the public by Commonwealth employees. We stand by the two qualifications which we sought to impose in the Conciliation and Arbitration ( Government Service) Amendment Bill 1982. We, therefore, oppose the restoration of the full scope of the jurisdiction of the tribunal in the hands of the Conciliation and Arbitration Commission and the scope of orders which may be made by the Commission. We do so for reasons explained by the honourable member for Corangamite (Mr Street) when he was the Minister for Employment and Industrial Relations in 1978.

I refer honourable members to the Hansard of 10 May 1978, pages 2138 to 2140. I quote what the then Minister said and endorse his remarks in opposing the extension of jurisdiction and scope of order-making by the Commission in respect of public sector employees. The Minister stated:

It is of paramount importance that the efficiency and standards of the Public Service be safeguarded. In order to achieve these objectives, the Parliament has enacted the Public Service Act in which are laid down the principles which govern the personnel policies of the Public Service, and has vested the principal responsibility for administering the Act in the Public Service Board which in turn delegates a number of its powers to the management of departmental authorities. The Parliament has clearly intended that the area of vital importance to the standing of the Service, recruitment, selection and promotion procedures, should be a matter of management decision. There is nothing unusual about this-it is the same principle which applies in the private sector where employers have the right to recruit the employees whom they choose. But in the Public Service there is a special need that it be the Parliament and the Board exercising the powers vested in it by Parliament which determines principles and procedures governing recruitment, selection and promotion. A duality of authority over these principles and procedures, namely, the Board on the one hand and the Arbitrator on the other, can lead only to a situation where the Board is in the intolerable position of being legislatively responsible for the efficiency of the Public Service and the maintenance of a career service, but is unable fully to achieve those objectives because of constraints imposed by an industrial tribunal.

The issue is not simply one of management prerogatives, though that is important. It is whether the efficiency of the Service might be allowed to be placed in jeopardy. The Government believes it has the responsibility to the public to state clearly and unambiguously that the responsibility for determining the procedures relating to recruitment, selection and promotion in the Public Service shall remain with the Public Service Board and the management of Commonwealth departments and authorities.

That remains the view of the Opposition. We will therefore seek, through committees, to remove two of the clauses which, in fact, confer greater power on the Commission than was formerly held by the Public Service Arbitrator as a result of the legislation to which I have just referred.

We oppose clause 22 of the Bill which, and I quote from the Minister's second reading speech:

. . . is to take account of amendments in 1979 to the provisions of the New South Wales Industrial Arbitration Act 1940 related to membership of State registered unions in New South Wales. In conformity with the intention of section 132 (4) of the Conciliation and Arbitration Act, the amendment proposed will allow persons able to join a New South Wales State registered union, which is a branch of a Federal union, to become members of the Federal union. The second amendment validates the membership of those who were validly enrolled as members of a Federal union before amendments to the Conciliation and Arbitration Act in 1977 made them ineligible to remain members of Federal organisations. The 1977 amendments aligned more closely the eligibility for membership of State and Federal organisations. The amendment proposed requires that such persons should have had continuous membership of the Federal organisation immediately before and subsequent to the coming into operation of the 1977 Act.

I have quoted from the Minister's second reading speech to indicate what he says is the intention of these provisions. I now wish to ask him a series of questions. I hope that he will convey full answers to those questions to the House.

In putting these questions, I wish to remind the Minister of a speech which I made when he introduced the legislation to abolish the Industrial Relations Bureau. That was on 18 May this year. I refer in particular to pages 672, 673 and 674 of Hansard. I quote from those pages before putting questions to the Minister because the Opposition sees this as being a very important issue. On page 672 I stated:

. . . I refer in particular to the plight of independent contractors. Shortly before losing office I had discussions with the Director of the Industrial Relations Bureau regarding the inadequacies of section 132A. The Bureau drew attention to that in its last report, presented to the Parliament in October 1982. At page 25 thereof it observed:

One hundred and fifty-four complaints and enquiries were dealt with by the Bureau in 1981-82 from persons who either claimed that they were not employees but were being coerced into joining an employee organization or who wished to know the protection afforded to them by the Act. Section 132A purports to provide a measure of protection, against discriminatory action by employee organizations, for independent contractors who meet the definition of and, who do not belong to an employee organization. The difficulties and limitations associated with its application were commented on in some detail in the Bureau's 1979-80 Annual Report.

Although the Bureau continued to be able to secure relief for some complainants , especially sub-contractors who could demonstrate that they were themselves employers of labour, the Bureau's experience in 1981-82 was of continuing difficulty in obtaining a resolution of problems brought to it that satisfied complainants and enquirers.

The Director of the Bureau made a similar observation in the previous year at page 17 of his annual report:

From information tendered and enquiries made it is apparent to the Bureau that the incidence of dissatisfaction amongst 'independent contractors' or 'self- employed' persons concerning unions enrolment overtures is very much higher than is reflected in the number of individuals who have approached the Bureau directly.

In the view of the Opposition, it is wrong to sanction the continued membership of a trade union by persons who, since 1977, have been ineligible to be members. In most cases their continued membership is the result of coercion. I ask the Minister to have the tripartite committee which he has established give priority attention to this matter. If there is another reason other than that advanced by the Minister in his second reading speech, the House ought to hear it.

I remind the Minister of what I said on 18 May. I refer to page 673 of Hansard. I asked the Minister to request the tripartite committee that he established:

. . . to give high priority to this matter and to recommend legislation prior to the completion of the examination of the whole Act. I do not believe that the public interest should be imperilled in this regard by waiting for the completion of a review which might well take another 18 months or two years. The problem is urgent.

All independent contractors, owner-drivers and other self-employed persons are entitled to have their position clarified and protected from the coercion to which they are so often exposed by union organisers to join unions even when they are not strictly eligible to do so.

That matter remains uncommented upon by the Minister. He might take the opportunity in reply to say what he has done with regard to that request. I quote two more excerpts from that speech in order to show the concern which the Opposition has about the legislation now before us. At page 674 of the Hansard I said:

So, as a matter of public interest, the Act ought to be amended in order to ensure that first, independent contractors are given protection from action taken against them by anyone on the basis that they are not members of a registered organisation. In theory, this should apply to both unions and employer organisations but I doubt that employer organisations pursue them in this fashion, and so in practice it is likely to apply only to unions. Secondly, independent contractors who are not employees should be precluded from membership of employee organisations but be able to join employer organisations where the rules so provide; and, thirdly, independent contractors who are actually deemed eligible to join an employee organisation by virtue of section 132 (4) should have the same rights as other employees regarding conscientious objection to union membership under section 144A.

A little later, on the same page, I said:

Section 132 (4) of the Act enables employee organisations with branches in any or all of the States of New South Wales, South Australia, Queensland and Western Australia, whose rules make appropriate provision, to recruit to their membership persons deemed employees for the purposes of those respective State industrial codes. The entitlements can differ from State to State and, in some instances, would include persons entitled to join an employer organisation under section 132 (1) (a) or section 132 (2) of the Act.

. . . .

It is not a major issue in industrial relations, but it is a major irritant to people affected by it.

If State governments sanction coercion even more than they now do, how far is Federal legislation to accommodate that even for the restricted purpose of validating elections which can be conducted by Federal registered unions and branches of those unions which happen to be registered with State jurisdictions? We certainly understand and respect the importance of achieving the most stable industrial relations environment via secret ballots for the election of officials. We do not wish to complicate those procedures or jeopardise their effectiveness from an industrial relations point of view. But we do feel so strongly about the issue of coercion in respect of those persons who, for all practical terms, are self-employed, that we feel it inappropriate to sanction in any way a recognition of persons who are still members of a federally registered union when, since 1970, they have been ineligible to be members. We do not see the point of their maintaining any membership of a federally registered union regardless of what State law says about their eligiblity to belong to a State registered organisation which is related to the Federal body. I ask the Minister for Employment and Industrial Relations to consider suspending that part of the Bill at least until the tripartite committee has reported.

The next matter to which I wish to refer is the amendments to Part VIIIAA of the Act regarding accounts and audits. These are very sensible amendments and are in the spirit of what the previous Government said when introducing changes to this Part of the Act in 1980. We support those amendments. With regard to the amendments to those parts of the Act introduced by myself in the Conciliation and Arbitration (Management of Organizations) Act 1982 we support clause 23 (b) and (c) of the present Bill. We oppose clause 23 (a). We support clauses 23 (b) and (c) for the reasons set out by the Minister in his second reading speech. But we oppose clause 23 (a) for the reasons set out in my second reading speech introducing section 132F on 26 October 1982. I shall come more fully to my speech on that occasion shortly. But I refer honourable members to pages 2539 to 2541 of the Hansard.

We cannot understand how the Government could argue that offences of the kind contained in the sections mentioned by the Minister could now be removed as barriers to persons holding office in registered unions or registered organisations because they cover employer bodies as well. At the very least the Government should not make amendments of this character before the tripartite committee of inquiry has reported. This is especially true as the National Labour Consultative Council does not recommend the course of action which the Government is taking. I would like to draw to the attention of the House the way in which the Minister introduced this matter in his second reading speech. He said:

While the Government considers that it is desirable that the provisions be examined by the review it does, nevertheless, recognise that the existing provisions might have the effect of debarring people from holding office because they have been convicted of relatively minor offences or of offences which are not directly connected with the person's fitness to hold office in an organisation; for example, a technical assault or a driving offence. Accordingly , clause 23 amended section 132F of the Act by reducing the range of offences set out in paragraph 132F (l) (B) so that the offences are confined to those relating to elections or ballots under the Act and by changing the basis of paragraph 132F (1) (B) so that the paragraph will refer only to convictions imposed for crimes associated with damage or violence intentionally committed for which a person serves a sentence of imprisonment. Therefore, only criminal offences which the court regards as sufficiently serious to warrant imprisonment will attract the disqualification provisions.

I have quoted that statement because I believe that what the Minister is doing by these amendments is much more extensive than his second reading speech conveys. First of all, let me refer the House to the offences which are being removed. They are offences under this Act but they are being removed as barriers to persons holding office in registered organisations. Section 132G refers to a failure to comply with an order of the Federal Court of Australia under the prescribed offences section. Section 141 refers to a failure to comply with the direction of the Federal Court on matters concerning the Industrial Relations Bureau; for example, secret ballots. That is probably now a matter for the Industrial Registrar but it concerns secret ballots.

Section 143 refers to a failure to comply with the direction of the Federal Court of Australia on the observance of rules of organisations. Section 153A refers to a failure to lodge with the Registrar details of money held by organisations. Section 153B refers to a failure to lodge with the Registrar details of loans or donations of over $1,000. Then sections 158, 158AE, 158AF, 158AG, 158AH and 158AL deal with failures in relation to financial accounts and auditors. Section 185 relates to false representation, under this Act, as a member of an organisation. This is the only one of those offences that carries a penalty of imprisonment. I recognise that the maximum fines imposed under the other sections generally are not large. I would not have thought that that of itself justified it being called a relatively minor offence. Surely what is important is the nature of the offence. Is it not a major offence in relation to the carrying out of the duties of an office holder of a registered organisation that the person concerned is found guilty of failing to comply with a Federal Court order? Is that a minor offence? Are the matters concerning the funds of the union minor?

I would have thought that the community was very concerned about the sorts of things revealed in particular by the Winneke Royal Commission into the Activities of the Australian Building Construction Employees and Builders Labourers Federation. Those matters relate to the funds of the union. Do they not relate directly to the capacity of a person to perform the duties of an office holder of a union or an employer organisation? I would have thought that they did. I would have thought that this was the very sort of provision that would render a person ineligible. Why has the Government obfuscated these amendments by lumping them together with technical matters such as driving offences? I have already indicated that the Opposition agrees with the elimination of the notion of recklessness from the section dealing with intentional violence or damage to property. These other matters directly relate to the performance of duties, whereas a technical assault or driving offence can happen to any citizen and do not of themselves relate to the way in which one conducts one's responsiblities as a professional office holder.

The Minister owes the House an explanation as to why the Government seeks to amend the Act in this way and why the Government wishes to do so now. Why not wait for the tripartite inquiry, expecially as the Minister indicated in his second reading speech that the provisions that relate to the conduct of secret ballots are to remain? Section 141 most clearly does relate to that. I think the Minister owes an explanation about that. One wonders whether the Government is suggesting that the conduct of the average leader of our trade unions or employer organisations is so close to the wind that a hasty repeal of the legislation of just a few months ago is essential to prevent him from being debarred from office. If so, the Minister has an obligation to inform the Parliament. If not, he has an obligation to tell us why he cannot wait for the tripartite inquiry to report.

In my speech on 26 October of last year introducing these provisions, I made it clear that they were being introduced after findings of both the Winneke Royal Commission into the Builders Labourers Federation and the Costigan Royal Commission on the Activities of the Federated Ship Painters and Dockers Union. As reported at page 2539 of Hansard of that date I said:

Both of these recommendations highlight the need for the honest administration of registered organisations. These bodies play a vital role in Australian society. It is plainly against the interests of the community and the members of registered organisations if their administration is not competent and honest. The Government does not doubt that by far the majority of registered organisations are honestly run . . .

. . . .

The Attorney-General . . . has directed his Department to ensure that when the public comments on the exposure draft are being examined, consideration is given to the question whether the companies provisions need any amendment so that, as far as possible, they cover the same range of offences as those set out in proposed sub-section 132 (F) (1) contained in this Bill and to the question whether any other adjustments would be desirable to the companies legislation to bring it into line with the relevant provisions of this Bill.

At that time an exposure draft was being prepared by the Attorneys-General and it was the Government's view that the clauses of the Conciliation and Arbitration (Management of Organizations) Amendment Bill 1982 ought to have mirrored as far as possible the relevant sections in the Companies Act. Some of the people involved in the so-called $2 companies had been accused of behaving in an unscrupulous manner, as had a very small minority of office holders of the registered organisations under the Conciliation and Arbitration Act. Without quoting my entire speech, I refer honourable members to page 2540 of that Hansard. It is quite clear that the origin of these provisions was in the Companies Act and that we were adapting them to the situation of registered organisations in a practical and sensible way which was certainly in the public interest. However, it is also important to observe this, and I quote from page 2540 of that Hansard:

. . . The Bill provides an office holder or a candidate for election or appointment to any office who has been convicted of one of the classes of offence I have referred to with the right to seek leave from the Federal Court of Australia to continue to hold office or to be eligible for election or appointment. If the Court grants the application, the applicant will not be disqualified under the legislation. Where the Court refuses the application, the disqualification will continue to operate but it may, if the Court thinks fit, be reduced to a period less than five years.

No-one is inconvenienced or treated unjustly and there is no need for these provisions to be repealed. As I said at page 2541 of that Hansard, it was responsible and reasonable legislation. It is legislation which I believe the community expects. It is legislation which any self-respecting organisation will welcome. Organisations run competently and honestly have nothing to fear from it . It will protect a high standard of administration in organisations. I emphasise that the legislation does not single out the trade union movement for attention. The Bill applies equally to organisations of employers registered under the Conciliation and Arbitration Act.

It is unfortunate to say the least that the behaviour of some notorious trade union officials may have done a grave disservice to the reputations of honest administration enjoyed by so many other officials of organisations in this country. However, the members of organisations registered under the Conciliation and Arbitration Act are entitled to have protection against untoward activities that might be engaged in by officials. At the same time, as I have pointed out to the House, there are safeguards in the Bill to protect the individual officials of organisations. The Bill is certainly not intended as a reflection on the probity of the great majority of hard-working officials of employer or union bodies in this country. Such officials should not see it as an adverse reflection upon them any more than the great majority of company directors should see similar provisions applying to them as reflecting upon their integrity.

The Opposition feels that the Government owes explanations. At the Committee stage I will move amendments which are aimed at rectifying the matters to which I have referred and at restoring the Bill to what we believe is a publicly acceptable form. It is a complex Bill, with some 43 amendments covering a range of matters. I repeat that we support the majority of the amendments. We certainly support those remaining technical amendments to which I have not referred. However, we are concerned and we will move constructively at the Committee stage a number of amendments. I hope that the Minister will take heed of what I have said and will answer the questions which I have asked.