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Thursday, 12 April 1973
Page: 1427

Mr DEPUTY SPEAKER - Order! I call the Minister for Labour. (Quorum formed)

On that occasion, the Deputy Leader of the Opposition went on to say:

The question of whether there should be changes in the legislation to specify more clearly the procedures under which organisations can amalgamate in the future is one to which the Government is giving detailed consideration. We believe quite firmly that there should be proper membership control of the organisations consistent with their efficient management and operation.

The Government agrees with the ideas then expressed by the Deputy Leader of the Opposition. However, the legislation subsequently introduced by him did not facilitate the amalgamation of trade unions. Instead, it placed almost impossible procedural barriers in the way of amalgamations. It provided, for instance, for elaborate and complicated ballots more suited to defeat than to express the will of the membership. They were, in fact, intended to prevent amalgamations from taking place.

I know that these provisions were resisted by the Deputy Leader of the Opposition but they were forced on the government by the Democratic Labor Party. The Democratic Labor Party used every device at its disposal to thwart the amalgamation of the metal trade unions. That Party threatened to defeat all the amendments to the Conciliation and Arbitration Act unless the then Government capitulated to its opposition to amalgamation. The previous Government capitulated. The Liberal Party now has the chance to demonstrate that it is free of the shackles of the Democratic Labor Party. I would expect it now to support the very proper position previously taken by its present Deputy Leader on this issue.

The usefulness of the present provisions will be tested by the simple question - do they help or do they hinder the unification of the trade unions into more powerful institutions to represent and uphold the interests of the employees? For an amalgamation proposal now to be adopted by a union, it will be necessary merely for a majority of those voting to approve of the proposal. It will not any longer be necessary for 50 per cent of the enrolled membership to vote in an amalgamation ballot.

The defects of the existing system can be clearly demonstrated. For example, in an amalgamation ballot in which 51 per cent of the membership voted, and 51 per cent of those voting were in favour, the proposal would be carried even though only 26.01 per cent of the total membership voted in favour. Contrast this where 49 per cent voted and 90 per cent of the voters favoured amalgamation. Under the Liberal Government's legislation this proposal would have been defeated even though 44 per cent of the total membership voted in favour. Clearly the proper approach is to give every member the opportunity to vote and require him to accept the verdict of those voting.

The Bill provides that the unions themselves will have the power to conduct amalgamation ballots. Amalgamation ballots will be conducted by the Commonwealth when requested by the unions concerned. The cost of such ballots will be borne by the Commonwealth. These ballots will not be open to challenge, although the Court will have power to investigate ballots conducted by the union itself. The existing provisions which exempt a large organisation from the requirement to hold a ballot when amalgamating with a small organisation have been simplified.

Actions for Tort

The Bill amends section 5 of the Act to provide protection to officials, or members of unions against discriminatory action within the employer's establishment where the official or member has merely upheld the industrial interests of the employees, so long as the action he takes is within the limits of the authority given to him by the organisation. The Bill also provides protection for trade unions and their officials against actions for conspiracy or inducement of breach of contract founded on the events of an industrial dispute. I want to emphasise, however, that this protection will not extend to acts which cause death or physical injury to a person, physical damage to property or involves defamation, or to threats of such acts.

The provisions protecting union officials from tortuous actions stem basically from the Goverment's belief that the right to strike is a fundamental right which every employee must have. Actions for tort founded on industrial disputes represent a direct negation of the right to strike. A strike by its very nature carries with it the threat that the employer will suffer some material loss. If an employer is to be permitted to recover at law any loss that he suffers from his employees then the right to strike becomes meaningless. Workers go on strike whatever the law may have to say about it. That is the clear experience throughout the whole history of the arbitration system in Australia and our experience is similar to what happens in other countries such as the United States, England and the other European nations.

The common law of conspiracy and the statutory prohibitions against strikes which flourished in the nineteenth century in England and America failed to suppress strikes. Pitt's Combination Acts failed to suppress trade unions. Whether or not a strike takes place may to some extent depend in some countries upon the strength of the army or the police; but outside a totalitarian dictatorship, no government has ever succeeded in suppressing concerted stoppages of work. In Czechoslovakia, Poland and Hungary not even the Red Army, which has no national sympathy for the workers of those countries, has been able to prevent great strikes for justice and better living standards, tanks and field guns notwithstanding. The prime consideration for reform of this branch of the law lies in the fact that the law of tort can do little, if anything at all, to promote good industrial relations, but it can certainly do a lot of harm. Strike leaders should not be penalised because of inherent defects in our system for resolving industrial disputes. Over recent years, we have seen a new development in Australia. A number of cases have been brought to recover damages and for injunctions in respect of industrial disputes.

Mr Lynch - How many?

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