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Tuesday, 30 May 1972
Page: 2268

Senator GREENWOOD (VictoriaAttorneyGeneral) - I feel that we have listened patiently and at length to comments which are not directed to the clauses to which Senator Bishop initially directed himself. We have heard rather generalised statements which are more in the nature of second reading speeches directed to the concept rather than to the particular clauses in the Bill. May I say that one of the major factors which prompted the Government to bring down this legislation was its belief that there could be very considerable improvements in the conciliation and arbitration procedures. The main purpose of the measure is to provide for a separation of the conciliation and arbitration responsibilities. The points which were made by Senator Carrick are tremendously valid if only persons were prepared to acknowledge them and to try to meet them, if objection were taken to them.

Obviously the most will be gained from the process of conciliation if the parties engaged in it know that the ultimate is that agreement just cannot be reached. If, on the other hand there is an emergence from conciliation into arbitration, as happens at present, the persons who are engaged in conciliation will always be having some forethought as to what might be the ultimate result if they have to get into arbitration. That does not bring out the best in a conciliation process. In this measure the Government, has decided to ensure that the conciliation process is in one area and that when the conciliation avenues have been exhausted that is the end of the role of the conciliation commissioner. His task is to refer it on to the next person in the task force, and he will be an arbitration commissioner. His job will be arbitral. As a presidential member he will have the function of arbitrating.

It appears to me that that is a system which is eminently sensible. Never let it be forgotten that in times past people who have sought to engage in the conciliation process have utilised all the power which direct action avails them in order to stand over the opposite party to the process. When that situation occurs, what in form might be meaningful negotiations, as the unions have sometimes described them, in effect amounts to one party saying: 'You give us what we want, otherwise we will never go back to work.' We have had examples of that situation in times past. If the provisions of the legislation at present are not adequate to cope with that situation, let us see how the provisions which the Government is proposing will deal with it.

I believe that the concept of having the conciliation process as one separate step and the arbitration process as another step is undoubtedly a move forward which will have advantages. Experience alone will show whether I am right. I hope that I am right and the Government hopes that it is right. It certainly is a step forward from the existing position. So much in this area does depend upon the willingness with which persons are prepared to enter into conciliation procedures, because unless they are prepared to enter into them with the expectation that by discussing matters wih a conciliation commissioner and exploring the strength and sometimes conceding what is a weakness of one's position a satisfactory compromise will be reached, the most will not be gained out of conciliation. If conciliation is entered into on the basis that one party has all the power and conciliation is just one necessary step along the line I do not believe the parties will get anywhere.

Some specific points have been made to which I will refer. Senator Milliner repeated what Senator Cavanagh said before him about the provision of a fine of $1,000 for a person who does not attend a conciliation commissioner's conference when he is required to do so. This provision is in the existing legislation and obviously the kernel of the conciliation process is that persons who have to attend in order to discuss a matter should be compelled to be there. If they are not prepared to be there a substantial sanction must be imposed. That is why the fine of $1,000, fixed originally I think in 1966, is retained in the present legislation.

The suggestion was raised initially by Senator James McClelland and was also dealt with by Senator Cavanagh that there is something restrictive in giving to a presidential member the right to organise and allocate work to members of the panel or task force, and then to impose a requirement for the directions to be obeyed. To suggest that there is something restrictive in that area is plain nonsense. It is a similar provision - not exactly identical - to that in the present legislation. In the present legislation a senior commissioner has the obligation under section 27 to allocate the work of the commissioners and conciliators. As the senior commissioner's position is now to be abolished it is appropriate that the duty should be allocated to the presidential member. Section 27 of the existing legislation states: (1.) Subject to the last preceding section, it is the duty of the Senior Commissioner to organise and allocate the work of the Commissioners and of the Conciliators. (2.) A Commissioner or a Conciliator shall comply with any direction given for the purpose of the last preceding sub-section which is applicable to him.

The proposed new sub-section (3.) of section 23 provides:

It is the duty of the Presidential Member who is a member of a panel under this section to organise and allocate the work of the members of the panel in respect of the industry or industries allocated to the panel, and the other members of the panel shall comply with directions given by the Presidential Member in the performance of that duty.

Substantially there is no difference in the proposed new sub-section except that a presidential member will now have the task of allocation and organisation whereas previously it was the work of the Senior Commissioner. It is not a question of a presidential member's delving into the role which a conciliation commissioner is required to perform any more than that was true of the Senior Commissioner. The only obligation is for the commissioner to obey directions as to the duties he shall perform and not an obligation to follow the directions of the presidential member in the carrying out of a conciliation function. A reading of the language indicates that that is the position. Proposed new section 20 contained in clause 13 provides that it is up to the Commission and the parties to decide what goes into a particular dispute settlement procedure, and thus whether a particular procedure will or will not include sanctions provisions will be determined by the nature of the procedure which the parties themselves agree upon. That is expressly provided by proposed new section 20 of the legislation;

We hear the comment from somebody else that Government obviously, when you look at these provisions, is determined to make the task of conciliation more difficult. It is an unreasonable, slanted, unfortunate attitude which gives expression to that sort of view. Obviously any reasonable person would regard these provisions as a genuine effort to promote the processes of conciliation. As I have said, we believe that they will promote the processes of conciliation. But it is a completely negative and opposing view to say that the concept is one of making conciliation more difficult. It is not the Government's intention to do that and I do not believe that the language will have that result.

Senator Milliner - Well, will you tell me-

Senator GREENWOOD - I have not much time; I have heard about 5 Opposition senators, and I want to get this Bill through. If one examines some of the other particular matters which have been raised, of course it is in the public interest for a conciliation commissioner to be able to say that a particular conciliated agreement does not meet with his approval. If we have a situation where because of the tremendous power which a particular union exercises upon an employer, not in a very substantial way, and by sheer threat and the force of direct action gets what is called a conciliation agreement, I think it is a matter for a conciliation commissioner to consider: 'Is this in the public interest?' If he believes that it is not in the public interest. I believe that he should refuse to certify the agreement or refuse to make the memorandum. That is what the legislation provides. Do honourable senators believe that the results which are secured by simply the naked use of power are things which should be perpetuated simply because the people who use that power happen to be union organisations? 1 do not believe that. I think that what we are achieving is a situation where a conciliation commissioner will have the power and the ability to be able to say whether or not an agreement, is or is not in the public interest. We have seen Government intervening in recent months before the Commonwealth Conciliation and Arbitration Commission because Government believes that there is a public interest which must be staled and asserted in these proceedings. Certainly in those cases I believe that it is to the advantage of the public that we should be able to say: 'Well, it does not matter what 2 parties might agree between themselves; if the result is to add to inflationary processes in the community we should be able to say that, in the public interest, it is not advisable'.

There are a number of other matters which have been raised but which I do not believe require any answer because I think that a reading of the legislation will indicate what they are concerned with. But I am conscious of the fact that we have been debating this clause for well in excess of an hour. Therefore I move:

Thai the question be now put.

The TEMPORARY CHAIRMAN (Senator Wood - Order! The question is: That the question be now put.

Senator Georges - No.

Senator Cavanagh - No.


Order, please!

Senator Georges - No.


Order! Senator Georges, I. wish to tell you that if I have any more trouble by way of interjection I will certainly name you.

Senator Georges - Well-


Order! The question is: That the question be now put.

Senator Georges - No. Mr Temporary Chairman.


Order! There can be no debate. The question before the Chair was that proposed new sections 18 to 31 stand as printed.

Senator Georges - Mr Temporary Chairman, I want to protest.



Senator Georges - I am protesting at this.

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