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Tuesday, 30 May 1972
Page: 2277


Senator CAVANAGH (South Australia) - I enter this debate in an endeavour to find out the full implications of the proposed section. On the first occasion the Attorney-General attempted to make some reply but it is unfortunate that he is the last speaker and after he speaks he moves that the question be put. It could well be that an honourable senator directing a question to the Attorney-General cannot make himself fully understood. The reply given by the Minister may not satisfy a genuine questioner in relation to how the Bill operates. The fact that the AttorneyGeneral has not given a satisfactory reply may be due to the inability of the one inquiring to express himself, and because the Attorney-General moves that the question be put the honourable senator may be left without knowledge.

Honourable senators will recall that during the debate on the previous clause I suggested that the Minister responsible for this Bill might give a guarantee that he would at least inquire into whether it was necessary to make provision for an exemption from the penalty provided under the clause for not appearing before a tribunal if there was reasonable cause. All we got from the Attorney-General in reply was that the fine for not appearing was justified. I never complained about the fine. I suggested that if there was reasonable cause for not appearing there should be an exemption. I thought under some authority given by the Minister for Labour and National Service (Mr Lynch) the Attorney-General could inquire, discuss the matter with bis advisers and let us know. I do not know whether the Minister for Works (Senator Wright), who represents the Minister for Labour and National Service, has more authority than the AttorneyGeneral or whether the Minister for Labour and National Service is only one of the understudies of the Attorney-General. While the Minister for Labour and National Service in the other House was prepared to give some assurance the Minister in this House was not prepared to give that assurance. When we have an embarrassing position where a matter which has been raised necessitates a reply, it is overcome by moving immediately that the question be put.

Proposed new section 32 gives the Commission power to include in awards provisions relating to hindering the observance of awards. It permits the imposition of penalties. Proposed new section 32 says that the power of the Commission shall not extend to including in an award or varying an award so as to include a term, however expressed, by virtue of which engaging in conduct that would hinder, prevent or discourage the observance of an award and so on. It is questionable what engaging in conduct* would mean. When does one engage in conduct which would hinder, prevent or discourage the observance of an award? The commissioner under proposed new section 32(1.) (a) is not permitted to do that but under (c), if an award includes such a term, the power to vary the award so as to exclude or alter the provisions of that term is exercisable by a presidential member and not otherwise. So we see the inclusion of some penalty for an offence in respect of attempting to prevent or discourage the observance of the award, the performance of work in accordance with the award or the acceptance of or offering for work in accordance with the award.

Proposed new section 33 (1.) deals with the procedure in respect of conduct in breach of a bans clause and states:

This section applies in relation to a term of an award, however expressed, by virtue of which engaging in conduct that would hinder, prevent or discourage -

(a)   the observance of the award;

(b)   the performance of work in accordance with the award; or

(c)   the acceptance of, or offering for, work in accordance with the award, is. to any extent, prohibited.

I do not know how far this hindering, preventing or discouraging of the acceptance of or offering for work in accordance with the award applies. I wonder how much it interferes with the normal duties of a union secretary. If someone reports to the union office and says: 'I have a job with employer A' who is the subject of an award and the union secretary says: 'I would not go there because we have had a Jot of trouble with him and you can get more wages somewhere else', it would appear that the union secretary is in breach of proposed new section 33 for carrying out his normal duties. This is a very wide provision which seems impossible to define. When does one hinder, prevent or discourage? I can imagine that, out of friendship, I could discourage someone from working at a particular place. I could say: 'The conditions of work in that occupation are not conditions that should be encouraged and if I were you I would look somewhere else'. Would I be in breach if I made that suggestion? Proposed new section 33 (2.) states:

Where it appears to a person or organization bound by an award that conduct in contravention of a term of the award in relation to which this section applies is being, or is likely to be, engaged in, the person or organization may give notice to the Registrar accordingly.

The pimp on me discouraging someone from taking a job at a particular location for a particular firm is a person or organisation bound by an award. When we read sub-section (4.) of proposed new section 33 we find that I am responsible not only for discouraging someone from going to ยป place but also for past action in this respect because (4.) states:

Where it appears to an organization or person bound by an award that conduct in contravention of a term of the award in relation to which this section applies has been engaged in, but has ceased without a notice having been given in respect of the conduct under sub-section (2.) of this section or before such a notice has been dealt with by a Presidential Member, the organization or person may apply for a certificate under the next succeeding sub-section in respect of the conduct.

Sub-section (5.) states:

Proceedings under section one hundred and nineteen of this Act -

That is, the imposition of the penalty -

.   . in respect of conduct constituting a breach of a term of an award in relation to which this section applies shall not be instituted unless a Presidential Member has given a certificate in writing stating that the requirements of this section have been complied with in relation to the conduct.

Therefore, not only the fact that I advise someone not to take a particular job but also the fact that 1 advised someone similarly a fortnight ago still justifies the issuing of a certificate and action under section 119. If that rs the correct interpretation surely it is a most brutal infringement of the right of any individual to advise someone seeking employment. It is definitely an infringement of the duties and responsibility of a union official.

Sub-section (6.) states:

A Presidential Member shall not give a certificate under the last preceding sub-section unless -

(a)   the conduct concerned is conduct in relation to which there have been proceedings before him or another Presidential Member under sub-section (3.) of this section. . . .

(b)   the application for the certification is made in accordance with sub-section (4.) of this section.

Of course, sub-section (4.) is the one that relates to some past happening. Therefore the presidential member is under some compulsion to issue a certificate and this necessitates a hearing under section 119 of the Act. Sub-section (7.) states:

Where -

(a)   proceedings in relation to any conduct have been commenced before a Presidential Member in accordance with sub-section (3.) of this section; and

(b)   the conduct is still continuing notwithstanding th3 Presidential Member has taken all steps that appear to him to be appropriate for bringing about its early cessation, the Presidential Member shall not refuse an application for a certificate under sub-section (5.) of this section in relation to the conduct unless he is satisfied that a prompt settlement of the matters giving rise to the conduct will be effected or that the conduct is otherwise about to cease.

This is the question that Senator James McClelland raised regarding the responsibility of the presidential member to issue a certificate. He has no option and need not consider whether it is in the public interest or whether it is in the interest of an amicable settlement or relationship in a particular industry. Sub-section (8.) states: (8.) Where an. application for a certificate in respect of past conduct is made in accordance with sub-section (4.) of this section, a Presidential Member shall inquire into the matters relevant to the application and, if satisfied that the conduct alleged has been engaged in but has ceased, shall inquire into the circumstances in which it so ceased, and shall not give the certificate it it appears to him that the giving of the certificate would be undesirable having regard to the circumstances in which the conduct ceased or the terms of a settlement that has taken place of the matters that gave rise to the conduct

The question there is whether it is desirable. If it is to stop the union secretary from advising someone on a future occasion it is desirable that the presidential member issues the certificate although the conduct has ceased and something could have happened a month ago. To my mind this involves an infringement of the rights and duties of officers of organisations. It could be an infringement of the civil liberties of individuals. Tt is more tyrannical than anything we have experienced previously. The penalty under section 119 is high. Proposed section 34 refers disputes to the full bench. Proposed sub-section (6.) reads:

Where the President so directs, the Commission shall, subject to the next succeeding sub-section, hear and determine the industrial dispute or the part of the industrial dispute, as the case may be, and, in the hearing, may have regard to any evidence given and any arguments adduced in arbitration proceedings in relation to the dispute or the part of the dispute before the Commission commenced the hearing.

That is quite the reverse of what happens in arbitration. The arbitrator cannot take into consideration what happened before the commissioner. The justification of the Minister was that conciliation and arbitration are entirely separate and the arbitrator must not be influenced by what occurred previously. That does not apply in relation to proposed section 34 (6.). If it is justified in one case, why it is not justified in the other case is entirely beyond me. I think that requires an explanation. Proposed section 35 deals with appeals. Proposed subsection (5.) states:

Where-

(a)   a member has made an award, or has made a decision under section 28 of this Act by virtue of which an award is to be deemed to have been made, being an award that affects or supersedes, in whole or in part, a previous award; and

(b)   the award so made or to be deemed to have been made is binding on some only of the organisations and persons who were bound by the previous award, an organisation which, or a person who, is bound by the previous award but is not bound by the award so made or to be deemed to have been made may, within 21 days after the date of the award or decision . . . appeal to the Commission against the award or decision.

An employer may be bound by the award. A union makes application for another award which does not bind employer A, but after the second award is made employer A can appeal against the making of an award binding employer B. It does not bind employer A. He is not concerned in it. He has no interest in it. He is not bound by it. He is not a party to it. He still has the right to interfere in an award made by agreement between the parties. Perhaps the Government could justify the interference if the employer were a party to the award or if there were a clause in it which he found excessive. But this is a person not bound by the award a person who was a party to a previous award. The proposed sub-section continues:

.   . and, if the Commission is satisfied that the organisation or person has a sufficient interest to justify the institution of the appeal and that the award or decision is of such importance that, in the public interest, an appeal should lie, the Commission shall hear and determine the appeal.

The appeal under proposed sub-section (5.), which I have just read, is referred to in proposed sub-section (7.), which reads:

An appeal under sub-section (5.) of this section -

(a)   may be made notwithstanding that an appeal has been instituted under sub-section (2.) of this section against the award or decision; and

(b)   does not affect the right of an organisation or person to appeal under sub-section (2.) of this section against the award or decision, and may be dealt with in the same proceedings as an appeal under sub-section (2.) of this section.

Proposed sub-section (2.) reads:

An appeal lies to the Commission against -

(a)   an award made by a member, a decision of a member . . .

Under the Act there could be 2 appeals against the one award one by a person bound by the award and one by a person not bound by the award.







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