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Thursday, 24 October 1974
Page: 1950

Senator GREENWOOD (Victoria) -Mr Acting Deputy President, this Bill was introduced into the House of Representatives on 1 October this year. After diligent efforts by Opposition spokesmen the Bill was not required to be debated until 16 October, but that represents a lapse of merely 4 sitting days of the Parliament. The Bill came into the Senate on 17 October and one week, or 3 sitting days, later the Opposition is faced with the need to consider the Bill in this place. The Bill attempts to deal with one of the most complex legal situations which the Constitution has projected. A problem of considerable practical importance requires resolution. The solving of this problem has taxed the resources and the ingenuity of some of the most astute lawyers of this country over many years. It has particularly excited attention without resolution in the 5 years since the clear character of the problem was resolved in the now well-known case of Moore v. Doyle in the Commonwealth Industrial Court in 1969.

The Opposition views with concern the way in which the Minister for Labor and Immigration (Mr Clyde Cameron) has treated this Bill. We are concerned that he has regarded the problems which it purports to solve as matters which can be dealt with in a cavalier and undiscerning way. We are concerned that the persons most vitally concerned in the rectification of the problemnamely, the union movement, members of a number of unions and some employers' organisations, but not all of them- have not been consulted as to the course which the Minister is pursuing. The States, whose co-operation in the passage of complementary legislation is absolutely indispensable to this Bill achieving its objectives, have not been consulted, and the Minister is unable to say what their course of action is likely to be. It is not unreasonable to say that the Minister is treating the people of this country, this Parliament and the persons most vitally affected by the problems that Moore v. Doyle has highlighted with contempt. It is not unreasonable to reflect on his attitude to this Bill and to compare it with his attitude to the administration of his portfolio generally. He has assisted, as the Minister for Labor and Immigration in this country, in producing the greatest rate of inflation that we have known in decades. He has assisted in the highest level of industrial disruption and dislocation, loss of working days, numbers of strikes and loss of wages in more than half a century, and he has presided over the nation's worst unemployment since pre- 1949. One wonders at the application of the Minister to the problems of this country when one considers the way in which he has treated this matter of resolving the problems of Moore v. Doyle.

The Moore v. Doyle case in 1969 disclosed that the incorporation of employees' or employers' organisations under Federal legislation was not the same thing as the incorporation of such organisations and the creation of unions under State legislation. A union which is established under Federal legislation does not control or regulate the affairs of a State branch if that State branch is incorporated under the relevant State legislation. Questions of assets, membership and control all become the subject of disputation if 2 organisations, one Federal and one

State, each purport to exercise an authority over membership, assets or control of the organisation. The affairs of Federal and State organisations are thrown into confusion. Practical problems have arisen and will continue to arise because for years there was no recognition- or if there was some recognition it was inadequate- of the issues raised by this vexing decision of the Industrial Court. The decision in Moore v. Doyle did not create the problems. The problems were antecedent to the decision, but the decision exposed them. The real heart of the problems lies in the demarcation constitutionally of the power of a legislature to make laws with respect to the settlement of industrial disputes between the Commonwealth and the States. Section 51 (xxxv) of the Commonwealth Constitution provides a system for the settlement by conciliation and arbitration of industrial disputes which extend beyond the boundaries of any one State.

In the early days of our nation when the Constitution was being interpreted and was developing its own particular glosses there was an extension of the powers of the Commonwealth with regard to that head of power in a manner which had not been contemplated by those who had originally drafted and conceived the nature of the Federal power. The desire to move into the Federal arena of dispute settling and award making attracted the interests and efforts of many union officials. This head of power and the way it was implemented gave rise to the growth of Federal unions and Federal employers' organisations and to the creation of disputes by easy, if somewhat artificial means. In the settlement of those disputes awards which had been offered to those who sought to bring themselves within the ambit of the Federal power were more acceptable and more generous than awards which were obtainable under the State legislation.

The combination of the interpretation of section (5)1 (xxxv) and the decision of the High Court in the Jumbunna case in 1 909 sustained all organisations of a Federal character. These organisations grew to take advantage of the federally provided disputes and award provisions. Little thought or attention was given, when a Federal organisation was being established, to the relationship between the State branches and the State unions. When State branches or State unions were combined to create Federal organisations the precise nature of the relationship between the State organisations and the Federal body was not clearly denned. In parricular, little thought was given to the consequences of incorporating a trade union or an employees ' or employers' organisation under State legislation for the purpose of obtaining State awards or resolving State disputes when that organisation seeking State incorporation was also in an imprecisely defined way a branch of the Federal organisation.

Factionalism, litigation and the ambition of oncers of various unions, together with a considerable amount of legal ingenuity, brought to these latent difficulties a prominence which was eventually exposed in the problems of the Transport Workers Union in New South Wales preceding the Moore v. Doyle case. The Moore v. "Doyle case was important because, as I said earlier, it highlighted the distinction of a State branch of an organisation constituted in a particular way which, although it had regarded itself as part of a federal organisation, could not be part of that federal organisation. In the judgment which was handed down the Chief Judge of the Industrial Court indicated quite clearly that there was a need for reform, and he called upon all the parsons who were involved in the resolution of that problem to get together with a view to working out the necessary reforms.

Senator Button - He forgot about the Senate opposition. He did not mention that.

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