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Thursday, 24 October 1974
Page: 1952


Senator GREEN WOOD (QUEENSLAND) -Of course, in those days the Senate Opposition was constituted differently from what it is today and I do not think that he was thinking in terms of other than an earnest desire to work together to resolve a difficult problem. In the years immediately following the Moore v. Doyle case that was precisely what happened. There was the establishing under the aegis of the Commonwealth Minister for Labor and the Commonwealth AttorneyGeneral, together with the State Ministers for Labour, the State law departments, the Australian Council of Trade Unions and the national employers body, of a working party which met over a period of approximately 2 years with a view to clarifying what were the issues and testing what were the possible areas in which reforms could take place. As I understand it, everybody worked in that atmosphere with a degree of goodwill which made everyone hope that some resolution might flow out of the discussions. But as I understand the position, since the present Government came into power there have been no further meetings of those particular groups to work together to achieve a resolution.

It may be that that is not in any sense a matter of culpability on the part of the Government because my recollection is that the parties had reached the stage where there was little more that they could do in this area. The most that had been achieved was an identification of what were the areas of doubt and what were the areas that needed to be resolved, and it was hoped that some action could be taken. I do not recall what happened in 1973, but it was not until early 1974 that Mr Justice Sweeney- a one-man inquiry, assisted by counsel- was appointed with a view to resolving some of these problems. The fact is that everyone recognised that the Moore v. Doyle case had exposed these problems which had to be resolved. I think it is important to recognise that the difficulties which have to be resolved cannot be resolved by Commonwealth parliamentary action alone. They are problems which cannot be resolved by State parliamentary action alone. Notwithstanding the goodwill of the employers' organisations, there is very little that employers can do to resolve what is at heart and essentially a problem which affects the trade union movement and its organisation on a State and nationwide basis. These are the areas which I think were pinpointed as a result of the operation of the working parties to which I have referred.

I do not believe- and maybe I am pessimistic in my approach- that there will be co-operation between the various groupings to resolve the constitutional problems which the Moore v. Doyle case has thrown up. I believe that the ultimate solution must be an amendment of the Constitution, and I hope that the parties involved could use the difficulties found in the Moore v. Doyle case to reach the stage where a constitutional amendment, couched not in extravagant terms but in language which has the ability to command support from both wings of the political movements in Australia, and from employer organisations and unions, might be devised.


Senator Button - Like the 1 959 proposals.


Senator GREENWOOD -Unfortunately the 1959 proposals were not proposals which commanded support outside the 10 or 1 1 persons who comprised the Constitutional Review Committee which put those proposals forward. Indeed, my recollection is that there was not a unanimous finding by that Committee of the Parliament with regard to the reference to industrial matters. There is no doubt that this problem has attracted the attention of people over the years. No fewer than 6 efforts have been made by parties of differing political persuasions to have a change in the head of power of the Commonwealth to make laws with regard to the broad subject of industrial disputation. On 6 occasions the people have been asked to extend the power and on 6 occasions they have refused.

It is an interesting sidelight possibly on the attitudes which parties take that the desire to use the processes of the Constitutional Convention for the promotion of a further referendum on this subject of widening the industrial power of the Commonwealth was expressed as part of the Opposition Parties' platform at the last election. I suppose that proposal must be regarded as having been rejected. I understand that the Australian Labor Party favours some reform of the Constitution in this area. The Liberal Party and the Australian Country Party favour some reform in this area. The Constitutional Convention is currently constituted and is about to come into its second session, with or without Commonwealth representation. It is a forum at which agreement which is expressed independently could be brought together with the hope that some consensus could be reached. Of course, the real problem is getting together on the form of words which should constitute the head of power upon which the Australian people could be asked to vote. I believe that if goodwill is there, the differences are not so great that they could not be overcome.

One would suppose that the area which ought to be canvassed is the area under which there is a dispute settling procedure, preferably by conciliation and arbitration- not necessarily as part of the language of a head of power but as an exclusion from that head of power of a power to resolve disputes in the State or Federal public services. But this is possibly the solution of the future. What this Bill seeks to give effect to is the report of Mr Justice Sweeney. I think that one must recognise the effort and the real attempt to make a resolution of this question which is contained in the document embodying Mr Justice Sweeney's report. It is a clear document and one has no difficulty in seeing where he regards the problems as lying and the ways in which he would overcome those problems. This Bill, of course, very substantially gives effect to what Mr Justice Sweeney recommended. In the Bill there are some provisions which were not part of his recommendation, but I think it is fair to say that the Bill is a substantial implementation of his suggestions.

But I draw attention to 3 matters which Mr Justice Sweeney regarded as crucial to the implementation of his resolution of these problems. The first was that whether the Commonwealth Parliament can initiate these proceedings by this sort of legislation depends upon a favourable reading of the Constitution. It depends upon reading into placitum 35 of the Constitution and interpretation of the incidental power of the Constitution on placitum 39 of section 5 1 which will enable the Commonwealth Parliament to make laws which really relate to State organisations. It is a bold step and one in which Mr Justice Sweeney may well be right in saying that he believes the Commonwealth has that power, but it is clearly an area in which doubt does exist and will exist until at some time in the future the High Court is called upon to make some adjudication. In paragraph 15 on page 12 of Mr Justice Sweeney's report he states:

15.   The question is whether the Act validly allows the registration in one form or another of the Commonwealth organisation or part of it to enable it to participate in the workings of State industrial authorities for the protection of the industrial interests of its members. For the reason outlined earlier -

I will not refer in elaboration to those reasons which he stressed-

I am of the view that such a power can validly be given under the Act in pursuance of the power to legislate under placitum xxxv which authorises Parliament to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State and placitum xxxix which authorises Parliament to make laws with respect to matters incidental to the execution of any power vested by the Constitution in the Parliament. In the Jumbunna Case the view seems to have been adopted that it would have been within power to give to trade unions and other associations constituted under the State laws a locus standi before the federal tribunal.

The kernel of what Mr Justice Sweeney recommends is based upon the validity of a law of the character which is contained in this Bill under the Commonwealth Constitution. As I have said, that is an arguable matter. Suffice it to say that the structure which he is suggesting depends upon that opinion and it is a fair enough basis to work upon. The second point is that the whole scheme of what Mr Justice Sweeney is contemplating depends upon complementary State legislation. At pages 28-32 of Mr Justice Sweeney's report he sets out the various areas in which there must be complementary State legislation. He summarises most of those provisions. In paragraph 17 at page 31 he states that there should be a system of registration whereby a registered body under the State law does not by virtue of that become a corporation. He views as the appropriate course State legislation which constitutes voluntary associations of industrial organisations and not incorporated bodies under the State laws. He states that each State system should in each case retain a power to register the bodies which are to participate in the system. He states:

I contemplate that at least the discretion of the State tribunal in determining whether to register or not would be exercised having regard to the degree of autonomy of a federal branch for which registration was sought, the branch's power to control activities within the State system, the presence of officers and like matters.

The State system should also retain ultimate sanction of deregistration of a federal branch.

I understand that that is a provision which, if not in all States, will in some cases warrant State legislation. His Honour went on:

Each State system at present provides for imposition of penalties in cases of illegal strikes or lockouts. In New South Wales this has been held to extend to strikes by members of registered unions even though they are employed under Federal awards. If this were removed and the power limited to cases concerning the working under State awards, there would in my view be no possible conflict with the Federal Act . . .

Obviously that requires complementary State legislation. Mr Justice Sweeney continues:

Since the branch will not be a legal entity it could not be sued in its own name. The remedy is to provide that the rules of an organisation shall contain a provision that if a branch is to obtain registration to enable the organisation to participate in State industrial systems then the Secretary of the branch shall be the person to sue or to be sued in matters arising under the State Act.

That again will require State complementary legislation. His Honour expressed concern about the method of enforcement of penalties. He stated:

This position can be met by the State machinery requiring as a condition of registration of a Federal branch that the organisation enter into a deed undertaking to pay to the Industrial Registrar any penalty imposed in respect of a strike or lockout under the State Act and remaining unpaid for a period of 14 days after the last day fixed for payment.

I leave aside how some organisations can square the making of a deed of that character with the policy which I understand is still the policy of the Australian Council of Trade Unions. In any event, whatever may be the attitudes of individual unions, State legislation would be required in order to enable that particular machinery to be adopted. His Honour also said that there should be a provision that the Registrar if required to give notice to and if required to consult with registrars of States before approving or certifying alterations to the rules. That again would involve in the State area some complementary legislation. His Honour stated:

Vesting all the power in respect of Federal organisations and their branches in one court would avoid the embarrassment of possible different judgments on the same issues in two separate tribunals. In the case of Federal branches which are given as I propose, non-corporate registration under a State Act, State provisions dealing with rules and their performance and disputed elections should not apply to those bodies.

I again assert that that requires complementary State legislation. Mr Justice Sweeney went on: -the power which now appears in the Act and in a number of State Acts giving power to the tribunal to make an order entitling persons to membership and requiring the organisation to admit them is another question . . . in the case of a Federal branch I think it preferable that the power be exercisable by one tribunal only and I think it quite sufficient if there is one power able to be exercised.

That again would necessiate some complementary State legislation although it would certainly involve amendment to the jurisdiction of the Australian Industrial Court. At the bottom of page 3 1 His Honour sets out in 9 paragraphs the areas in which he suggests that the respective State Acts could be amended. He excludes, of course, the further amendment which he refers to at page 36 where he recommends that the respective State Acts should be amended by providing as follows:

(a)   A power in the appropriate tribunal to demark the industrial interests under the State Act of unions registered under that Act including those with non corporate registration.

(b)   A similar power to be given to the Registrar when dealing with applications for registration.

Of course, he recommended that the Commonwealth Act should be amended in the same areas. I have taken some time, possibly tediously, to refer to those areas where the judge, upon whose report this legislation is based, indicates that complementary State legislation is absolutely essential if the scheme which he is devising is to work. It is also clear that union co-operation to take advantage of this new system must be forthcoming if the difficulties are to be overcome. I leave aside the fact that there are bound to be personality and factional differences which will prevent this scheme from operating for some time, even if it were to be accepted by both the Commonwealth and the States. The real area of doubt which I have is whether unions will be prepared to enter into a deed, a bond, to pay any penalties which were imposed upon and ordered to be paid by a non corporate State union. I feel that this is one of the areas in relation to which the normally vociferous Mr Hawke has been fairly quiet. It would be interesting to know whether he regards this particular provision as one which the trade union movement would honour and, indeed, whether any union in the trade union movement would be prepared to enter into.

The Bill we now have before us provides for amendments to the Federal legislation. That is one of the steps which Mr Justice Sweeney recommends, but these steps will be of no consequence unless the complementary amendments required to be made to State legislation by State parliaments are made. Even if State legislation is passed, unless the unions agree to amend their rules, the scheme will be unfruitful. We have not been told whether the States are prepared to pass the complementary legislation. I invite the PostmasterGeneral (Senator Bishop), who represents in this chamber the Minister for Labor and Immigration, to indicate whether he can say positively that the States will implement complementary State legislation as required by Mr Justice Sweeney. The information available to the Opposition is that at least 2 States, and probably 3 States, have positively indicated that they will not do so. But it may be that more information is passing between Ministers than is available to the Opposition. We think it is also encumbent upon the Postmaster-General, again in his representative capacity, to indicate what is the attitude of the unions. Are they prepared to fulfil their part of the arrangements which have been suggested by the Minister?

I think this is an unfortunate development. The essential reason for my referring to Mr Clyde Cameron's conduct at the outset of my remarks is that we are asked to adopt a scheme of this character when we are not told whether the other essential parties to the working out of the arrangement are prepared to do their part. It is not the proper basis upon which the Parliament should be asked to pass legislation. It may be that there are provisions in this legislation which, although they be introduced with a view to implementing a Moore v. Doyle solution, could be used for other purposes if the Moore v. Doyle situation is not resolved. I wonder whether the provisions relating to curing invalidity could not be used, at least as a basis for legal argument, which is putting it at its lowest, to frustrate those other provisions of the Conciliation and Arbitration Act which give members certain rights to see that the rules of the organisation are observed.

There are also the vexing problems which are raised by the proposed new section 142a of the Conciliation and Arbitration Act and the possibilities which are open to a member of the Commission to determine by decision of the Commission which unions shall represent which members on a State basis in proceedings before the Commission. I have not much doubt that if any attempt were made in certain union areas to exercise that power the validity of the section of the Bill which gives to the Commission that power would be taken fairly quickly to the High Court. Maybe that is an effective safeguard.

But the point which the Opposition makes is that the Minister has not played fair with the Parliament in withholding information as to the attitudes of the States to the introduction of complementary legislation and the attitudes of the unions. These matters are absolutely essential to the working out of the scheme. We are not told what will happen. For those reasons I move on behalf of the Opposition as an amendment to the motion for the second reading of the Bill:

That the following words be added to the motion: but the Senate is of the opinion that the Bill should not be proceeded with until the Minister informs the Senate

(a)   whether or not the trade unions would accept the conditions for non-incorporated registration of State branches as laid down by the honourable Mr Justice Sweeney and

(b)   of the position of the States concerning proposed complementary legislation. '

We feel there is a real need for many of the trade unions to know what is contained in this provision and to know how the scheme is going to work. We also think it is desirable that we should know whether the States are prepared to cooperate to enable this scheme to work out. We will not be opposing the second reading of the Bill, because if this great scheme falls down it will fall down because of the Minister's own approach to things and his lack of willingness to ascertain the views of the other parties. If our amendment is carried we shall, at the Committee stage, seek to postpone the first clause of the Bill with a view to ensuring that some time is given to enable the Minister to seek the opinion of the States. The Opposition proposes the amendment which I have moved and will support the motion for the second reading of the Bill.







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