25th Parliament · 1st Session
Mr. SPEAKER (Hon. Sir John McLeay) took the chair at 2.30 p.m., and read prayers.
– My question is addressed to the Minister for Labour and National Service. Has any decision yet been made on the eligibility for national service training of part time students attending universities and technical colleges? If so, can the Minister state what categories of part time students will be granted automatic deferment of training? If a decision has not been reached, when can one be expected? Finally, when will the first contingent of trainees be called up for training?
– The problem of part time trainees, whether they be technical trainees or university students, is now under consideration. I was hopeful that I would be able to make a statement about it to the House in the course of this week. If I cannot make the statement this week, I hope to be able to make it during next week.
– Is the Minister for the Army aware that on Friday last a meeting of the Students Representative Council of the University of Adelaide was held, in response to a petition by 20 students, to consider a motion stating that the American policy in Vietnam was unjustified and that the sending of Australian troops to support the United States was against Australia’s national interest? Was the meeting attended by about 700 students? Is it not a fact that the motion was lost by about 650 to 50? Does not that indicate that the average, intelligent Australian strongly supports the Government’s action in assisting the United States in its efforts to stop Communist aggression?
– I understand that such a meeting was held; that it was attended by a very large number of students; and that it was called at the instigation of students who were opposed to the Government’s decision to send the 1st Battalion to South Vietnam. I also understand that the honorable gentleman is correct when he says that a motion protesting against the
Government’s decision was overwhelmingly defeated at the meeting. I believe that this adds to the already overwhelming evidence that the Government’s decision in this respect is supported by the great bulk of the Australian people.
– Can the Minister for Territories inform me whether the Government intends to bring down, before the House rises for the winter recess, legislation aimed at broadening the powers and functions of the Legislative Council for the Northern Territory?
– Some matters are under consideration, but since they are matters of Government policy I am not prepared to say anything further. Certain information has gone forward to the Administrator. No doubt, that information will be announced later.
– Has the Acting Minister for Immigration seen Press reports of the decision by the Victorian Supreme Court that a Mr. Cheung was wrongly arrested by the Commonwealth Police? Will the Minister inform the House whether a set procedure for making such arrests is laid down by the Department and, if not, why not?
– Procedure is laid down for making such arrests. I understand, although I have not had an opportunity yet of reading the judgment, that there was power to make the arrest and also to detain this man, but apparently the judge found some slight omission in that the man was not informed of the reason for his arrest at the time. I am not sure whether this arose because he was Chinese. I would not like to comment on the judgment, because I have not seen it. As the matter is still sub judice, I prefer not to comment further now.
– Can the Minister for Labour and National Service inform me whether there are arrangements whereby conscientious objectors to military service can obtain forms for lodgment with the authorities concerning such objection? If it is possible to obtain such forms, will the Minister indicate where and when they can be obtained?
– As was made clear in the second reading speech on the Bill relating to national service training, conscientious objectors can apply to a stipendiary magistrate or similar officer for exemption from service. It is their responsibility to approach the Court. If they want guidance, they can approach the Commonwealth Employment Service.
– They have been refused help in my electorate.
– If the honorable member supplies me with specific cases, I will have investigations made and will take them up with the Commonwealth Employment Service.
– I direct a question to the Minister for Trade and Industry, and I refer to the slow delivery of superphosphate to farmers and graziers in Victoria. It has been stated that many farmers and graziers in New South Wales are obtaining superphosphate from Victorian companies as back loading on stock transports. As the New South Wales selling price is about £2 a ton dearer than the Victorian price, can the Minister say whether the companies are taking advantage of the situation by this means?
– I have been interesting myself in the whole problem of superphosphate supplies and I have asked the Department of Trade and Industry to ascertain the available facts. I have not been able to discover how much superphosphate manufactured in Victoria is in fact going into New South Wales generally and into the Monaro area, in particular, via Gippsland. However, the three Victorian manufacturers of superphosphate affirm that they are supplying superphosphate only against orders placed some time ago. They are following the practice of delivering according to a timetable to those persons who have ordered supplies, with the exception that they are tending to favour - for reasons farmers will understand - delivering to those who need superphosphate for the sowing of cereals rather than to those who intend to apply superphosphate to pastures, because it would be tragic for farmers to have to sow cereals without superphosphate. It is understandable that they should follow this practice. They are also giving priority to those who have suffered from bushfires. Where there is a shortage of rail trucks they are recognising that road transport has to be employed.
I am assured that this, broadly, is the position. More superphosphate is being manufactured in Victoria this year than last year. It was stated last year that Victoria would be in a position to send more superphosphate to New South Wales this year than it did last year, because much of New South Wales is serviced from Victoria with superphosphate and some other products. I repeat that I am unable to command in total the facts relating to the situation but I intend to keep myself as well advised as I possibly can.
– This is a matter which, under the Australian Industries Preservation Act, can be brought before a single judge of the High Court of Australia. The writ was issued, as the honorable gentleman indicated. There have been pleadings in this matter. It is now at the stage where it is ready for trial. My information is that the hearing of this matter will commence on 15th June, although I would not like to be held to that precise date because it has relation to the availability of judges of the High Court. As to the second matter raised, I think it would be improper for me to comment at this stage upon the matters contained in the pleadings.
– I ask the Minister for Health whether he has read a statement made by the Deputy Leader of the Opposition at the Labour In Politics Convention at Townsville yesterday, I understand, that hospitals should be nationalised. Li view of the fact that a great number of our major hospitals are run and controlled by the churches and that in them many thousands of nursing sisters dedicate their lives in a spirit of charity, without pay or reward, would a proposal to nationalise them increase considerably the cost of hospitalisation in Australia? Could the Minister indicate what additional cost would be involved on this score alone?
– I did read a statement in the Press today which is attributed to the Deputy Leader of the Opposition.
– Does the Minister know that he said it?
– I do not. I cannot confirm that he did actually say it, although it was reported in his name. However, we should not be surprised at this statement because it is a re-affirmation of a statement which he made previously in Sydney on what I understand is still the Labour Party’s policy - the nationalisation of the hospital system.
– It is nothing of the sort.
– This statement in Townsville, I repeat, was a re-affirmation of a statement which was made by the Deputy Leader of the Opposition. If there is disagreement in the Opposition on this matter, it is up to the members of the Opposition to resolve their own differences. However, I should draw the attention of the House to the fact that the majority of hospitals in Australia are not controlled by the Commonwealth. They are controlled by the State Governments themselves which should be well aware of this particular statement, if it was made, and if it is a true and accurate report. In addition, there is a very substantial number of hospitals run by church organisations throughout Australia, and undoubtedly, as quite a big proportion of the services given within those hospitals are given by dedicated people on the basis of low cost, it is quite obvious - although I would not have in mind the actual figures - that any move to nationalise these types of hospitals would substantially increase costs.
– My question is directed to the Prime Minister in his capacity as Acting Minister for External Affairs. Will he prepare and make a statement setting out the nature of aid, military and otherwise, given to Indonesia by Australia and her A.N.Z.U.S. and S.E.A.T.O. partners?
– Sir, I certainly will.
– I direct my question to the Minister for Primary Industry. The honorable gentleman will have seen news items from time to time indicating that individual States in the United States of America have been introducing legislation to restrict the sale of Australian meat. One recent report said that 14 States had already introduced such legislation and that legislation was pending in 10 others. To what extent is this affecting sales of Australian meat in the United States as a whole? What direction is this trend likely to take in the future? How is this likely to affect the sales of Australian meat as a whole? Are any steps being taken to overcome this problem as it exists in the United States?
– The honorable member is correct in saying that legislation has been introduced in 14 of the American States and that legislation is pending in another 10 of them. In general, this legislation is intended to discriminate against the sale of imported meats. The honorable member asked to what extent this had affected sales of Australian meat. I should think that we have been able to sell all our meat readily up to the present time because of the better price currently being paid in the United Kingdom market. Our sales to America are less than they were last year and less than the quota that the United States Government has imposed on our meats.
The Australian Government and the Australian Meat Board are concerned about this matter and as late as last month the permanent heads of the Department of Trade and Industry and the Department of Primary Industry took this matter up in Washington with the United States Federal Government. That Government is concerned also and has sent messages to the State Governments involved, expressing concern at their discriminations against foreign trade, which is contrary to United States’ international obligations and in conflict with the laws and Constitution of the United States. The United States Meat Importers Council has made strong representations to the United States Government and at the moment is considering taking legal action to contest the legislation.
– I address a question to the Minister for National Development. If, as the Minister stated last week, we have only 10 weeks’ supply of petrol in Australia, what will we use for petrol if for any reason, such as the outbreak of war, our overseas supplies are cut off?
– There are three aspects of the conservation of fuel supplies in the event of an emergency. The first consideration is the extent of our existing fuel supplies; the second is how to make the best use of those supplies; and the third is how we should go about encouraging local production. I have been informed by my Department that in order to increase our holdings of petrol from an amount sufficient to last eight to ten weeks to a quantity sufficient for four months would involve the expenditure of £34 million. The Government considered the situation and felt that because of the present world glut of petrol and the availability of tankers, we should not immediately expend such an amount of money for this purpose.
The second aspect, as I have said, is how to make the best use of the fuel we have in the event of an emergency. My Department is at present engaged in formulating a rationing scheme which could be implemented immediately if our fuel supplies are cut off. We are having discussions with the oil companies and with representatives of the State Governments on this question. I assure the honorable member that this is purely routine advance defence planning in which any Government would naturally engage.
The third consideration is that of increasing local production. I have been informed that whereas the Moonie field is at present producing about 7,000 barrels a day, wo could in an emergency step up production to about three times that amount. But we would be able to do this for only a very short time - a matter of months at most - and it would affect the total output of the field. As the honorable member knows, there are four other oil fields in Australia. It is my hope that they will be brought into production at the earliest possible moment. I am hopeful that one of them, Alton, will come into production about the end of the year. However, I have been informed by people in the industry that, if every wet well that has been discovered in Australia to date was brought into instant production in a national emergency, we could produce something like one-sixth of our total requirements.
– My question is addressed to the Prime Minister. In view of the great problems of production costs and availability of export markets presently confronting primary producers, and having regard to the vital role of these industries in the earning of overseas funds, will the Government consider seeking at the next referendum to amend the Constitution so that, notwithstanding the provisions of section 92 and other relevant sections, the Commonwealth Parliament will be given power to make laws for the organised marketing of primary products?
– The honorable member began his question with a couple of assertions with which, of course, I entirely agree. He then invited me to revisit the glimpses of the moon by having another go at a referendum which, as Attorney-General, I sponsored in 1937. He will forgive me if I say that this does not fill me with unqualified rapture. I almost lost my seat of Kooyong as a result of my activities on that occasion. I still think that the amendment we proposed was dead right. I still think it is quite absurd that provisions for organised marketing in Australia should be liable to be defeated for want of constitutional power. I assure the honorable member that my heart is with him but my memory has its doubts.
– My question is directed to the Minister for Social Services. On 24th March of this year I asked him whether his Department would conduct a national survey into poverty in Australia and I received the reply that his Department did not have the resources to conduct such a survey. I now ask the Minister whether he will set up a select committee to conduct such a survey.
– I remember quite well that the honorable member asked me about the possibility of conducting a national survey into poverty. I notice that the idea has been taken up by other people, including his leader, since that date. In this field, my Department faces many difficulties in establishing a fair means of assessment. The Economics Department of the Melbourne University is conducting a survey into this problem and it could well be that it will reach a more accurate assessment than we could. The problems of poverty have been very realistically appreciated by this Government in the past and every effort has been made to improve pensions from time to time and to alleviate the position of those who have some considerable need. The last part of the honorable member’s question, I think, is not a matter for debate or question at question time.
– I direct a question to the Minister for Health. Has the Minister seen reports of experiments in the United States of America with a drug known as D.M.S.O., which is claimed to have great healing properties without bad side effects? If the Minister has seen these reports, will he say what action he has taken to obtain further information?
– The Department of Health has received from the United States of America some reports about a drug called dimethylsulfoxide. otherwise known as D.M.S.O. This drug has been used in Australia for a number of years for industrial and chemical purposes mainly associated with industry. In the medical field, we have used it only experimentally in veterinary science. We are very interested in the reports from the United States because of indications of success in certain treatments. So far, the experiments undertaken have been very minor indeed and it is too early at this stage to obtain any indication of the ultimate value of this drug in human therapeutics. However, we shall keep closely in touch with the situation. We hope that there will be useful developments with this drug.
– My question is directed to the Minister for Trade and Industry. Has he made any recent survey of the number of restrictions imposed by agreement, franchise, licence or otherwise by overseas interests on their Australian subsidiaries or associates limiting the sale and export of manufactured goods from this country to defined overseas countries? Will he inform the House which goods and countries are so affected? In view of the acceleration in Australia’s adverse balance of trade overseas, will the Minister inform the House of the value of the trade lost by such restrictions?
– I can advise the honorable member that the Department of Trade and Industry is conducting a continuous study of the problem that he has mentioned - the problem of restrictions imposed by overseas principals on export or other activities by Australian companies. In this regard, I am under the disability that some companies are prepared to tell representatives of the Department certain facts only in confidence and not for publication. I apprehend that this is a rather unsatisfactory statement for me to make, but I am being frank. The Department has undertaken that it will publish the facts when it is able to do so. In the meantime, if the honorable member will permit me to treat part of his question as being on notice, I shall supply in writing any information that I am able to give at present.
– I ask the Minister for Trade and Industry a question relating to the success of various export incentive schemes that have operated over the past few years. Will the Minister consider recommending the further extension of such incentives to aid the export industries themselves and also to help solve Australia’s balance of payments problem?
– I can say that the successive incentives which the Government approved and which were designed to promote exports have indeed produced quite important results by increasing exports by certain companies and by bringing into the export business many companies that were not previously exporting. It is one of the functions of the Department of Trade and Industry to encourage and stimulate exports and therefore, from time to time, I have responsibility for proposing suggestions to the Cabinet. This is a continuing responsibility which it can be assumed that I shall discharge. The Export Development Council, which, as the honorable member and the House know, consists of a group of very important Australian industrialists, is the body to which the Government looks for advice in these matters. Indeed, a number of the export incentives adopted by the Government were proposed originally by the Council. I expect that, in the normal discharge of its functions, the Council will from time to time again submit to the Government proposals designed to stimulate and facilitate exports. As such proposals come forward, I shall convey them to the Cabinet for consideration.
– My question is directed to the Treasurer. Do the terms of the GoldMining Industry Assistance Act, the Gold Mines Development Assistance Act, the Sulphuric Acid Bounty Act and the Pyrites Bounty Act expire at or towards the end of next month? If so, will the Treasurer say whether it is the intention of the Government to re-enact or amend those pieces of legislation before they do expire?
– It is a fact that the legislation referred to will expire shortly, as the honorable member indicated. In recent weeks I have had some discussion with representatives of the gold mining industry, in company with officials, and at the present time I have a document awaiting Cabinet consideration which should determine the policy that the Government will be adopting in relation to these matters. Whether it will be practicable to have legislation introduced in the remainder of the current sittings remains to be seen, but if that is not practicable I would propose to make some announcement of the Government’s policy intentions before the House rises.
– My question is addressed to the Minister for Trade and Industry. I ask the Minister this question owing to the fact that his Department is interested in the development of manufacturing industries in Australia. Is the right honorable gentleman aware that there is considerable concern in manufacturing industries about the lack of taxation incentive for firms willing to undertake vital research and development activities? Will the Minister give consideration to introducing a double taxation deduction for expenditure on research and development, similar to that allowed to people seeking new export markets?
– This is obviously a matter of policy on which I cannot be expected to make a statement in reply to a question. Nor shall I attempt to do so. It is publicly known that representatives of manufacturing industries, especially the Associated Chambers of Manufactures of Australia, have been placing increasing emphasis on the need in Australia for vigorous research - not only basic research but marketing research, product research, presentation research and so on. Those people have said publicly that they hope that the Government will give them some practical support. Such representations are frequent. This is quite an important matter and the honorable member can be assured that the Government will consider, and does consider, representations from such a responsible quarter.
– I desire to ask a question of the Prime Minister as Acting Minister for External Affairs: If Australia is not at war with Indonesia and with North Vietnam is she at peace with those two countries? If not, would the right honorable gentleman be so good as to let me know how he describes the present situation?
– Mr. Speaker, it has been my experience now extending over a considerable period of time-
– Too long.
– Of course; I understand that point of view perfectly. If I were in the honorable member’s place I would say the same thing. But I have lived long enough and have been in this business long enough to know that to set down a scries of definitions is not quite the best way to handle foreign affairs.
– I address my question to the Postmaster-General. Is the Minister aware that legalised telephone betting under a totalisator agency system will commence in Sydney on 24th May? Is it reasonable to assume that this innovation will impose an extremely heavy demand on his Department for additional telephones? If so, and bearing in mind the large number of applications which still remain unfulfilled in Sydney, can the Minister give an assurance that the new demand will not prejudice the claims of applicants requiring telephones for purposes other than betting?
- Mr. Speaker, I and my Department are aware that a totalisator agency system of telephone betting is to be introduced in New South Wales in the near future. We believe, that there will be some additional applications for telephones as a result. Where there is equipment available within the exchanges and sufficient cable then the applicants will be satisfied in the order of application. Where this equipment is not available we will apply the usual priority system in relation to businesses, but again the same principle of allocating on the basis of the time of application will be observed.
– Has the attention of the Minister for the Interior been attracted to reported allegations by representatives of various political parties of voting malpractices in the recent New South Wales election? Is it reasonable to assume that similar malpractices could readily occur in Federal elections? If so, does the Minister agree that such a possibility could undermine public confidence in the electoral system? Finally, will the Minister give consideration to the introduction of a system whereby each eligible voter would be issued with an electoral entitlement card on which must be recorded the voter’s signature? Under this system the card would be presented to polling officials and suitably marked by an official and the elector would be required to make a matching signature to that on the card before a ballot paper was issued.
– In reply to the honorable member 1 should like to say that there has been no evidence of malpractices, or of bogus voting in Commonwealth elections. Furthermore, there is no evidence of any malpractices in the recent New South Wales elections. There may have been some irregularities, but this does not mean that there were malpractices in the sense that there was really duplicate voting. There have been occasions in Commonwealth elections where a person has duplicated his vote, but this has probably been because of the help of the amber liquid. There have been no cases of deliberate impersonation where somebody has tried to cast a bogus vote. Therefore, I do not think there is any necessity to alter the system which has been in existence since Federation.
– My question is directed to the Minister for Labour and National Service. As there is anxiety amongst some young people about whether or not they are likely to be called up following the recent ballot for national service training - and this is affecting their future plans - will the Minister state whether notices of call-up or of deferment of call-up have been posted in all cases? Can those who have not received notices take it for granted that they will not be included in the current call-up?
– I have had a number of inquiries relating to the call-up notices, and whether young people who have not received their notices up to the present will not be called up in the future. As so many classifications are involved, and the answer is a complex one, I thought it wise, by leave of the Opposition, to prepare a ministerial statement on this matter to be presented immediately after question time. If the honorable gentleman will wait, I think it would be far better to give the information by ministerial statement than to answer his question now.
– My question is addressed to the Acting Minister for Immigration. Is he aware of a statement reported today in the prominent and popular newspaper, the “ Australian “, and attributed to a former Israeli Attorney-General and Chief Prosecutor at the Eichmann trial that Nazi war criminals could be hiding in Australia? In view of this report will he recommend a much tighter scrutiny of intending migrants to our land so that this type of barbarous individual with such deep-rooted teachings might be prevented from entering Australia?
– I am not aware of this report, which I have not received. I should think it most unlikely that Nazi war criminals are hiding in this country. They are certainly not here in appreciable numbers.
– Why shouldn’t they come? Krupp was welcomed.
– Of course, there are some of other political persuasions who are equally guilty and probably more prominent. However, I might say that many representations I have received from honorable members opposite have been rather towards loosening our standards instead of tightening them. We will certainly keep a weather eye on this problem.
– My question is addressed to the Prime Minister. I ask: Was the statement reported to have been made by the Leader of the Opposition that there is a likelihood of an early snap Federal election just another reckless bid for publicity or is there some truth in this contention?
– I must tell the honorable member not to be over excited about this. I had never heard of the idea until I read the newspapers this morning; and when I saw the report I almost fell out of bed. I enjoyed reading it. All I said to myself was: “ Poor old Arthur; he is at it again “.
– I direct a question to the Prime Minister. If the right honorable gentleman has any tears left, will he shed one or two for the thousands of age, invalid, widow and service pensioners who are today barely existing on the base rate pension and, after the sobs have subsided, will he confer with the Minister for Social Services and the Treasurer with a view to granting a substantial increase to all pensioners in the forthcoming Budget?
– The honorable member has, regrettably, been here long enough to know that these matters are dealt with at Budget time. If he is concerned with my capacity for weeping I can tell him that I have restrained it splendidly ever since he came here.
– My question to the Minister for the Interior is supplementary to the one asked by the honorable member for Barton. If the Minister could be convinced that the likelihood of malpractice in elections by plural voting is at least possible and, indeed, unhappily at times even probable, will he consider limiting to one the number of polling places where an ordinary vote can be cast by each voter, thereby necessitating absentee votes at all other places and thus rendering plural voting impossible?
– In New South Wales there may be a possibility of duplicate voting because there is inadequate provision for postal voting in that State. The only persons who can get a postal vote in New South Wales are those who live more than five miles from the nearest polling booth. In other words, if a person is interstate or overseas he is not entitled to a vote. Therefore, it would be possible for a bogus vote to be cast by someone who knows of somebody who is out of the State. In the Commonwealth sphere, as I said before, there have been very few instances of bogus voting. I believe that the provisions for postal and absentee voting in the Commonwealth legislation are very satisfactory and I see no reason to change them.
– I address my question to the Postmaster-General. Is it necessary for the television set that adorns the supper room in Parliament House to be licensed? If it is necessary, will he ascertain from Mr. Speaker whether the set is in fact licensed? If it is not licensed, are honorable members liable to prosecution for viewing television on an unlicensed set as was a woman in my electorate who was prosecuted recently by the Department for viewing television on an unlicensed set which belonged to her father?
– One who occupied the chair prior to you, Mr. Speaker, adopted the attitude that Parliament should not break the laws which it makes. I am quite happy to give you seven days in which to decide whether the set is licensed or not.
– My question also is directed to the Postmaster-General. Is there to be any acute restriction on the installation of station equipment known as “ Sam, the silent postie” in capital cities and the larger provincial towns, or are there ample stocks of this station equipment to meet all demands? Does this type of station equipment consist entirely of Australian produced machines and materials?
– This type of equipment is being installed where we believe it is justified on an economic basis and where it can serve the greatest number of people. As I understand the position, the equipment is not completely manufactured in Australia because there would not be sufficient demand for it here to justify its manufacture, other than at a very high cost.
– by leave - All those who have been ballotted out or are exempt and the majority of those who are entitled to indefinite deferment of call-up on grounds of marriage and membership of the Citizen Forces have been notified of their indefinite deferment or exemption. Some cases where marriage or service with the Citizen Forces is still being checked have still to be notified. Those whose papers do not require further examination as to whether they should be granted temporary deferment have been notified that they will be called for medical examination. Many of these have been called and some have already been examined as to their fitness for the June intake; others are still to be called for examination for this intake. Those who have not been called within the next two or three weeks will be called for examination not later than July in preparation for the September intake.
Those who are called up for medical examination will be notified as to whether they are accepted for service or not as quickly as possible after the medical examination. The general objective will be to give one month’s notice of the actual time and place for reporting for national service. Not all of those whose papers indicate that they may be entitled to temporary deferment - for example, because they are apprentices or students - have yet been advised of their position, because their status is being checked. In short, those who have not been advised that their call-up will be indefinitely deferred or that they are exempt, or have not been advised that they will be called for medical examination, must regard themselves as still under consideration for call-up. But they will not be called up in the June intake.
I present the following paper -
National Service Call-up - Ministerial Statement, 11th May 1965- and move -
That the House take note of the paper.
Debate (on motion by Mr. Calwell) adjourned.
Debate resumed from 8th April (vide page 761), on motion by Mr. McMahon -
That the Bill be now read a second time.
.- This Bill provides for amendments to the Conciliation and Arbitration Act. The most important amendment is the insertion of proposed new section 109a, which qualifies section 109. Sections 109 and 111 are commonly known by the trade union movement as roe pains and penalties sections. The Australian Council of Trade Unions and the Australian Labour Party have been pressing for the repeal of the injunctive and contempt provisions of the Act. This Bill does not provide for the repeal of those penal provisions. Therefore, on behalf of the Opposition, I move the following amendment -
That all words after “ That “ be omitted with a view to inserting the following words in place thereof: - “whilst not declining to give the Bill a second reading, the House is of opinion that the Government should immediately introduce legislation to repeal the injunction and contempt provisions of the Act in relation to awards “.
Whilst the Bill does not go as far as we would wish it to go, it is an improvement on the existing section 109. The Bill provides that before the punitive provisions are applied there must be notification that a breach or npn-observance is likely to occur. The notification must be given without delay, unless there is reasonable cause for delay. There is provision for a cooling off period of 14 days before the penal provisions can be used. During that period the conciliation machinery provided for in the Act can be utilised by the parties.
The Conciliation and Arbitration Act has been subject to more amendments than has any other act on the statute book. There have been more than 40 amendments to this Act since it first went on the statute book. It is a most controversial piece of legislation. The fact that it has been subject to so so much amendment indicates that it has created quite a lot of discontent. In my opinion, the Minister for Labour and National Service (Mr. McMahon) commenced his second reading speech badly. He said -
He is very firm in that attitude. However, he watered down his attitude by saying -
That was an admission, if ever there was one, that the penal provisions were being used excessively by the employers. This legislation indicates that at long last the Minister has accepted the view of the A.C.T.U., namely that the employers have been abusing the use of these provisions, and have been rushing in to bring the punitive provisions of the Act into operation in a most vicious manner.
The attitude of some employers has been responsible for creating and extending disputes rather than for bringing about a settlement. One would think that the inflicting of penalties was an end in itself. Some employers have been completely ignoring the fact that the end is to settle, as quickly as possible, a dispute that has arisen. The Minister went on to say -
It is axiomatic that conciliation is to be preferred to arbitration.
At long last he has realised that the Act is, as its name implies, a conciliation and arbitration act. Conciliation comes first. It is placed before arbitration in the title of the Act and therefore is of more importance than arbitration as far as the Act is concerned. But not enough emphasis has been placed upon conciliation. People have become used to talking of the arbitration system. There is a tendency to forget that the Act is entitled the “ Conciliation and Arbitration Act”. Clearly, the placing of conciliation before arbitration must be significant. The Government, like many other people, has been ignoring that important fact. If this amending Bill is a recognition by the Government of the first importance of conciliation, there is a possibility that it will achieve something.
As we all are aware, the Act provides for conciliators and commissioners. But it does not say that the whole of the process of conciliation should be carried out exclusively by those people. For example, section 31 provides for the likelihood that the parties to an industrial dispute may themselves arrive at agreements to govern their industrial relationships. That section does not say anything about the way in which they should do that. Section 32 goes on to say that if no agreement is arrived at the Commonwealth Conciliation and Arbitration Commission shall determine the dispute. The Qantas Empire Airways Ltd. strike early in 1964 was settled by an outside mediator. It was a special arrangement and it served its purpose; the dispute was settled. Settlement should be the aim in all disputes. At that time there was some question about whether the settlement was strictly within the terms of the Act, but nobody wished particularly to raise it because everybody was pleased to see the dispute settled. It shows what can be done by mediators and other forms of conciliation as well as by conciliators themselves. However, much more conciliation is required.
As everyone is aware, conciliation means bringing the parties to a dispute into harmony so that they can get together. However, a bad provision in the Act is section 31, sub-section (3), which states, inter alia, that the arbitration authority may refuse to certify an agreement if it is of opinion that it is not in the public interest to do so. This is a shocking section which can prolong a dispute rather than bring about its settlement. When agreement is reached between the parties it should be registered and not vetoed as was done by Commissioner Hall in 1950, for example, when he refused to certify an agreement concerning locomotive enginemen on the grounds that it would be much against public interest. Who is to define “ public interest “? Judges insist that public interest should take precedence, where necessary, over the settlement of a dispute, but the judges make no attempt to indicate what they mean by public interest. One would think that the prompt settlement of a dispute would be in the public interest.
What I am emphasising is that once a dispute occurs, every effort should be made to bring the parties into harmony, and when agreement is arrived at either between the parties themselves or by a conciliator or mediator, the settlement agreement should be accepted as was done in the Qantas dispute. However, this has not always been the case, as is evidenced by the example I have given. The deletion of the injunction and contempt provisions of the Act does not mean that there is no other avenue open to the Commission. For instance, if our amendment is agreed to, other sections can be brought into play if it is considered that a union is not playing the game. Section 143 of the Act, for instance, contains provision for the deregistration of a union under certain conditions. Since 1958 industrial action has been included as one of the grounds upon which the court can act. That provision, of course, appears in section 143 sub-section (l.)(h) of the Act. There is also provision for deregistration where an organisation has wilfully neglected to obey an order of the court. This is contained in sub-section (l.)(g) of section 143. A new ground, added in 1958, provides for deregistration for continued breach or nonobservance of an award or for an organisation’s continued failure to ensure that its members comply with an award.
Prior to 1958, the court had discretion to deregister but the section now provides that upon one of the grounds being made out, the court shall deregister unless it considers to do so would be unjust. In itself deregistration is a severe punishment because it deprives an organisation and its members of the benefits and protection of an award. The award ceases to have any force or effect. Previously Mr. Justice Higgins held the view that deregistration left the award in operation but that unions could not take action for breaches of the award. The power to deregister a union should be sufficient in itself to discipline an organisation without dual punishments as are provided for in sections 109 and 111 of the Act. This, of course, is the view of the trade union movement.
Other avenues are available to the Commission. For instance, section 41 (c) entitles the Commission to fix maximum penalties for a breach or non-observance of an award. The penalty is £100 for an organisation and £10 for a member. Section 119 relates to the enforcement of orders and awards and provides for maximum penalties being imposed by magistrates in local courts. There are other sections under which action can be taken. For instance, in section 62 there is provision for the cancellation or suspension of an award if it appears that an organisation entitled to the benefits of an award has committed a breach or nonobservance of the Act, an award or court order, or that a substantial number of members of an organisation refuse to accept employment either at all or in accordance with existing awards or for any other reason. These are actually the words of the Act, and the words “ for any other reason “ are broad enough to cover a multitude of sins.
It can be seen that in the Conciliation and Arbitration Act the court possesses disciplinary powers quite apart from the vicious penal provisions of sections 109 and 111. The powers that be can even go to other acts to take action against unions. Sections 30j and 30k of the Crimes Act enable such action to be taken. Section 30 J says, in effect, that in the case of a proclamation being made of the existence of a serious industrial disturbance prejudicing or threatening trade or commerce with other countries or among the States which involves strike action in connection with the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the States, it is an offence to continue such action. Section 30K deals with threat or intimidation. That Act also refers to boycott or threat of boycott of property. So, under the Crimes Act there is provision for dealing with any emergency that might arise. Even if that were not sufficient, the Government is enabled to bring down special legislation in a situation of national crisis, as was done, of course, in the 1949 coal strike.
Surely what I have said indicates that there is sufficient power to discipline a union without the use of the offending sections 109 and 111 of the principal Act and that the penal provisions contained in those sections should be deleted. The Act provides for penalties where an organisation or person bound by an order or award has committed a breach of or been guilty of non-observance of its provisions. The court can issue an order to enjoin a person or organisation from persisting in contravention of the Act or in a breach or non-observance of an award. Failure to comply renders the person or organisation liable to a penalty for contempt of court. The penalty is a heavy fine or imprisonment. The court has power to punish an act or an omission as contempt although a penalty is provided under some other provision of the Act or under another act. As I have already pointed out, in addition the provisions of an award can be cancelled or suspended and an organisation can be deregistered.
Even though industrial misconduct may take place without the authority of the union, the union can be held responsible for action which it neither authorises nor sanctions. Under the offending sections the court can fine a union £500, members £50 and union officials £200, or they can be gaoled. This is the worst form of industrial legislation. It is psychologically bad. Better industrial relations between employer and employee are not possible while it exists. The penalties are so severe that they can send a union bankrupt or turn it into a tame cat union, about which the late Ben Chifley warned.
It is shocking to think that a union can be found guilty of an offence when a stoppage occurs without its authority. A union can be held responsible for actions to which it may be strongly opposed. Action may be taken by only a few members of a union and the union may do its best to get them back to work, but action can be taken against the union itself. This goes far beyond the accepted principles of liability invoked where penal consequences are involved and, from a strictly legal point of view, cannot be justified. A decision of the High Court in 1923, in the case of the Commonwealth Steamship Owners Association against the Federated Seamen’s Union of Australia deplored such action. Here, the High Court was hearing an appeal from a court of petty sessions where the union was charged with having committed a breach of the award in that it had aided job control by its members. The case to which I am referring is reported in volume 33, Commonwealth Law Reports, at page 297. In that case the magistrate held-
There was an appeal against that decision to the High Court. The appeal was dismissed, and the magistrate’s decision was upheld, which indicates that at that stage the High Court was opposed to the very type of legislation that appears in the Act at the present time. In his second reading speech, the Minister said -
I think it is necessary that we keep the sanctions provisions of our legislation in perspective. In fact, they have a minor place . . .
In my opinion, they should have no place. The sanctions provisions of sections 109 and 111 are not very minor when one considers the tremendous cost of them which is borne by the trade union movement. In reply to a question asked by the honorable member for Grayndler (Mr. Daly) in September of last year, the Minister gave some information regarding fines imposed upon unions. That information indicated that in 1954 the unions were fined a total of £2,950 and that in 1955 they were fined £1,250. No fines were imposed in 1956. In 1957, the fines imposed amounted to £1,000, in 1958 to £2,650, in 1959 to £3,405, in 1961 to £1,850, in 1962 to £9,150, in 1963 to £12,550, and up to 27th August 1964, they totalled £15,350. Those figures indicate that the unions paid over £50,000 in that 10 year period. But although the penalties increased, the average number of working days lost during the same period did not increase; in fact, they appear to have declined to some extent. The figures which I shall cite were prepared by the officers of the Commonwealth Parliamentary Library from particulars supplied by the Commonwealth Bureau of Census and Statistics. They show that in 1954 the average number of working days lost was .34, in 1955 it was .36, in 1956 it was .39, in 1957 it was .22, in 1958 it was .15, in 1959 it was 12, in 1960 it was .23, in 1961 it was .19, in 1962 it was .16 and in 1963 it was .18. No figures were available for 1964, and the figures I have cited refer only to disputes involving stoppages of work of 10 man-days or more. Late last year, the number of judges of the Commonwealth Industrial Court was increased from three to four. It appears that the main reason for the increase was the too heavy resort to the penal provisions of the award by the employers. In the journal of the Industrial Relations Society, issued in October 1963, Professor J. E. Isaacs, Professor of Economics at the Monash University, published this statement -
Since 1961, the Commonwealth penal provisions have been administered more frequently, more heavily and more widely than in any previous period. In the 12 years ending 1961, there were 203 applications for orders under S109 and its precursor S29. Of these, 109 orders were made absolute. These represent an annual average of 17 and 9 respectively and may be compared with 67 and 50 for 1962, in which year a larger variety of unions than usual, numbering 20, were involved as respondents in these proceedings. And the annual average for the first half of 1963 is nearly twice the corresponding figures for 1962. In the same 12 years, 50 fines were imposed under Sections 29a and 111 amounting to £13,800. In 1962, there were 28 fines amounting to £9,150. More than half of this amount was incurred by the Waterside Workers’ Federation, the rest being borne by eight other unions. And in the first half of 1963, 23 fines amounting to £9,200 were imposed.
I cite those figures, together with the others I have already given, to show that the fines inflicted on unions have been increasing in recent years. They also clearly indicate that the employers have been making too ready resort to sections 109 and 111. Of course, the legal costs involved in these proceedings have also been a very heavy burden on the unions concerned. In a deputation which waited upon the Prime Minister (Sir Robert Menzies) and the Minister for Labour and National Service, I understand the Australian Council of Trade Unions revealed that cases brought under the sanctions provisions had cost its members over £33,000 in legal expenses.
I say to the Minister that no responsible unionist will support an unauthorised stoppage. The Australian Council of Trade Unions condemns those unions which stop work without going through the correct channels. Sectional stoppages have also been condemned. Some take place without authority, and the responsible bodies take all action available to them to get their members back to work. Surely, in such circumstances, the unions and union officials should not be held responsible, but, under those sections of the Act to which I have referred, they can be held responsible.
The trade union movement believes in the right to strike, and it points to the fact that strikes are not illegal in either Great Britain or the United States of America. The awards here lay down the minimum that an employer must pay. In the United States of America and Great Britain, also, minimum standards are laid down. In the United States of America, for instance, the Fair Labour Standards Act lays down the minimum remuneration which employers must pay, but it is common for employers and employees to bargain collectively for higher amounts than the minimum. Strike action is often resorted to in order to make the employers pay more. It is part and parcel of the bargaining process. It is accepted as such and is not illegal. Collective bargaining is now being resorted to here. Once an award has been made, both sides, in many cases, accept the decision of the court as being the minimum payment, and then proceed to bargain for the payment of some amount over and above what the award provides. The President of the Commonwealth Conciliation and Arbitration Commission has referred to this as the “collective bargaining area”. There is a big section of the trade union movement which believes that arbitration should be jettisoned and that collective bargaining should be resorted to.
The Commission’s influence has been weakened by the imposition of heavy penalties under sections 109 and 111 of the Act. It is extremely doubtful whether the workers have made greater gains by means of the arbitration system than they could have made by collective bargaining. Benjamin H. Higgins, who wrote “Wage Fixing by Compulsory Arbitration “, questioned whether the system of arbitration in Australia had been responsible for giving the workers any benefits they could not have got by their own strength and by collective bargaining. He said -
There is no evidence that the arbitration system has raised labour’s share of the national income over the past 20 years, or that it has succeeded in obtaining for Australian labour a higher share of national income than is earned by workers in other countries with a similar degree of economic development.
He also said -
Many Australian economists and legal scholars feel that the system now operates more to the favour of employers than employees. The awards of the court tend to lag behind increases in the demand for labour or in the bargaining power of trade unions.
That is true. More than anything else the suspension of quarterly cost of living adjustments by the Arbitration Court in 1953 helped to weaken the workers’ faith in arbitration. There is a certain amount of one.sidedness in our method of controlling wages. The Government believes that the price of labour should be controlled and all the force of our legal machinery is used to prevent the workers from putting their own price on their labour. The Unions have to go to the arbitration tribunals, argue their case before them and support their case by evidence. The employers present their case in opposition to any increase. The workers have to abide by the decision of the tribunal. But what happens then? The employers increase their prices to cover the increased cost of wages. They can do this at their whim and without referring to anybody else. Decisions are arrived at in private, without evidence having to be adduced to support them and without a case in opposition being presented. Particular firms often combine with others selling similar products and collectively they fix the prices of these articles.
The Arbitration Commission, in its 1964 basic wage case decision, emphasised the fact that there is no control of incomes other than those received by persons whose employment is covered by awards of the arbitration tribunals, and it said that there was no overall authoritative control of prices while there is, of course, tight control of the basic wage and other wages. So we find that increases obtained by workers to offset already increased costs can be swallowed up immediately by increased prices imposed by employers.
This Government, which is so insistent on the workers selling their labour at controlled prices, should seriously consider following the lead of the United Kingdom Government, which is now insisting on prices being increased only after such increases have been proved to be justified. There is a lot in what Higgins said when he claimed that the system operates more to the favour of the employers. Employers, as we all know, were once hostile to arbitration, but now they wholeheartedly support it. No wonder they support it when they can immediately recoup any increased wages costs by increasing prices at their whim, and when they know that the awards of the court tend to lag behind increases in the demand for labour or the bargaining power of the trade unions.
Evidence adduced in the 1965 basic wage case showed that the average earnings of Australian workers increased in the period from 1959 to 1963 by only 12 per cent. Company income increased from £595 million in 1957-58 to £771 million in 1962-63, representing an increase of 29.5 per cent. The “Monthly Summary of Australian Conditions” published by the National Bank of Australasia Ltd., in the issue dated 13 th November 1964, gave information about increases in production per worker during this period. On page 3 we find the following information -
Despite the setback which the 1961 recession gave to manufacturing industry, production per worker rose from £1,415 in 1955-56 to £2,055 in 1962-63. After allowance is made for price changes, it would appear that there has been a rise of approximately 40 per cent, per worker in real output over the seven-year period to 1962-63. Using a comparable measure, this gain contrasts with an increase of something less than 10 per cent, during the previous seven-year period from 1948-49 to 1955-56. Growth in value of manufactured goods slowed down after 1960-61, but there is no doubt that 1963-64 figures will show a return to the fast growth of the late 1950s, and, with labour supply now short, it seems certain that actual output per man will show a further marked advance during the present financial year.
Colossal profits continue to be made. These profits all come from the same source, the national income. However, while wage and salary earners have to prove their claims for increases before the Arbitration Commission, other persons take huge sums by way of profits and interest charges from the national income without having to justify their actions to anyone. No charge is ever made that companies are taking too much from the national income and thereby -endangering the economy and causing production and living costs to rise. Is it any wonder that the workers become dissatisfied and disgruntled and threaten strike in order to get their wrongs righted? Workers have a right to complain about the time lag in having their grievances heard and redressed. In 1961 the Commission increased the basic wage by 12s. a week to restore the June 1960 purchasing power of the wage. Until June 1964 the basic wage was pegged at its June 1960 level despite increases in the cost of living. The basic wage was then increased by 20s. a week, which restored to it the real value that it had in 1953 when automatic adjustments were abolished. Since that last increase of the basic wage the time lag has operated again and the basic wage has once more fallen behind in purchasing power.
I repeat that in Great Britain and the United States of America, whilst minimum standards are set down, collective bargaining is accepted as a means by which higher standards are established, and the strike weapon is accepted as part and parcel of the bargaining process. The strike weapon is not illegal in those two countries. Neither is it illegal here. The Commonwealth Conciliation and Arbitration Act does not prohibit strikes. It did until 1930 when the prohibition was removed. It is true that the Commission has power to include in its awards a ban on strikes, and of course that power is invoked from time to time. But we cannot expect a system of industrial arbitration to eliminate entirely strikes and other forms of direct action. If anyone believes that arbitration can do this he is attributing to the arbitration system a function that it cannot possibly fulfil.
The laws of the land are much more adaptable to the settlement of disputes between individuals than to the exercise of compulsion over powerful organisations such as trade unions. In the latter case powerful sections of the community are involved. A huge majority of the people accept the fact that the common law and criminal law courts enforce laws with which the people themselves agree. The situation is different in the field of industrial conflict. There is no set standard of what is fair, what is reasonable or what is just. The arbitration system deals with questions on which the community as a whole is divided into two camps, with fundamental differences between the two opposing groups. Workers and employers have their own views as to what is reasonable or just. There is no doubt about the value and- importance of our conciliation and arbitration system, but it is ridiculous to think that it could usher in a reign of peace in industrial relations. No one would deny the value and importance of international law; but conflicts arise between states which are so severe that all observance of the law is swept away.
Hundreds of issues that arise are successfully settled by our arbitration courts, but they cannot settle all of them. The system would be strengthened if the Government would accept the reality of the situation and realise that there are issues and conflicts so acute that no court could hope to impose an acceptable solution. The Mount Isa dispute is a case that comes readily to mind. The arbitration tribunals are not likely to make decisions that result in too great a departure from existing conditions, practices or standards. Their aim is to stabilise, not to disturb. This point was made by Mr. Justice Higgins when he said -
The Act requires me to “ prevent “ as well as settle industrial disputes, and I have to see to it that I do not create other disputes in settling this - that I do not loosen a dozen nails by driving in one.
He was saying in effect that in settling an industrial dispute he could not go outside decisions that had been reached in other disputes of a similar nature.
Since the main objective of the system is peace and stability, it is not free to seek solutions that are absolutely just. It tries to find solutions that will work, that the parties are willing to accept and that will keep the wheels of industry turning smoothly. It is not a system that can wholly replace resort to direct action or political struggle. After all, most of the big industrial gains by the workers have been obtained not through the arbitration tribunals but through governments that have been sympathetic to the reasonable and just claims of the workers.
The unions have often had to use the legislature as an alternative to arbitration. For instance, the reduction of working hours from 48 to 40 was only partly due to arbitration. The reduction was first made by Labour Governments. Long service leave was first introduced by Labour Governments and the provision was then adopted by the arbitration tribunals. Equal pay for work of equal value was recently granted by the New South Wales Government but has not yet been adopted by the arbitration tribunals. I have no doubt that in time it will be adopted. The lead has already been given by a Labour Government and the Commonwealth Government is lagging badly by not ratifying the convention of the International Labour Organisation which provides for equal pay for work of equal value.
In the Eighth Annual Report of the President of the Commonwealth Conciliation and Arbitration Commission, the President drew attention to jurisdictional difficulties. He said -
These stoppages or threatened stoppages are generally of the sudden “flare-up” variety where the community and the employers and unions immediately involved need the urgent provision of intermediary action in order to get a speedy resumption of work or to prevent a threatened stoppage taking place. In other words in the main this type of dispute is of the “ real “ rather than the “ paper “ variety and is perhaps the more important because of this. Nevertheless the Commission may not have jurisdiction under the Constitution and the legislation to deal with it because of its confinement within one State or indeed one Undertaking.
If the Government were as concerned as it makes out it is to prevent stoppages of work, one would have thought that action would have been taken to remove the constitutional shackles that bind the Commonwealth Conciliation and Arbitration Act. Section 51 of the Commonwealth of Australia Constitution Act provides -
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: - (xxxv.) Conciliation and Arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.
This means that, before action can be taken under the Commonwealth Act, an industrial dispute must exist and if it does exist it must be created. Furthermore, it must be an industrial dispute extending beyond the limits of any State. The trade union movement has persistently agitated for the removal of the constitutional fetters that trammel the Act, but so far the Government has turned a blind eye. The Joint Committee on Constitutional Review supported the trade union movement and recommended that section 51 (xxxv.) be repealed and that a new section be inserted in the Constitution to provide as follows -
The power to make laws dealing with terms and conditions of industrial employment should include power -
– Does the honorable member agree with that?
– Yes, certainly I do. I want to get rid of the constitutional shackles that tie down our arbitration system, but apparently the Government does not want to do so because it has not taken any action. If the Commission had power to act quickly, many of the stoppages that take place could be prevented. Action could be taken even if a stoppage took place in a particular undertaking and it would not have to wait until a dispute extended beyond the borders of any one State.
I ask the Minister to accept the amendment that I have submitted on behalf of the Opposition. I ask him to support a move to repeal the injunction and contempt provisions in sections 109 and 111. I repeat and emphasise that there will still be power under the Act, and indeed under other acts, to take action against unions or members who commit a breach of an award or order of the Court or who act contrary to the provisions of the Commonwealth Conciliation and Arbitration Act. I repeat that the punitive provisions are the worst form of industrial legislation. They are psycho- Mr. £. James Harrison. - I second the logically bad and better industrial relations amendment and reserve my right to speak are not possible while they exist. later.
– Is the amendment Debate (on motion by Mr. Chipp) seconded? adjourned.
– I move - [Customs Tariff Proposals (No. 38).]
Mr. Speaker, Customs Tariff Proposals No. 38 which I have just tabled provide for the imposition of a temporary duty of 17i per cent, ad valorem on air cooled, four cycle internal combustion piston engines with horizontal driving shafts, not exceeding 10 brake horse power. The temporary duty which will operate from tomorrow, 12th May 1965, is in addition to the normal duties and is in accordance with the recommendation of the Special Advisory Authority, who had been requested by the Minister for Trade and Industry (Mr. McEwen) to conduct an inquiry into claims by the Australian industry that the normal duties on these goods did not provide adequate protection and that the industry’s competitive position had deteriorated because of reductions in prices of imported engines and increases in local costs of manufacture. In recommending that urgent action be taken to protect the Australian industry, the Special Advisory Authority expressed the view that the rate of duty recommended should be sufficient to hold the present position until the long term protective needs of the industry have been examined by the Tariff Board. The question of long term protective needs has been referred to the Board. I commend the proposals to honorable members.
Debate (on motion by Mr. Crean) adjourned.
– I present a report by a Special Advisory Authority on the following subject -
Aircooled, four cycle, horizontal driving shaft, internal combustion piston engines, not exceeding 10 brake horse power.
Ordered to be printed.
Debate resumed (vide page 1311).
.- Mr. Speaker, I regret that I must accuse the honorable member for Stirling (Mr. Webb), though in the most friendly way, of having taken 45 minutes to start an argument in this place merely for the sake of starting one. I should think that this Bill, which is to amend the Conciliation and Arbitration Act, would have done credit to any Labour government at any time. It represents an attempt -I believe it is a very sincere and clever attempt - to assist the trade union movement with its problems of conciliation and arbitration. I would also have expected the honorable member to say something about the Bill itself. However, he talked very little about it and decided instead to launch into an amendment to the motion for the second reading, the effect of which is to criticise the Government for the existence in the Act of certain penal provisions.Foralmost the entire 45 minutes of his speech, the honorable member addressed himself to those penal provisions.
May I briefly repeat some extracts from the second reading speech made by the Minister for Labour and National Service (Mr. McMahon) which will illustrate the purposes of this Bill? He said -
This Bill deals only with a situation where a breach of an award has not occurred. If one side or the other has decided, in effect, to take the law into its own hands it must take the consequences In contrast, if there is a claim with the threat of a strike or some other form of direct action but not an actual breach, this Bill will apply. It says in effect that the Commonwealth Industrial Court -
This is the Court about which the honorable member for Stirling complains because he says that it has fined unions too heavily, and so on - cannot commence to hear an application for an injunction against somebody from committing a breach or non-observance of an award unless it is satisfied that three conditions have been fulfilled.
The first condition is that the Conciliation and Arbitration Commission has been notified that a breach or non-observance is likely to occur. The second is that that notification was given without delay or, where there is delay, the Commission has certified that there is reasonable cause for it. . . .
Without going into details, I just point out that the third condition is that a period of 14 days must elapse before the Commonwealth Conciliation and Arbitration Commission can consider the dispute before it. In other words, the Government is now saying that, instead of the former system under which, if a dispute was likely to occur, one party immediately put it before the Commission for hearing, one of them should notify the Commission that a breach of an award is pending and then both parties must wait 14 days before proceeding. This period of 14 days has been described rather aptly as a “ cooling off period “ in which both parties can get together. I would have expected the honorable member for Stirling to commend this Bill. He talked a lot about the system of conciliation and arbitration not being the be-all and the end-all in this matter. I thoroughly agree. Surely he acknowledges that this measure will contribute to the encouragement of conciliation and the discouragement of arbitration.
The Bill also contains certain provisions which will make it less expensive, in certain circumstances, for unions to be represented before the Commonwealth Industrial Court. The honorable member for Stirling can correct me if I am wrong, but I suggest that he did not mention that. The Bill provides that, unless the Court otherwise determines, junior counsel only will be allowed to appear before it under certain circumstances. This provision is a direct result of representations from the trade union movement. The movement told the Government that a fine, whatever may be the amount, was bad enough, but that costs of representation by senior counsel hurt even more. The Government has favorably received those representations and, in this measure, it seeks to alleviate the burden on trade unions engaged in sincere actions before the Court by making provision that will lessen the costs incurred.
I believe that my remarks will adequately answer the general criticisms of the Conciliation and Arbitration Act made by the honorable member for Stirling. But I think that, at the outset, I ought to comment on certain statements that he made, some of which were rather strange. If I did not know him better, I would have said that they were made by somebody who had little knowledge of industrial relations. The honorable member said that sanctions are not necessary and that deregistration is enough. Surely he does not believe this, Sir. Experience has shown, for example, that the deregistration of the air pilots’ organisation did not have any inhibiting effect on their activities in the industrial relations field. Indeed, I venture to suggest that this action had a contrary effect. Does the honorable member for Stirling suggest that if, for example, we deregistered the Waterside Workers Federation of Australia, that action would have an inhibiting effect on that union? Does he suggest that, by deregistering any union and taking it out of the ambit of the conciliation and arbitration system, we shall improve industrial relations? I suggest that such action would have precisely the reverse effect.
The honorable member spent a lot of his time on the theme: Let us concentrate on conciliation and forget about arbitration. 1 entirely agree. But how can he say that in one breath and then, in the next, advocate deregistration as a means of achieving the objective? He holds out deregistration of a union as a suitable punishment. But once a union is deregistered, contact with it is lost. When that happens, the days of conciliation are gone. Conciliation is no more once a union is put out of reach in that way. The honorable member then went on to say that the Crimes Act represented another weapon that the Government had at its command. Here, he was referring to section 30 of that Act. 1 suggest that he does not approve of that Act, although he did not say so. He went on to say that surely the Crimes Act was enough and that sections 109 and 111 of the Conciliation and Arbitration Act were not needed. Does he not know that the Crimes Act has been used extraordinarily sparingly by this Government? If I may venture my opinion, 1 should like to say that that Act has been used far too sparingly by this Government. The honorable member for Blaxland (Mr. E. James Harrison), who is an expert in these matters, can correct me if I am wrong. I feel fairly certain that the Crimes Act has not been used at any time in the 1960’s. As far as I can remember the last time it was used was in the middle or late 1950’s. The honorable member for Stirling knows full well that while we do have fine words in section 30 of the Crimes Act it is extremely difficult, particularly in times of peace, to bring any sort of proof to a court of law to convict anybody under the Act as it stands.
The honorable member also said that sanctions on certain trade unions were too heavy. He said that these sanction provisions were turning unions into tame cat affairs. If I could be persuaded that the Waterside Workers Federation, the Seamen’s Union, the Amalgamated Engineering Union or other metal trades unions that have been on the receiving end of most of these fines were behaving like tame cats I should hate to see a wild one. As I said a moment ago, to the extent that a trade union can act responsibly, this Bill means that costs facing that union will be less.
The last point that the honorable member for Stirling made with which I want to deal specifically was that he desired this Parliament to gain greater powers in industrial matters. The honorable member quoted from the report of the Joint Committee on Constitutional Review. I interjected and asked him whether he agreed with the Committee and he said: “ Certainly I do.” Again I wonder if he realises what he is advocating. I wonder if he wants the sum total of the recommendations of the Joint Committee incorporated into the Constitution.
– The Committee consisted of representatives from both sides of the Parliament.
– Yes, I concede that and I hope the honorable member will allow me the privilege of disagreeing vigorously with my colleagues who were on that Committee, and I do disagree with them on this aspect of the report. Assuming that one could achieve the miracle of getting the proposal that the honorable member for Stirling has made through a referendum and into the
Constitution - and I suggest it would be a miracle - I wonder if the honorable member realises that this Parliament would then have the complete power and reponsibility to determine not only wage levels of all workers in the community but also working conditions as well. This would be the task of the politicians - either ourselves or honorable members opposite should they, by some freak accident, find themselves here on the government side. We would be the arbiters of wages, long service leave, recreation leave and other such matters.
– We are arbitrating on long service leave now.
– The honorable member for Port Adelaide interrupts me. I wonder whether he would have as much composure as he shows today in Opposition if he were on this side of the House one month before an election and the unions in his own electorate got together and brought a deputation to him asking that the basic wage be raised by £3. Of all the problems that a government has to solve there is none more fascinating, more complex or more difficult than the problem of industrial relations because in any industrial trouble, as honorable members on both sides of the House know, there is an area of human conflict. It is not a question of a man versus an ideology, a man against a system, or a man against some mysterious abstract thing. It is a complex field in which man is against man. On the one hand there is an employer. Whether the employer is a sole trader, a partnership or a corporation, the principles are the same. There is a man representing the equity, the proprietors or the entrepreneur, and this sort of person has invested certain things in the business. He has invested his money, perhaps his life’s savings. He has invested many years of his life in building up his business, perhaps at some cost to his mental and physical health. Perchance he went through years of study at university or technical college to fit him for his career. He has taken risks. He has risked his capital and his health to achieve for himself a certain standard of living. If he does not equate costs and prices he makes a loss and if he continues to make a loss he goes bankrupt. Therefore, this man has a vested interest in the prices he pays for his resources, both material and labour.
On the other hand in this contest of man against man there is the employee. He is the man selling the most precious gifts he has - his labour and his skill. These may be the only things he has to sell to earn a livelihood for himself and his family. They are precious to him and, of course, he wants the best possible price obtainable in return for his sweat, skill and labour. The whole question is how shall he be rewarded; how much should the employer pay? There are several ways this can be assessed.
Honorable members will remember that after the industrial revolution in the late 19th century near-anarchy prevailed in this field. There was a glut in the work force. There were unscrupulous employers. People were flocking to the cities to work in factories and often the labour force was treated as less than human by the employing force. Anarchy prevailed, except for the old law of supply and demand. The only arbiter of what a man’s labour was worth was the employer and he doled out what he thought was the lowest he could get away with. As civilisation progressed man became more humane towards man and there are now very few countries where at least some sort of system of equating morality with needs is not followed. In some countries there is a system of collective bargaining. Here again the law of supply and demand operates, but certain minimum standards operate.
There are some people who advocate that wages should be determined by a productivity index. Perhaps one of the most valuable pieces of work done in this regard is that by Professor Downing and Professor Isaac of the University of Melbourne. They have suggested that it is useless measuring past productivity and that the only worthwhile thing to do is to measure what the increase in productivity is to be in the future. If, say, the estimated annual increase of productivity is 3 per cent., then perhaps 2 per cent, should be added to the wage each year. In this way, they say, at least the work force would be given an opportunity to share in the growth of productivity in the country now rather than later.
– On a percentage basis?
– Yes. An increase of 2 per cent, of the wage level each year. After a two or three year period the matter could be referred to some court or abitrator to determine whether the 2 per cent, per annum was high enough or not. I want to say very briefly that I vigorously oppose that sort of thing. Much as I admire Professor Downing and Professor Isaac, I would refer any honorable member who would entertain such a system to the excellent publication recently put out by the Treasury on the measurement of productivity. I think that scholars who look with stars in their eyes at productivity as being something which can be measured with a slide rule will be disillusioned if they read this excellent publication.
I want to make some passing comments on the situation we now have in Australia. We are stuck with a conciliation and arbitration system. I am not completely persuaded that this is the best system but I would like to make one or two comments about it. One criticism I have is that to some extent it lessens the willingness of the parties to agree. When an industrial dispute occurs the union representatives and the employer representatives are brought into contact and they try to come to some agreement. This is conciliation. If they know that when they cannot agree, they still have the court or a conciliator to go to - someone to make a decision for them - I believe that they may not be impelled to make a hard enough effort to arrive at a compromise. While this system, in fact, does spell out conciliation, one aspect of it militates against conciliation to a degree. Poor union leaders, or union leaders of lesser quality, who obtain a bad result from a tribunal can blame that tribunal. They can say, in effect, “It was not my fault; I tried hard enough for you. It was that one-eyed tribunal which did the wrong thing.” In that sense the system could be improved.
One basic criticism of the system - the honorable member for Stirling touched on this - is that although we have a competent authority making decisions on an extraordinarily important factor in our economy - the level of wages - yet we have also several other uncorrelated and uncoordinated organisations making decisions. While the Commonwealth Conciliation and Arbitration Commission might be bringing down a new basic wage, at the same time on the same day in another city the Tariff Board might be making a decision on some other fundamental matter affecting our economy, and the Reserve Bank, in another city, might be making a decision on something else and so it goes on.
I have wondered sometimes at the competency of legal men to be arbitrators on the state of the economy. I am not one of those who necessarily knocks legal men, but I do not think that just because those who sit on this tribunal are learned judges it follows that they are oracles who know everything about everything. I would have thought that at some time some consideration might be given to having men on the tribunal who are, perhaps, experts at absorbing the sore of detailed and complex economic information which the Commission must absorb. I am very critical of the type of advocacy allowed in the Commission’s proceedings. I will not say very much about that at this stage, but I am appalled at some of the advocacy that is allowed - the extraordinary leniency that is allowed to advocates before the Commission.
Finally - and perhaps this is my strongest criticism - because of certain factors, not the least of which is the way in which advocates have been allowed to behave, economists will no longer appear before the Commission. You have this extraordinary situation: A Commission has been set up, and one of its criteria is to determine a basic wage on the capacity of industry to pay. That is the mysterious puzzle which the Commission has to solve; yet we have what might be called a black ban put on the Commission by the economists. The economists say, in effect, “ Sure, we will write you a thesis or an article, but we will not go into the court and be crossexamined”. All of us know that that is true.
There are several ways in which the Commission could overcome this problem, and this sort of thinking is not original; it has been advocated by men in the legal profession, many of whom have appeared before the Commission and know of these matters. Several courses are open to the Commission, but at least it could do this, and the suggestion has been made by eminent people: Since it is debarred from hearing this sort of expert evidence, why cannot the Commission organise some sort of symposium in which the economists could take part? Recently the honorable member for Melbourne Ports (Mr. Crean), the honorable member for Mackellar (Mr. Wentworth) and myself were honoured to attend a one-day seminar at the Institute of Applied Economics at the Melbourne University on a particular economic subject. There were about 15 men in the room and all day we did nothing but talk about the economic and social aspects of a certain type of taxation. It was a fascinating time. Anybody looking on might not have gone away with a solution to any particular problem, but he would have learned more than by reading pages and pages of written evidence put to him by economists. In leaving the subject of the Commission I sum up by saying that I doubt whether legal men, including judges, necessarily are competent to arbitrate on economic matters, but my doubts become even stronger when those legal men debar themselves from hearing expert evidence in the way I have indicated.
For better or worse we have this system whereby parties in dispute agree to appear before an umpire. The ultimate logic of this system demands that if you have an umpire, you must obey his decision. If not, you have anarchy. If the rules are not obeyed, some penalties must be imposed. For the benefit of honorable members opposite might I be permitted to give an analogy from the world of sport, a subject which no doubt appeals to all Australians? Some sports have no rules at all. Unkind people from Queensland and Brisbane have sometimes said that about Australian Rules football. If I am permitted to quote the historians, Australian Rules football commenced from Irish football-
– There are no rules in Irish football.
– That is right. It commenced from Irish football in which, in fact, there are no rules. The more enlightened southern people of this country decided that this was not basically a bad game. They applied rules to it and evolved the game of Australian Rules which I am sure the overwhelming majority of members in this House would vote is the greatest game in the world. Watch two teams run out on to a field. They know the rules and an umpire is appointed to apply those rules. Is it feasible that one team will obey the rules while the other will be allowed to elbow, kick, trip and punch and go unpunished? The Marquess of Queensberry invented some rules for another famous sport. Would anybody in his right mind suggest that one contestant must be forced to obey the rules while another can gouge and indulge in all sorts of foul play? In the sport of swimming, where sanction provisions are not unknown to its administrators, would anyone say that if you have a breast stroke race and one competitor out of the eight indulges in freestyle swimming, he should be allowed to go unpunished? The thing is just too ludicrous.
I leave the analogy of the sporting arena and move to the realm of criminal law. What is the use of having a crime such as bigamy on the statute book if a man who commits bigamy is allowed to go out, after conviction, and marry again. I do not know whether there is a crime called trigamy What is the use of having a crime on the statute book if there is no penal provision for a person who breaks the law?
The need for sanctions, strangely enough, was recognised by a former Labour government in 1947. I have not time to go into the history of this, but the honorable member for Stirling neglected to mention that in those days the Labour Government that was in office saw fit to bring in provisions essentially the same in principle as we have today.
– The legislation set the standard for the establishment of the Industrial Court which permits the action that we have today. One has to ask oneself one or two questions. Is the need for penal provisions less today than it was in 1947? I submit that it is not. The other question that one has to ask oneself centres round whether we may have a different kind of Labour Party in this House today from the one we had in 1947. There are also sanction provisions in the legislation of the six States of Australia.
What are the provisions of sections 109 and 111? The honorable member for Stirling painted a picture which showed these provisions to be dreadful things and an imposition on unions. Let me describe briefly what happens in the case where an award is in existence and the parties have gone to an arbitrator or an umpire. Th umpire says in effect: “These are the set rules.” One party breaks those rules. Section 109 provides that if rules set by the umpire are broken the aggrieved party can go to the Industrial Court and ask that the offending party be ordered to comply with (he award. Then the Court gives a decision, having decided whether the party has been aggrieved or has not been aggrieved. But after that the aggrieved party has to take another step under section 111 before a penalty is imposed. It is at that stage and at that stage only that these “ monstrous “ penalties mentioned by the honorable member for Stirling are imposed.
For the information of honorable members I cite the record of one union, the Waterside Workers Federation of Australia, in respect of man hours lost through unauthorised stoppages during the past five months. In November last year 128,000 man hours ware lost, in December 48,000 were lost, in January 25,000 were lost, in February 84,000, and in March 182,000 man hours were lost. This is one union which says: “ To heck with the umpire; I do not care “. But then the honorable member for Stirling turns round and says that the penalties imposed on that union are so heavy as to be inequitable. The penalties imposed on the Waterside Workers Federation are, for example, £500. The Federation has 22,000 members, and if the honorable member does some quick arithmetic he will soon work out that a fine of £500 works out to about 5d. a member. I agree with the Minister for Labour and National Service (Mr. McMahon) who said -
Sanctions are an essential part of our arbitration system. . . . The Government has no intention of removing them.
At the same time, this Government wants reliance on the sanctions provisions only as a last resort and will forever put the principle of conciliation before arbitration.
– The honorable member for Higinbotham (Mr. Chipp) began by chiding the honorable member for Stirling (Mr. Webb) for not touching upon the Bill, but he then set off on a programme that he believes supports his own case for the retention of i sanctions. The honorable member was critical of the type of evidence put before the Commonwealth Conciliation and Arbitration Commission to determine basic wage cases - and I presume disputes about margins also - but he did not look at the situation realistically in view of the measure that was introduced in 1956. Towards the end of his remarks he tried to say that the Labour Government in 1947 introduced a bill which contained sanctions similar to those contained in the measure that we are now discussing. I say to the honorable member, with the greatest of friendliness, to use his term, that his remarks show that he did not at any stage study the impact of what was done in 1947 compared with what was done in 1956. Strangely enough, it is that very feature that I propose to analyse today.
Conciliation and arbitration in Australia in 1965 is so closely related with industrial peace and the national economy that it is time that the Government examined the 1956 legislation in the same way as the Government in 1956 examined the 1947 legislation. I should have thought that today we would be analysing what has happened since 1946 and deciding whether the 1956 legislation has given us an array of successes in industrial relations in Australia which would enable us to say in 1965 that although the legislation has not introduced the great millennium, it has achieved a great step forward and we are satisfied with our present conciliation and arbitration system. I should have thought that we would have been able to say also that the Bill now before us is intended to modify the penal provisions and that we hope that, as a result, some improvement may develop in future conciliation and arbitration. Again using the friendliest of terms, I believe the honorable member for Higinbotham was greatly in error when he attempted to relate conciliation and arbitration to Australian Rules football. The umpire in this kind of issue is different from the football umpire; he is dealing with different rules and with a different kind of situation every day of the week. The umpire for Australian Rules football, if he has rules, is given a set of rules that apply from one season to the next, unless those rules are altered by a board of control; but conciliation and arbitration, to function as it must function if it is to succeed, has to meet circumstances which change day by day and week by week. That is one reason why the Opposition has moved this amendment.
I propose to state to the House reasons to show that the 1956 legislation has not achieved that for which it was intended. In 1965 we are in a much worse state in relation to the 1956 legislation than we were in 1956 in relation to the 1947 legislation. This Bill is designed to amend the Conciliation and Arbitration Act in two main respects, as was mentioned by the honorable members for Stirling and Higinbotham. It is proposed, first, to provide for a cooling off period of 14 days; and secondly, to modify legal expenses that may be incurred in industrial proceedings. Before I deal with those subjects I should state that I support the amendment that has been moved. Having regard to what I propose to say later, I am very pleased to see the AttorneyGeneral (Mr. Snedden) at the table because I believe he is one man on the Government side of the House who understands the legal ramifications of our conciliation and arbitration set-up. I have crossed swords with the honorable member many times in this chamber on industrial matters, but I respect his views and I believe that he sometimes listens to the views that I express on industrial matters. For reasons which I shall state later, I believe that if it became necessary after the boilermakers’ case to set up a jurisdiction to deal with contempt proceedings which occurred as a result of failure by somebody at the conciliation and arbitration level, it would have been much better if the provisions of part V of the Act had been put into a separate act and if the tribunal had not been called the Commonwealth Industrial Court. For reasons which I shall state later we get a negation of this title in the Act. In Part I of the Conciliation and Arbitration Act 1904-1961, section 1 states -
This Act may be cited as the Conciliation and Arbitration Act 1904-1961.
Section 2 states -
The chief objects of the Act are -
To promote goodwill in industry;
To encourage conciliation with a view to amicable agreement, thereby preventing and settling industrial disputes.
Then in part V of the Act we have the section about which we are now complaining. The section to which I refer is wrong in principle, for reasons that I hope to be able to show, and it has worked against the very thing that the honorable member for Higinbotham talked about - the need for understanding and industrial peace between employer and employee. From 1956 until 1965 the provision has given to those people who do not believe in conciliation and arbitration a battering ram which is becoming more powerful year by year. The present Commission was very disturbed by this provision when it was enacted in 1956 and said that the Commission and the Court were so closely related that the difference between them could not be defined in the ordinary mind.
I now propose to deal with the cooling off period of 14 days, or such other time as the Commission may determine. This provision will be of some value only if the parties know that in the view of the Commission there is scope for a real settlement by conciliation. The unions, on the one hand, and the employers, on the other, becoming aware of this view of the Commission are more prone towards a settlement than if they believe a dispute to be a head-on collision. It is at this level that the Conciliators have performed their tasks very well, but that system has its repercussions also, as I shall show later. This Bill does not go so far as the trade unions would like. The policy of the Australian Council of Trade Unions realistically strives for the elimination of the penal provisions for contempt. That is what the honorable member for Higinbotham fails to understand. If honorable members who are to speak later read section 41 of the 1956 Act they will understand the approach of the Labour Government to the question of award breaches and fines which are imposed for breaches of awards and for contempt. The honorable member for Higinbotham said that the 1947 legislation was somewhat akin to the 1956 legislation. Apparently he just does not understand the difference between imposing a fine for contempt and imposing a fine for a breach of an award. If honorable members examine section 40, which was inserted by the 1951 Act - I have not time to analyse it - they will see what I am speaking about.
In contrast with the policy of the A.C.T.U., the Government - or at least the Minister for Labour and National Service (Mr. McMahon) - insists upon retaining the present position. In fact, the Minister made his position quite clear in his second reading speech, when he said -
That statement was quoted earlier. I express the view that the use of the word “ sanctions “ in industrial matters is, to say the least, unfortunate. The use of the term is the forerunner of hostility. Over the last seven years sanctions have created more hostility towards the arbitration system in this country than many of us, apparently, understand.
This piece of legislation surely must cause the thinking members of this House to ask two simple questions. Has the industrial legislation of this Government since 1951 been good or bad? Have the changes that have been made to the Chifley Government’s 1947 legislation proved sufficient to meet national requirements? In answer to the first question, after eight years of operation of the 1956 legislation I think one can say that this Government’s legislation has not by any means achieved the end that the Government intended it to achieve. Let me analyse the position. In the 1956 legislation the arbitration system of Australia was divided into two parts - one to deal with industrial disputes and the other to deal with various matters set out in Part V, and contempt in particular.
I want to deal with the second part first. The Commonwealth Industrial Court has become known as the court of pains and penalties. It is true that in the boilermakers’ case the High Court of Australia decided by four votes to three that the arbitration court, as constituted before 1956, could not validly exercise the judicial power in addition to the power of arbitration. In my view, it was at that point that the Government made its first mistake. Rather than divide arbitration in the way it did, the Government should have contested the decision of the nearly evenly divided High Court at the Privy Council level, or a referendum should have been taken to amend the Constitution to cover the constitutional weakness. I believe that time has proved already that the action taken in the 1956 legislation was wrong.
The Australian workers’ respect for arbitration is diminishing progressively. In analysing that claim, I refer first of all to the first annual report of the President of the Commonwealth Conciliation and Arbitration Commission, which was presented at the end of 1957. The President said -
Those closely concerned with arbitration know or should know of this separation of the powers and functions of the Commission on the one hand and the Industrial Court on the other hand, and the complete independence, the one from the other, of the two authorities. Nevertheless from time to time statements and items are published which ignore these facts or are inconsistent with them. It is hoped that the separation from and independence of each other of the Commission and the Industrial Court being now established facts will at an early date be generally recognised as such.
At the workers’ level, the hope expressed by the President has never been consummated. In the workshops and at the level of the shop committees the people who have always wanted to destroy our arbitration system have capitalised on the hatred of sanctions which is ingrained in the average Australian worker’s makeup. They have thrown all the odium - much of it inflated - on the arbitration system every time sanctions have been applied, never once trying to explain that the sanctions are being applied by an authority which, in practice, has no part to play in conciliation and arbitration. I emphasise that. The authority that imposes the sanctions mentioned by the Minister for Labour and National Service is not the authority that controls conciliation and arbitration in Australia. But that is not understood at the workers’ level.
When the Minister says that last year was the worst year for strikes that we have had for seven years, and when people say that record fines were imposed - as was indicated earlier in this debate - the average worker’s thought is that the fines are imposed by the arbitration tribunal that assesses his wages. So, the hatred is built up not by those of us who stand for the policy of conciliation and arbitration but by all of the people who are opposed to conciliation and arbitration and its use in the workshops. That is what is destroying more and more the faith of Australian workers in conciliation and arbitration. It suits the wreckers of our arbitration system, whatever their philosophy is, not to assist realisation of the hope expressed by the President of the Conciliation and Arbitration Commission in 1957, namely that people would understand the difference between the Commission and the Industrial Court. The wreckers of our arbitration system revel in clouding the issue because that suits their own miserable ends.
Far be it from me to attack the Commonwealth Industrial Court as distinct from the Conciliation and Arbitration Commission; but I express the view that the Court has not helped those of us, including unions, who in season and out of season unfailingly support the Australian system of conciliation and arbitration. The Court has meddled in union affairs. For instance, in the last three years it has laid down principles which the registrar is bound to apply under the Act and which cover the control and management of unions. Let . me emphasise that in the long run - say, over the next 10 years - that action may be the means of changing moderate control and management of important unions to control by people who want to, and will if the present attitude of the Court persists, destroy completely the arbitration system. I do not make that statement idly. I make it because of my personal contact with what is happening in the trade union movement, and particularly in the union that I have the great honour to lead.
I say to the Attorney-General, who is the legal mouthpiece of the Government, that this is a matter that he should look at, and look at quickly. If he does not do that, the prophecy that I have made in strong terms will become the future of conciliation and arbitration in Australia. I pose this question: Do not the Minister for Labour and National Service and the Government really understand that their remedies for our industrial ills have not succeeded. The Minister, speaking of industrial unrest in his second reading speech, said -
Last year, the figures showed a worse record than the previous seven years.
In the eighth year of the Government’s 1956 legislation, which was to be the cure all, the position was worse than in any one of the seven previous years. Yet when we ask for an amendment of the type moved by the honorable member for Stirling, the Government is inclined to reject it.
Are the Minister and the Government unaware of what is happening? The very people whom the Minister complacently feels he can control by force of sanctions have found a way to use sanctions as a means of achieving among trade unionists the reverse objective to that which was blandly contemplated by the Government. This condition - mark my words - will be accentuated not diminished in the future. The President of the Commonwealth Conciliation and Arbitration Commission, on the last page of his latest annual report, said -
I report on these various problems because I consider 1 am required to do so by reason of their relationship to the working of the Act and the extent to which its objects have been achieved on which I am required to report. . . .
I ask the House to pay particular attention to his next remarks -
I am of course mindful of the sanctions contained in the legislation which arc largely dependent on the Award in question containing a bans clause. I also bear continually in mind that the objects of the Act are far more likely to be achieved by genuine attempts in the first instance at least at conciliation rather than by too swift resort to sanctions in the form of fines and orders for payment of costs.
– Whose report is this?
– It is the
Eighth Annual Report of the President of the Commonwealth Conciliation and Arbitration Commission, Sir Richard Kirby. These were not idle words. They underline what I am putting today. The President knows full well that sanctions are destroying the arbitration system in Australia. I am speaking today in the hope that some of my remarks will at last seep through to the Government. The very reverse of what Government members intended by the 1956 legislation is happening today. The people who will destroy conciliation and arbitration in this country have found a way around the 1956 legislation. The Minister referred to the great increase in strikes in the last 12 months. Surely he will not sit down and merely say: “ There will be more next year if things keep going the way they are going “. What is happening is that those who would destroy conciliation and arbitration have found ways and means of using the Government’s own legislation.
I turn now to the Government’s 1956 legislation relating to conciliation and arbitration divorced from a court of pains and penalties. I say to the Attorney-General: “For goodness sake look at this thing quickly because if you thought your legislation was right in 1956, analyse the situation carefully and you will realise it is wrong in 1965 “. The Government did not want to refer the pains and penalties decision to the High Court because of all the hatreds which were built up around it. The Government did not think that the High Court was the right place to deal with it; but neither is the Commonwealth Industrial Court. If the Government wants to continue this type of thing in Australia, give us an intermediary authority and for God’s sake do not wait another day before divorcing it from conciliation and arbitration as such.
In 1947 a Labour Government under Mr. Chifley attempted to set up an industrial machine. It sought to divorce matters at the industrial level from the court which dealt with the basic wage, standard hours, annual leave and female rates of pay. This was done deliberately because we believed it was necessary in the post-war years if we were going to live in a period of full employment. The trouble is we have not yet learned to live in a period of full employment and meet the needs of the workers. If the Labour Government’s 1947 legislation had never been tampered with, we would have been in a position where the President of the Conciliation and Arbitration Commission would not have to write about overaward payments. I ask every member to read the report of the Commission for the year ended 13th August 1964 and in particular pages 13 and 14 which relate to over-award payments. We are reaching the time when it will be difficult for the Commission as such to work because of what is happening. In 1947, in Labour’s early thinking and planning, it was visualised that this kind of situation would arise.
We believed, and I still believe, that it is wrong to ask a Commission which is going to assess standard hours and the basic wage - which are related to the national productivity - to be also the determining factor at the industrial level. That concept was broken away from when the 1947 legislation was scrapped. We broke the very machine which would have avoided the need for the type of report which has been presented after eight years of the 1 956 legislation. The workers do not hesitate any more. Through their leaders they throw down the gauntlet to the bosses and say, “ It’s two quid or else “, to use their expression.
– Not enough.
– My friend says it is not enough, but we must remember that in a society such as ours - and I hestitate to say this - if the strongest are to get the cream, only the sour milk will be left for the weak. Do not make any mistake about it. This is the stage we are reaching. We have an underpaid section in Australia. This consists of a big percentage of New Australians who come here. Members opposite are not concerned. They laugh and say: “The Communists cannot influence these people. They are antiCommunist in their outlook. They vote for us.” They should remember that the New Australian who comes into the work force today is on the bottom rung of the ladder.
The 1956 legislation was designed to correlate wage levels in Australia. There have been three increases since then. There has been a marginal increase of two and a half times based on the 1937 figure. All of those persons with the 27s. margin remained where they were when the two and a half times decision was introduced, so we have the situation that those in the lowest paid wage group between 1947 and 1965 have had a mere 28 per cent, increase of their margins plus a further 10 per cent. This is where the disgruntled element lies today, and this is where shop committees are able to capitalise on the situation. Do not blame the New Australian. He does not understand our conciliation and arbitration methods. All he knows is that he wants a pound in his pocket and he will follow the lead of the person who gives it to him.
Every day in the week under the present legislation conciliation and arbitration in Australia is getting weaker and weaker. The President of the Conciliation and Arbitration Commission does not write a page about over-award payments unless he is fearful of the future. He is fearful of the situation in Australia getting completely out of hand. The Treasurer (Mr. Harold Holt) introduced the 1956 legislation and I ask him now to read the words he used then to see whether he accomplished what he set out to accomplish. If he is honest he will agree that in 1965 the reverse of that which he prophesied in 1956 has occurred.
While the 1947 legislation might not have been all that was desired, what should have been tried in this country was a proper assessment of work values at the industry level. Then margins should have been determined on the capacity of the nation to pay. This would have benefited the lower paid workers. Then standard hours could have been considered. However, the Government turned its back on the legislation Labour suggested and it is reaping the whirlwind of that which it sowed. For eight years its legislation has been tried, and it has failed. The Minister said that last year was the worst year we have had industrially, yet we have had eight years of the Government’s legislation and the application of penalties.
Let me read now what the President of the Commission said -
This does not rule out the possibility that the Commission might usefully discharge the role of conciliation.
He was dealing with over-award payments. He continued -
In this connection it is well to remember that conciliation, or for that matter arbitration, does not or should not carry the connotation that this party or that has necessarily to concede. If, however, the parties to an argument regarding overaward payments elect not to seek the assistance of the Commission, it can hardly be said for the reasons briefly given that our system of conciliation and arbitration has been bypassed let alone broken down. Even in this situation I would not rule out as inappropriate that the Commission should offer its assistance though this would often be a matter for delicate judgment.
I ask the Minister and the Government to read between the lines of that statement by the President of the Commonwealth Conciliation and Arbitration Commission. If they do they will see that he is suggesting that the whole system needs a complete overhaul, that there is a need for a complete review of the rights of the workers at the conciliation and arbitration level and that there is a need for a complete review of their wage payments. At the moment, the workers are saying: “If we cannot get it from the Commonwealth Conciliation and Arbitration Commission we will take it.” That is the cry at the workshop level. It is the cry coming from shop committees, and it is not confined to railway workshops; it is the cry being uttered in every workshop in Australia.
How do you meet it? What does the average employer say? In the main, there is no control over prices or profits in this country. Therefore, the employer says: “ All right. I will give you an extra £2,” and he immediately adds £3 to the price he charges for his product and keeps the extra £1 for himself. He is able to do that because there is no restriction of profits or prices in this country. We shall be riding for a fall if this state of affairs continues. I had hoped that this debate would have analysed the difficulties confronting our arbitration system today. I had hoped that Government members would not have been content with saying that this legislation provides something better than existed yesterday. I say to the honorable member for Higinbotham (Mr. Chipp) who, I understand, is the leader of the Government’s industrial committee, that if the manner in which he approached this problem is indicative of the type of thinking that is being indulged in on the Government side it is no wonder that we are drifting from one bad spot to another.
Finally, I say to the Minister and to the Treasurer that they should read again the Minister’s own statement that the position was worse last year than the previous year. I ask them to read between the lines of the statement made by the President of the Commonwealth Conciliation and Arbitration Commission about over award payments in this country. I ask them, for God’s sake, to wake up to the fact that what the Government did in 1956 was not right then and that it is still wrong now. I urge them to do something to put conciliation and arbitration in Australia on the high plane on which it should be handled by a Government.
.- Like most honorable members of this House, I agree that the honorable member for Blaxland (Mr. E. James Harrison) has a very profound knowledge of the conciliation and arbitration legislation passed by this Parliament, but I cannot agree with many of the principles that he put forward during the debate this afternoon. At one stage he said that Australia is having more industrial trouble today than she had eight years ago. Statistics may indicate this, but I think that one of the reasons for this fact is that we have full employment today, and when there is full employment the dissidents and militants working in factories are able to twist the arm of the employer in the full knowledge that they are not likely to lose their jobs. I think that is the answer to the problem he mentioned.
The Australian Labour Party has moved an amendment to this measure. It is asking for the repeal of the injunctive and contempt provisions in relation to awards. I do not know how any honorable member of the Opposition can sit in this place and support an amendment of that nature when one remembers that prior to 1949 there was a Labour administration in this Parliament and that the Labour Government had the right, privilege and power to introduce that type of amendment then. It did not do so. What sort of hypocritical situation are we getting into? Anyone who examines any of the State industrial acts will find that they have had sanctions provisions retained in them irrespective of the political colour of the party in power. I do not think the honorable member for Blaxland really believes what he says. I think he is merely sounding the voice of one section of the trade union movement. I remind the House that there is one section of the trade union movement, a responsible section, which believes that the only way in which we can have industrial peace in this country is by imposing sanctions.
The whole purpose of the Bill introduced by the Minister for Labour and National Service (Mr. McMahon) is to try to improve the industrial situation in this country. The whole purpose of the Conciliation and Arbitration Act is to try to find a form for industrial peace and to smooth the way to obtaining justice for employer and employee. Of course, Australia did not go through the industrial revolution of the nineteenth century. We are very young industrially. We have not seen in this country the serious abuses of labour, particularly of child labour, which took place during the time of the industrial revolution. It was during that time that men first found the need and the heart to strike for justice. 1 think it is true to say that Australia has a good record in the industrial field. The honorable member for Blaxland has complained of the slow way in which amendments to the Conciliation and Arbitration Act have been coming forward over the years. He wants to see some sort of sweeping change. I would like to remind him that we have been mainly an agricultural country and that we have built ourselves up to an industrial force in a relatively few years. With the building up of industries, of course, we have found the need to look at and improve the conciliation and arbitration legislation passed by this Parliament. But there has been conciliation and arbitration legislation virtually since Federation. The first act was introduced in 1904, and I remind the honorable member for Blaxland that even at that time it contained prohibitions against strikes. Indeed, it provided penalties of up to £1,000 for striking.
In 1930, this prohibition against strikes was removed, but I remind the honorable member that the court still had power to impose penalties for breaches of awards. In 1947 - the honorable member for Blaxland mentioned this - a significant change was made to the Commonwealth Conciliation and Arbitration Act. At that time, Dr. Evatt, who was a Minister in the Labour administration, introduced legislation to make the Commonwealth Arbitration Court a superior court of record. This gave the court, for the first time, powers of common law, including the right to fine for contempt. If the honorable member for Blaxland wishes to criticise what was done in 1947, then he should have been here and done so at that time. I accept the fact that he was not here, but some of his offsiders were here and they should have got to their feet at that time and criticised the legislation that was introduced by the Labour Government.
Since 1947 we have come to see the regularisation of method and a growing use of the court’s power to fine. In 1956, we saw a rewriting of some of the provisions of the Act. There seems to be some difference of opinion between the honorable member for Higinbotham and the honorable member for Blaxland as to whether provisions similar to those contained in sections 109 and 111 were embodied in acts prior to 1956. The honorable member for Blaxland says that no such provisions were contained in previous legislation; but the courts certainly did have power to fine. There might have been a difference concerning a breach of an award or some other matter, but the Act did grant the court power to fine. The honorable member must accept this fact.
In 1956, sections 109 and 111 were first embodied in the Act in their present form. They contain the controversial provisions that the Labour party wishes to have deleted. What do they mean? Section 109 (l.)(a) provides, in effect, that if a strike is in progress in his factory the employer shall have the right to approach the court for a writ of mandamus or, to put it in layman’s language, an order compelling the men to go back to work. Section 109 (1.) (b) is also very important. It gives the employer the right to apply for an injunction to obtain an enjoining order to prevent the men from going out on strike. This second provision has been proven to be necessary because of the fact that if an employer has a strike in his factory, and applies for a writ of mandamus - an order to compel the men to go back to work - the dispute may have been settled out of court by the time the court hears his application. Consequently, we have this provision which means that if an employer knows that his men are going on strike he can apply for an enjoining order to prevent them from going on strike. In other words, section 109 (1.) (b) gives the men an opportunity to make use of conciliation, as they should.
– What if the boss won’t talk?
– Somebody asked: “ What if the boss won’t talk?” The employees then have a regular procedure that they can adopt. They can serve notice on the employer telling him that they want to talk, and if the employer does not take any notice of them they can go to the Industrial Registrar and lodge notification of a dispute. Then there must be a hearing about it. The employees have a perfectly legal and practical method of getting over that kind of difficulty.
What is the objection of the Labour Party to this arbitration legislation? The honorable member for Higinbotham referred, by way of illustration, to a football match in which an umpire gives a decision. What happens if one team refuses to accept the umpire’s decision? The position, of course, becomes hopeless. A similar situation exists in respect of our industrial arbitration system. We frequently find that one team, the employees, refuse to abide by the umpire’s decision, although the employers have to accept it. It is not a fair go.
What happens when the employees are not prepared to accept the decision? The employer may get an order under section 109(l.)(a) or 109(l.)(b), but this does not impose a penalty on the employees. The employer then has to go back to the court and invoke section 111 to force the men to go back to work, and if they do not go back to work on this second occasion they may be fined up to £500 under section 111. I believe we should do everything in our power to improve the conciliation system, and I think it is imperative for us to retain the sanctions provisions. If we remove that section of the legislation we will then have no provision for inflicting penalties on offending employees. Let us not forget that it is not a single employee who pays a fine, it is the union itself. What happens when we spread over the total membership of a union a fine of the order of those that have been imposed by the court? As the honorable member for Higinbotham said, a fine of £500 spread over the 22,000 members of the Waterside Workers Federation works out at only 5d. a head. But the average fine in 1964 was only £248, which is no more than 2£d. for each member of the Waterside Workers Federation.
As 1 said earlier, it is in times such as these, when we have full employment, that the dissidents and militants get to work prodding the employers along. They start demanding all sorts of changes in their awards. We have seen two typical examples of this procedure in the strike involving General Motors-Holden’s Pty. Ltd. and the Mount Isa strike. In the case of the Mount lsa strike, the strikers following Mackie or Markey or Marx - whatever he calls himself - refused to accept arbitration and conciliation and made their own demands. The Australian Workers Union advised its men to return to work, but it was not until actual hardship was felt by the many families depending on employees at Mount Isa, and the nation’s economy was adversely affected to the extent of millions of pounds, that the men finally accepted the union’s recommendation and went back to work.
– The honorable member says it is baloney. What do honorable members opposite want? They cannot have their cake and eat it too. It seems to me that the nub of the matter is whether you can have a system of conciliation and arbitration and still retain the power to strike. When we in this country bring down laws we do it to secure peace and order. Laws are introduced by men for the benefit of men. It seems a logical extension of the principle of law-making to introduce laws in the field of industrial relations. I repeat that the dissidents and militants have opportunities to create havoc unless we have industrial laws and the only way to control such people is by imposing sanctions.
Employees have full protection under our conciliation and arbitration system. They have gained more under that system than they would ever have gained under another system. It is of no use for honorable members opposite to say: “ Ah “, as if they did not agree with that statement. It is, of course, obviously a fact that employees have gained all the way through under the present system. If an employee thinks there is some provision missing from his award he can take the proper steps to have it included in the award. Suppose, for example, an employee working in one of the metal trades believes that something is missing from his award. Suppose that he is working in conditions in which he believes some danger exists. He may contend that he should receive danger money. He does not have to strike in order to get it. He simply serves notice on the employer, and if the employer does not respond to the demand the union can notify the Industrial Registrar. The Registrar then informs the Commission that a dispute exists and the conciliation and arbitration machinery is set to work, and justice is done. I ask honorable members opposite: What more do you want? There is the machinery in existence for the benefit of the employees. What more do you want?
I know that the present situation does not suit the militants. They do not want industrial peace anyway. It does not suit the Communists amongst the waterside workers because they do not want peace. All they want is to create industrial havoc.
– What has the honorable member got against the waterside workers?
– I am talking about a few of the executive of the Waterside Workers Federation who try to create industrial havoc and embarrass the Government and the nation. Those are their tactics: that is what they want to do. They want to damage the economy. Let us aave a look at the figures that were given a little while ago by the honorable member for Higinbotham. In March this year 182,856 man-hours were lost on the waterfront. What an enormous cost this is to the community. This loss was completely unnecessary. The conciliation machinery could have been put to work, the men could have gone on working, the ships could have been turned around and produce could have been loaded. What a reduction in costs this would have meant to the man on the land. How it would have helped to ease our balance of payments burden.
I will tell the House what the Communist controlled unions are doing on the waterfront; they are forcing the introduction of mechanisation. Employers are losing patience because of the tactics of the Communists in control of the waterfront unions, so that mechanisation is being introduced just as it was introduced in the coal mining industry. We see a situation on the waterfront today similar to that which existed some years ago in the coalmining industry. If I were an employer on the waterfront I would have my activities mechanised too if I were subject to continual hacking away by a few Communists in control of the unions. In Australia last year we lost one million man-days through strikes. It seems to me that very few unions are inhibited by the sanctions provisions in the legislation, because they go right ahead, notwithstanding these provisions, and call their strikes. Remember that there are only about four million employees in the whole of Australia, and it is only a small proportion of them that cause these losses.
The honorable member for Blaxland said that the present system is weak. I agree with him there, but I do not think it is weak for the reason that he gave. I think it is weak because when the sanctions are invoked a union can be fined only £500. The honorable member for Higinbotham has already shown that £500 spread over 22,000 waterside workers works out at only 5d. a head. Are the rank and file members of a trade union going to notice 5d. a head every time they strike? Of course not. Half the time the rank and file members do not know what their strike is about. They simply leave the whole matter to their executive. I believe the maximum amount of the fine should be increased considerably so that the rank and file members of a union will feel the impact on their pockets. They will then want to know what a dispute is about and they will take a great deal more interest in what their executive is doing. I think we would then find that the Communists in control of the waterfront would no longer remain in power but would be kicked out on their necks, as they should be.
The whole purpose of our arbitration legislation is to encourage conciliation. What we want is more conciliation and fewer strikes. Surely all members of this Parliament, whichever party they belong to, are looking for more conciliation and arbitration and fewer strikes. The honorable member for Blaxland suggested that the legislation had failed because there had been an increase in the number of strikes and amount of industrial trouble. It is true that there has been an increase in the incidence of strikes. In 1961 - I made this point before but I will now give figures to back it up - when there was a certain amount of unemployment in the community, there were only four strikes. In 1964, when we were approaching full employment, we had 119 strikes. Conditions of full employment such as exist today suit the dissidents and the militants in the shop committees who, for purely domestic reasons, want to embarrass the trade union movement. In 1942, in the Transport Workers Union versus Amalgamated Dairies Pty. Ltd., Chief Justice Piper said -
But the Court has always recognised the principle that unions and their members cannot have both arbitration and direct action, and if they elect to become a registered organisation under the Act and thereby obtain powers of corporate action - which are valuable powers - they cannot preserve those powers and at the same time refuse to carry out the awards made by the Court as a result of the approach made to the Court by the organisation.
Again, in the 1950 basic wage inquiry, Chief Judge Kelly said -
It cannot be regarded as being in the public interest that one party to an industrial dispute should be required to answer a claim before an arbitration authority when the other party, the party pursuing that claim, is flouting an arbitration award of the same authority . . .
This seems to be logical and is a commonsense approach. I say quite flatly and bluntly that there is no case at all for the removal of sanctions. Indeed, I would hope that, if there is ever another review of the Act, the Minister will give full consideration to increasing the power contained in the sanctions provisions.
.- I support the amendment moved by the honorable member for Stirling (Mr. Webb). I congratulate him and the honorable member for Blaxland (Mr. E. James Harrison) on their thoughtful contributions to this debate. I wish to get away from the legal niceties and to put a practical point of view. I have participated in many strikes in my lifetime and, in common with many members of the trade union movement, I think that strike action is the only weapon that the working man has to force his terms on anyone anywhere.
I criticise the Minister for Labour and National Service (Mr. McMahon) for the remarks he made in his second reading speech. He said that the Government had been considering proposals by the Australian Council of Trade Unions relating to the sanctions provisions contained in sections 109 and 111 of the Commonwealth Conciliation and Arbitration Act. He also said that he had considered the views of the national employers’ organisations. He evidently took more notice of the employers than of the unions, because he immediately set about giving reasons for his decision not to adopt in full the proposals put by the responsible body of the trade union movement, the A.C.T.U., for the removal of sanctions. He referred to a speech he made in November 1964 in which he said -
First, sanctions are an essential part of our arbitration system in one form or another.
What rot! This statement by a Minister is ridiculous in the extreme. He said the Government had no intention of removing the sanctions. The Minister at this point showed his partisanship by allowing the master to retain this weapon for industrial blackmail, a weapon that he has used ruthlessly in the past.
Honorable members on the Government side of the House often refer to industrial troubles and their causes. Without exception the blame is fastened on to the unions. These tactics are used for political reasons and they are the excuse for retaining the sanctions provisions. In his second reading speech, the Minister said that the average time lost by every wage and salary earner in Australia was just under two and a half hours a year. I mention this despite the assertion of the honorable member for Gippsland (Mr. Nixon). It is more than likely that workers lost this time because the bus was late or for some similar reason. I should think that there is not one honorable member who, in the last twelve months, has not lost two and a half hours from the time he should have been present in this House.
The Minister used his old stalking horse when he referred to the stevedoring industry. This is a peculiar industry and is quite different from other industries. The work is of a casual nature and many delays occur because of bad weather and other factors. The workers in the industry are the butt of criticism from all sections of the community and are frequently criticised in the columns of the putrid Press. They are good Australian citizens. Many of diem were servicemen in World War II. They are family men who work hard under deplorable conditions. Anyone who has worked on the waterfront would know the difficulties in the industry and the continual sniping attacks of the shipowners who use all sorts of subterfuges to try to force waterside workers to work under conditions that would not be tolerated in any other industry. No quarter is given by the shipowners, who are really responsible for all the trouble that occurs.
If honorable members opposite could have the experience of a few days work on one of the old tramp steamers, which are rat infested and overrun by cockroaches, with hatches full of dirt, they would have a better understanding of the waterfront. If honorable members could have the experience of just one full day’s work, with the stench of the putrid bilge water assailing their nostrils, they would understand why the men try to make the profit hungry shipowners honour their responsibilities. I say again that the shipowners are the cause of all the trouble on the waterfront. They sidestep as far as they can their responsibility to fumigate their ships before they are unloaded, irrespective of the countries that they have visited before reaching Australia. The shipowners, especially those that belong to Overseas Conference, are petty, mean and contemptible in their approach to industrial matters. They are stubborn, defiant and brutal. Yet this is the body that the Minister wishes to protect with sanctions.
The waterside workers try to have their complaints settled by peaceful means, but they are rebuffed time after time by the brutal representatives of the shipowners and are left no alternative but to stop work until the causes of their grievance are corrected. Then the wail goes up from the shipowners and the daily Press comes on the scene to bolster up their case. Of course, very colourful articles appear in the daily newspapers and these give the impression to the general public that the shipowner is the innocent victim of the stoppage. They invoke sections of the Act for their articles and individually attack strike or stoppage action. The normal action of the trade union is called treachery or sabotage. The trade union movement deplores the need for strike action in any dispute and is always prepared to negotiate. The trade unions do not believe in strikes.
The 1959 Congress of the A.C.T.U. held that the penal provisions were deliberately inserted in industrial legislation to provide the employers with the highest degree of preferential economic power by destroying or nullifying Mie industrial strength of the workers organised in trade unions. Section 109 (1.) of the Commonwealth Conciliation and Arbitration Act gives the Commonwealth Industrial Court power to make orders prohibiting an organisation from being a party to any ban, limitation or restriction on performance. Yet we are supposed to be living in a free country.
Section 111 of the Act gives the Court the power to penalise a body or an individual for contempt of court. The maximum fine for each breach is £500 for an organisation, £250 for an office holder in an organisation and £50 in any other case. Where contempt is committed in any form other than a breach of a court order, the maximum penalty is unlimited. It is also interesting to note that section 119 of Part VI and section 138 of Part VIII of the Act give the employer the right to cite an officer of an organisation before a magistrate or special court for an interference with the performance of work. Section 122 prescribes a penalty of £20 for wilful personal failure to comply with an order or award. This is what our soldiers are fighting for.
Let us now have a look at some of the fines imposed, under the terms of the Act, on the Waterside Workers Federation of
Australia. The Federation is under the control of its Federal Secretary, Mr. Charlie Fitzgibbon, who is a member of the Australian Labour Party - and a very well respected member, too. The majority of the members of the Federal Executive of the union are members of the Labour Party. Since the making of the 1960 award, fines imposed on the Federation have totalled £17,000. Legal costs paid to 1962 totalled £4,550. What a feast for the lawyers. Fees due for payment have amounted to £2,000 and estimated costs not billed have totalled £1,900. This makes a total of £25,450. I believe that these figures are sufficient proof of the fact that the Government has set out deliberately to destroy trade union organisation by trying to force unions into bankruptcy.
The Minister for Labour and National Service referred to lost time, but he did not mention that the economic recession created by the Menzies Government since 1960 had resulted in the loss of at least 30 million working days through unemployment, causing the Australian community irretrieveable loss in the production and distribution of goods and services, to a total of at least £500 million. Yet the Minister talks about each wage and salary earner in industry losing’ an average of about 2i hours a year. The welfare of the wage earner also has been adversely affected by the actions of this Government, which has increased indirect taxation from 37.5 per cent, of total tax revenue in 1951 to 43 per cent, this financial year. And do not we all remember this Government’s attempt to peg wages when prices and profits, on the other hand, were left unfettered? As one who has taken part in many strikes during his industrial lifetime, I should like to tell the Minister that most strikes in industry are caused by the employer himself. When a firm is unable, mostly through lack of good management, to discharge its commitments as undertaken by contract, the employer finds it most convenient, when circumstances permit, to stir up some industrial trouble by provocation. This enables the firm to avoid its obligations by blaming what the employer is pleased to describe as “ subversive elements “. This is an old trick.
The Minister still finds solace in batches of figures. He provides figures showing the number of strikes and also mentions that the applications made under section 109 of the Act and provisions that were predecessors of that section have averaged 26 a year but the number of orders made absolute has averaged 14. This represents a very high percentage - about 55 per cent. This fact shows that employers are being protected by this Government against employees. Employers lead charmed lives industrially under anti-Labour governments. One has only to look at the huge building development taking place in the capital cities of Australia to see the huge profits that are being made by the average employer, who cunningly conceals his assets in bricks and cement. But what do we find in the average worker’s home? Let us consider the position of the technician or tradesman, who- is forced to live from hand to mouth and from day to day on a miserly wage of £23 a week, less tax, and who has to struggle valiantly to keep his wife and family and educate his children while he keeps body and soul together. And what about the unfortunate family man who has no trade and who receives no margin for skill, but is forced to exist on the basic wage? Is a thought ever given to him? If he complains, he becomes in the master’s eyes a subversive element. If he wants to better his conditions and rates of pay, his master cries out for sanctions. The legislative gun is certainly loaded for the benefit of the employer, no matter which way one looks at the situation.
The Minister admits, and has no hesitation in saying that the unions have the right to try to improve wages and conditions of employment for their members. But he says that there is a limit to the industrial action that our community can be expected to tolerate. This, again, is a threat, of course. Is not the secret weapon of sanctions evident here? The Minister mentioned that most cases that have led ultimately to resort to the sanction provisions have involved claims for more than the award provided. This proves that the producer who, in 99 per cent, of cases, is the worker in industry, is dissatisfied with his share of the proceeds of his productive effort. His share, we must admit, is very meagre. When his dissatisfaction is voiced, we hear the cry that subversive elements are endeavouring to take advantage of the shortage of skilled labour to make excessive and irresponsible demands. This is a very popular catchery of the masters.
But there is never a word when the forces of monopoly corner production and systematically increase the prices of their products. When this happens, it is described as good business methods. There was an example of this recently in Queensland during the Mount Isa strike, when the price of copper was forced up to a record level. This, of course, was regarded as good business by the world monopoly that controls the world’s supply of copper. Did not the anti-Labour Government in Queensland rush in and declare a state of emergency and impose sanctions against the miners? This was done to protect the employing company, which was getting a high price for its copper, and to try to force the workers to go back to work. There was no mention then by the Minister of the need for sanctions against the company for exploiting the copper supply situation.
Big business is sacrosanct and must be allowed to go its way unimpeded so that it may plunder the whole community at will. But, if the average worker complains, he is cajoled. If he strikes, sanctions are immediately imposed against him. He can then lose his holiday pay and be fined. His organisation can be fined a specified sum for each day that the strike continues. The idea, of course, is to send the union bankrupt. While this obnoxious legislation hangs over the head of the average worker, the very thought of it operating in a free country that is one of the nations of the free world will cause industrial unrest. Ultimately, this legislation will have to be revoked. The Minister must understand that the only cure for industrial unrest will be the repeal of this legislation.
The policy of the Australian Labour Party is and always has been conciliation and arbitration in industrial matters. As a matter of fact, the Labour Party first set up conciliation and arbitration machinery for dealing with industrial unrest and disputes. This machinery operated successfully without any need for the introduction of the brutal policy of sanctions. This brutal policy was the brain child of an anti-Labour government. Since the introduction of sanctions, industry has been very restless. The Minister for Labour and National Service wonders why the trade union movement generally is suspicious of all the moves made by this Government in relation to industrial trouble. Industry is suffering from an illness caused by the continual threat of sanctions. Once this threat is removed, industry will settle down and remain free from further trouble.
The Minister, commenting on the attitude to sanctions exhibited by employers, said that it would not be denied that, in some industrial disputes, individual employers had failed to show the wisdom of Solomon. But he apologetically said that even Solomon would not have sustained his reputation if he had had to deal with the thorny problems which arise in the field of industrial relations. On the other hand he imputed that all workers in industry, and the trade union leaders in particular, behave irresponsibly when a dispute occurs. Through my experience I have found the position just the opposite. The employer is usually the most difficult to deal with. In most cases the employer does not want to discuss the reasons for the dispute until direct action is resorted to. Then the employer uses the old parrot cry: “Get them back to work and then we will discuss their troubles “. Then the employer is willing to do what he had refused to do until the strike began. He takes that attitude because he still has the weapon of sanctions behind him. While he has that weapon the unions believe there will never be complete peace in industry.
I believe that there never can be responsible discussion while the axe of sanctions is poised above the head of responsible trade unionists. We must never forget that this brutal weapon was forged by this Government for the very purpose of giving support to the employer. There will never be a reduction in work stoppages and, as the Minister declares, a reduction in the need for resort to sanctions,. until he erases the word “ sanctions “ from the Act. By doing this he will solve, automatically, most of the industrial problems. The Minister continually urges that all reasonable people act responsibly when a dispute occurs. I ask the Minister to act like a responsible person and remove the threat of sanctions from the Act. This will indicate to all responsible bodies connected with industry that he means business. Then he will be surprised at the co-operation that he will receive from the trade union movement which is a very responsible body doing a very responsible job in the community.
On the other hand, the kid glove treatment accorded to the employer is shown by the fact that the dragnet clause of prohibition which is inserted in the awards is only directed against unions and their members and cannot be used against an employer who is found to be acting other than in accordance with the terms of the award. The employer can be dealt with only under section 10 of the Act. Will the Minister explain to honorable members why this is so? Throughout his second reading speech the Minister used all the cunning at his command to protect the monopoly interests operating in our economy who are exploiting all and sundry. Why are those interests allowed to escape their responsibilities? The imposition of sanctions is un-Australian in its operation. In the interests of industrial peace sanctions must be removed from the Act. We find by reading the Minister’s second reading speech that this Bill deals only with a situation where a breach of the award has not occurred. If one side in a dispute has decided, in effect, to take the law into its own hands it must take the consequence of such action. The existing legislation provides the penalties. That means that sanctions can be imposed upon the union concerned, and its members, but the employer, of course, does not come within the same provisions of the Act. I would like honorable members to note that that is rather one-sided.
In my opinion the ultimate aim of the Minister is to destroy the right of unionists to strike. However, he can take my assurance that under no circumstances will organised trade unionism give up that fundamental right. Unions consider that it is one of the principles of the International Labour Organisation and that any interference with that principle would restrict their right as far as freedom of association is concerned. I believe that the use of the penal clauses by employers is causing a loss of confidence in conciliation and arbitration and is destroying goodwill in industry. I repeat that the Minister would be well advised to climb down off his high horse and act in a statesmanlike manner by removing sanctions from the Act. Let commonsense prevail for once. At a recent congress of the Australian Council of Trade Unions a resolution was carried which referred to the penal sections of the legislation. That resolution said that the trades union movement was best served where the responsibility of unions, one to the other, was recognised. A union which requires support of the remainder of the movement has a responsibility not to take strike action affecting another union without consulting the A.C.T.U. or its State branches. The A.C.T.U. recognises that exceptional circumstances could involve a union in strike action for which warning could not be given. In such cases immediate steps should be taken to refer such a dispute to the A.C.T.U. or its State branches. However, no aspect of a dispute should prevent the A.C.T.U. from calling together appropriate unions where penal action is threatened.
I would also like to remind the Minister that the A.C.T.U. has expressed its disapproval of unions acting contrary to the declared decisions of the federal organisation and participating in unauthorised industrial disputes. It also reminded all union officers and members of the declared policy determined by the A.C.T.U. Congress which defined the charter of shop committees and especially precluded such committees from usurping the functions of trade unions in dealing with industrial matters covered by awards and agreements. The A.C.T.U. said that it was imperative for the proper functioning of trade unionism that all sections of the movement, officials and members alike, adhere to the policies and procedures determined by the movement. It said that the acceptance by many workers of recent unnecessary and unauthorised actions by shop committees in calling mass meetings of workers in various establishments indicated a complete lack of knowledge or appreciation by such workers of trade union policy and actions. To correct this position officers were authorised to provide to affiliated unions and A.C.T.U. State branches the fullest information of such activities and policies for distribution to their members. I would like the Minister to note that. This must indicate the desire of the A.C.T.U. for prolonged peace in industry. I would appeal again to the Minister to show his appreciation of the action of the A.C.T.U. Congress by withdrawing the sanctions provisions from the Act and thereby act in a statesmanlike manner.
Sitting suspended from 5.54 to 8 p.m.
.- I wish to speak tonight in support of the Conciliation and Arbitration Bill which is before the House. The matters to which my remarks will be directed principally are contained in clause 6. This clause inserts in the principal Act a new section 109a which is designed to ensure a cooling off period between employers and employees where there is an application to the Commonwealth Industrial Court for a mandatory order to obey an award, or for an injunction to restrain a threatened breach of an award. The main virtue which I see in this amending Bill is the additional opportunity which it gives to the parties for conciliation. It provides a period during which the conciliation tribunals will have an opportunity to act so that the parties may air their grievances and explore what area of agreement may be found between them before there is any order of the Court which might result in substantial penalties on one party or the other.
In order to show the setting in which these sections occur may I go back for a moment to the history of this legislation. The Commonwealth power, of course, is found in section 51 placitum (xxxv) of the Constitution. This, of course, does not empower the Parliament to legislate in respect of industrial conditions generally. It is a narrow power which authorises the Parliament to legislate in respect of conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. There are, of course, other powers in the Constitution under which the Parliament acts to pass laws affecting industrial conditions. Placitum (i.) of section 51 is another power and section 122 is another, but we are not concerned with those provisions in connection with this Bill. It is the main power to which I have referred which is in question.
The prevention of disputes might be thought to give a very wide ambit to the power, but it is narrowed by enabling the Parliament to deal with this matter of prevention of disputes only by conciliation and arbitration. Again it might be thought the power would be narrowed by the necessity for having a dispute which extends beyond the limits of any one State. But in practice this has not occurred in the way that was expected because of the procedure which has been adopted of having formal disputes simply by serving a log of claims on one party or another. If the claims are not agreed to it has been held that there is a dispute.
Under this power as far back as 1904 this Parliament passed me Commonwealth Conciliation and Arbitration Act of 1904 which first established the Commonwealth Court of Conciliation and Arbitration. That Court remained in operation and, in 1947, under a Labour Government, it was made a superior court of record which gave it the power to commit for contempt. This court remained in existence until 1956, when it was found that it was unconstitutional in having judicial as well as arbitral power conferred on it. Honorable members will recall the boilermakers case decided in the High Court which is reported in the 94 Commonwealth Law Reports at page 254. The decision of the High Court was affirmed in the Privy Council, the case being reported in 95 Commonwealth Law Reports at page 529. It was there decided that you can confer judicial power alone on one body; you cannot confer arbitral power as well. Following upon that decision, this Government created the present Commonwealth Conciliation and Arbitration Commission and the present Commonwealth Industrial Court. It is to this Court that one goes under sections 109 and 111, the sections which we are considering this evening. This cooling off period, for which the Bill provides in new section 109 A, will permit the Conciliation and Arbitration Commission, or tribunals under it, to come into operation during the 14-day period and give effect to conciliation.
One other matter associated with the history of the legislation is that as far back as the 1904 Act provision was made for penalties for breaches of the Act or for breaches of awards. Under section 38 of the Act, the Court had power to fix maximum penalties for any breach or nonobservance of any term of an order or award. That is provided for in paragraph (c). Under paragraph (e) the Court had power -
To enjoin any organisation or person from committing or continuing any contravention of this Act.
The injunction order goes back as far as the first formation of the Court in 1904. This power has varied in its content from time to time. At the present time it is found, as I have said, in section 109 which contains two paragraphs, which concern us this evening. Paragraph (a) gives the Court power-
To order compliance with an award proved to the satisfaction of the Court to have been broken or not observed.
That has been commonly referred to as a mandamus or, perhaps more correctly, as a mandatory order to comply with an award. Paragraph (b) provides power for the Court-
To enjoin an organisation or person from committing or continuing a contravention of this Act or a breach or non-observance of an award.
That is the injunction provision and it extends, as we see, not only to an individual but also to an organisation, and not only to a breach of an Act, but also to a breach or non-observance of an award.
If an order is made, either a mandatory order or an injunction, there is still no penalty. It is simply an order to the person to whom the mandate or the injunction is directed to obey the award. Still nothing follows unless there is a breach. If there is a breach, however, in those circumstances it becomes a contempt of court. The contempt of court power in the Court in equated with -that of the contempt power of the High Court. As I have said this goes back to the legislation passed in 1947. The general power of the court is to fine or to commit to gaol indefinitely.
Under section 111, this power is cut down in the case of a breach of mandatory orders or injunctions. The Court cannot make any order which is more severe in the form of a penalty than the following - (a) Where the contempt was committed by an organisation (not consisting of a single employer) - Five hundred pounds; <b) Where the contempt was committed by an employer, or the holder of in office in an organisation, . . . Two hundred pounds or imprisonment for twelve months.
One might think that a more severe penalty. The office holders, for example, in a union comprise not only the committee of management but also the president, secretary, assistant secretary and other officers who are defined. In any other case the penalty is £50. That is the restriction on the power to commit for contempt.
What has happened in practice is this: These sections have come to be applied to organisations of employees or of employers. This has been done by a process of making application to the Commission in the first instance for the insertion in the award of what is called a bans clause. Normally one might have difficulty in finding a breach of an award committed by an organisation, but when application is made to the Commission and the Commission agrees to put a bans clause in th» award, it is a very wide clause. A typical form would proceed in this fashion: It would require that the organisation should not in any way, whether directly or indirectly, be a party to or concerned in any strike, ban, limitation or restriction upon the performance of work, upon or in accordance with the conditions prescribed by the award, and should not in any way, whether directly or indirectly, be a party to or concerned in any total or partial refusal or failure to offer for work or to work in accordance with the terms and conditions of the award. A clause such as that does not appear in every award. It has to be applied for specially. The Commission will not grant the application and put such a clause in an award, unless there has been some history of irresponsibility, unless there have been some prior breaches which lead the tribunal to believe that it is proper to put the bans clause in the award. That is the first buffer against the use of these provisions.
Where the Commission accedes to a request to put this rather drastic bans clause in an award, if any organisation then commits a breach the consequences set forth in sections 109 and 111 will follow; but they follow, as I have said, only if there is a breach or a threatened breach. One then applies for an injunction, but the Industrial Court still does not impose any penalty. It is only when there is a breach in defiance of the Court’s order that a consequential penalty will follow. Honorable members may well think that in those circumstances and at that point a penalty should follow. I should mention, perhaps, that these injunctions are generally limited in point of time. Sometimes one may get an injunction for as long as six months and, more rarely, twelve months. On at least one occasion, of which I am aware, a perpetual injunction was granted. This was granted against the Waterside Workers Federation of Australia, but with liberty for that organisation to apply on cause shown to have the injunction dissolved.
That would be a somewhat rare form of injunction to be granted. But honorable members will see that there are these builtin time factors already. The necessity to get a bans clause inserted in an award, the necessity to find a breach of that clause before one can apply for an order directing obedience, and then the necessity to find a further breach of the Court’s order, before the penalty applies, provide a series of built-in time factors designed to secure industrial peace before a penalty would ever be imposed.
The amending Bill which is before us this evening introduces a further time factor in this way: Proposed new section 109a provides, in effect, that if one applies to a court for a mandatory order or for an injunction the court shall not even enter upon the proceeding unless it has been proved that 14 days notice has been given of the threatened breach of the award. It must be proved, further, that that notice has been given to the Conciliation- Commissioner and that it has been given without any delay or, if there has been delay, that the delay ought to be excused. The Court will not enter upon the consideration of an application for an injunction or mandatory order until the expiry of 14 days, or a longer period if the Court feels that there is any advantage to be gained by extending the time. This is a wise provision. To some extent the courts have already adopted a procedure not unlike this. Upon an application being made to the Court for an injunction, the Court has adjourned the proceedings to give time for the parties to confer and to explore the possibility of agreement. But if this Bill is passed there will be a statutory command that the Court will give this time and the Court will not enter upon the hearing of an application for an injunction unless it has been shown that notice has been given and that a period of 14 days has elapsed. I suggest that the giving of time to enable conciliation to take place is a wise provision.
This provision applies only in one set of circumstances. It does not cover the field of applications for injunction or mandamus. It applies in the case where there is a threat of a breach and where there has been an application for an injunction. It does not apply where there has in fact been a breach. Honorable members may well think that where there is a breach - for example, where a strike is in progress - it would be idle to provide that 14 days notice should be given. But no approval of irresponsible conduct is contained in the proposed new section. If the evidence shows that the breach is likely to occur within 10 days - for example, an announcement might have been made that there is to be a stoppage every Monday, so there would be a strike within 10 days - again the 14 days notice is waived and the Court may proceed to hear the matter.
To sum up the aspects of this section which are relevant, I would say that it provides for a cooling off period and, consequently during that period, scope for conciliation. One of the criticisms that have been made of our system is that since federation we have given too much attention to arbitration, which consists of forcing a decision on the parties, and too little attention to conciliation, which forces nothing on them but seeks to explore the areas of agreement between them. I think that this criticism has been less justified over the last few years but, at all events, there is scope for a greater use of the conciliation power and this Bill will give effect to it. As the Minister for Labour and National Service (Mr. McMahon) said in his second reading speech, the Bill will, first, encourage people to act responsibly; and secondly, it will give no comfort to anyone who continues to act irresponsibly. If in the past there have been employers who have acted precipitately in applying for injunctions - it is a remedy which they find convenient - this measure will prevent them from doing so. But they are the minority. Further, employees have used the injunction provision and have obtained injunctions against employers. They, too, will have a restriction placed on them by the section. I suggest that it is a useful provision.
The honorable member for Stirling (Mr. Webb) in moving an amendment has sought to persuade the House that we should abolish sections 109 and 111. He advanced a number of reasons to support this view. I ask honorable members to examine his reasons for a moment. The first reason that he advanced was that other sections in the legislation provide adequate remedies, that there is no need for these two sections. He referred to section 119 which provides for a penalty for breach of the Act or an award and states that proceedings may be taken before a court of petty sessions and certain other courts. This is a minor penalty and is not adequate to the type of dispute which is covered by the mandamus or the injunction. The honorable member for Stirling referred also to section 143 which states that upon breach, in certain circumstances, one may procure that an organisation be deregistered. This is not an adequate remedy. I recall one dispute where a union was deregistered. I refer to the Australian Air Pilots Association. The dispute in the airlines industry thereafter proceeded with a body of individuals who were not registered. The organisation itself ceased to have any control over the matter. The latter situation was worse than the former. Deregistration is no cure for this situation.
The honorable member for Stirling referred to two sections of the Crimes Act, namely sections 30j and 30k. But to apply the Crimes Act to this situation is to take a sledgehammer to crack a nut. This procedure of mandamus or injunction is tailormade for the particular situation that arises. It is of no use to refer to the provisions of the Crimes Act when there is a threat to the industrial stability of the nation and to say that they are an adequate alternative. Finally on this point the honorable member for Stirling said: “ Anyhow, the Government could bring down special legislation to deal with the particular case”. That is another instance of using a sledgehammer to crack a nut. Sections 109 and 111 are tailormade for the particular situation with which they deal. The responsible employer and the responsible employee have nothing whatever to fear from the operation of these sections. Only the irresponsible employer or the irresponsible employee who is in breach of the law has anything to worry about in respect of the application of these sections.
The second reason which the honorable member for Stirling advanced was the number of occasions on which these sections were being used. He said that in 1963 and 1964 there was a large number of cases and, indeed, a large number of orders were made. That is true. It may be that sometimes an employer could be described as penalty minded. But that is not an explanation of the increase in the number of cases. We know that those two years - 1963 and 1964 - were years of great prosperity and years of full employment. In such times, inevitably some employees wish to take advantage of the situation in order to bring pressure by way of direct action. The fact that orders have been made and that the Industrial Court has decided that breaches have been committed shows that in those cases direct action was taken. I suggest that that is the explanation of the increase. One would expect the figures to rise in times of full employment. But surely that is not a reason for abolishing the sections; rattier does it favour retaining them.
Finally, the honorable member for Stirling spoke of the harshness on unions. He said that if any member committed a breach of these sections the union was likely to be fined for the breach. That is not the position under the law. I suggest that under these provisions an organisation such as a union will not be liable for a breach unless it is responsible for the breach in the sense that there is complicity of the union in the breach.
– The honorable member should study the facts more closely.
– If the honorable member for Blaxland will listen, I will refer him to the authority on this question. The Commonwealth Industrial Court decided this matter in 1958, in the case of the Commonwealth Steamship Owners Association against the Waterside Workers Federation of Australia, which is reported in the 13th volume of the Industrial Information Bulletins, at page 647. In that decision it was laid down that even action by a branch would not necessarily be taken as an act of the union itself; that there had to be complicity of the union before there would be a breach of an order made under section 109 (l.)(a).
But, if the union is standing by, if it is aiding the men who are committing the breach, if it is riot disciplining them or if it is not bringing them forward for an explanation, then in all the circumstances the Court may infer that the union is implicated and that it has adopted responsibility for the action of the men. Then the court will make a finding - and so it should in those circumstances. However, if the union says: “We are not responsible. We are endeavouring to discipline this shop steward, who happens to be someone who has infiltrated our ranks and is creating trouble in order to get our union into trouble. We do not hold ourselves responsible for what he has done “, then the union would not be responsible for contempt of court. Of course, if the union stands by or if it does any positive act which shows that it is implicated, then it will be responsible for contempt of court and the consequence will follow.
Therefore, I suggest that the reasons advanced by the honorable member for Stirling for doing away with these sanctions are not adequate. Sanctions are very necessary. The fact is that we must have adequate sanctions both against employers and against employees. We have had them for 60 years under governments of ali types of political party. We have had them in the six States. The impulse to change them now can come only from people who wish to be able to break the law without having an adequate sanction or penalty against them. After all, a law is a command. If it has no adequate sanction behind it, it sinks to the level of a mere request. The people who wish to remove these sanctions wish to reduce the orders of the Court to the level of mere requests to the parties, because the other sanctions would be inadequate. It is in the interests of both employers and employees that that should not happen.
There is one other matter in the amending bill with which I want to deal. I refer to clause 14 which inserts in section 198 of the principal Act a new provision dealing with regulations. The new provision is directed to the question of costs in proceedings under these sections. The amending bill does not set out what will happen in regard to such costs; but the Minister for Labour and National Service, in his second reading speech, said that amongst other things it was intended that parties should not be able to recover the costs of senior counsel from the other side without a certificate from the Court. This is a fairly normal provision in respect of certain types of proceedings. It simply changes the onus. Costs awarded on a party basis have to be taxed by a taxing officer. If the taxing officer is satisfied that senior counsel should not have been employed in a particular case, he will disallow that counsel’s fees. This new provision means only that such fees will be disallowed automatically, unless an application is made to the judge at the hearing and he is satisfied that the employment of senior counsel was justified. I support this provision.
Before closing, may I be permitted to refer to something that my friend, the honorable member for Higinbotham (Mr. Chipp) said in his speech this afternoon. He said that he thought legal men were not the appropriate people to be deciding economic questions in the Conciliation and Arbitration Commission and the Industrial Court. I will agree that it is probably impossible to select any type of human being as the ideal type of person to decide these questions. There is no such human being. These questions are very difficult. They are too complex. But I suggest that the last person who should be chosen is an economist with an inbuilt doctrine of his own, to start with. At least, when a judicial man is chosen from the ranks of the legal profession, he is likely to have the intellect to appreciate the problems; he is trained to appreciate evidence when it is presented to him; he can sift the good from the bad; and generally he is regarded as being able to arrive at an independent decision on a basis of principle.
The only other matter I want to mention is a second statement that the honorable member for Higinbotham made. He said that certain economists did not wish to go into the witness box in these cases. A first rank economist, who is able to support his conclusions with reasons when scratched, has no need to fear. Indeed, some top ranking economists do attend. But the man who attends - this might happen to an economist who was not of the first rank, or who was not able to support his conclusions with adequate reasons and who, when cross-examined, finds that even his additions are incorrect - naturally feels somewhat disheartened by the experience and is reluctant to return. But I suggest that those who are competent are willing to attend. Those who attend with a particular point of view and find when its challenged that they are unable to support it adequately with reasons are disappointed.
.- This Bill achieves little in improving the claims and penalty clauses of the Conciliation and Arbitration Act as they relate to the trade union movement. Government speakers to date have done little to convince themselves or anybody listening to them that this measure will do anything to improve those provisions. As the honorable member for Stirling (Mr. Webb) has indicated, the Opposition has no objection to the second reading of the Bill but we on the Opposition side firmly maintain that it should provide for the repeal of the injunction and contempt provisions of the Act. The obnoxious penal provisions of the Act under which a union can be fined have been used - and while they remain in the Act they will continue to be used - as a vicious weapon of punishment to subdue the worker and the trade union movement generally in their fight for better living conditions.
I go so far as to say that the penal provisions of the Act have caused more hostility in the trade union movement than all other things put together. They will always be the no man’s land which separates the trade union movement and the workers generally from the employers. They are without doubt the barrier that prevents the co-operation and good public relations so badly needed in these modern times in the industrial field. During the years that they have operated, they have never achieved anything in bringing about a better understanding in industry, particularly as it concerns trade unions.
In spite of these provisions, however, it is true that over the years the trade union movement has seen great progress. Its achievements in winning sick leave, annual leave, long service leave, increased annual holidays, payments for public holidays, compensation benefits and other improvements in working conditions and entitlements, such as a shorter working week, are of great merit. Needless to say these entitlements were not won easily. They were not handed to the workers on a silver platter. They are the result of many trials, tribulations, sweat, blood and tears, Many people in the community, and many persons in this House, have no idea of the history of the privileges they enjoy today. Persecution, prosecution, imprisonment and other degrading experiences were the ingredients of the cup of bitterness that the workers had to swallow in their fight for better conditions.
Concerning the trade union movement and the penal provisions, it is interesting to note that from 1950 up to the present time the cost of industrial litigation in Australia to the trade unions has been about £44,000 in fines and £33,000 in legal costs. It is a well known fact that employers have arranged for Queen’s Counsel - and the previous speaker (Mr. Bowen) is a Queen’s Counsel - to appear on their behalf in cases involving the penal clauses with the object of making the costs against the unions heavy. This procedure is taken with the full knowledge that costs will be awarded against the unions. It is a move which is purposely designed to intimidate and to pauperise the unions, but in spite of these regulations and in spite of the excessive fines and extortionate legal costs, the trade union movement has affirmed again and again the fundamental right of workers to strike; and their demand for the repeal of the penal clauses in the Act grows stronger every day.
In his second reading speech the Minister for Labour and National Service (Mr. McMahon) said -
I often hear the argument that the mere resort to the sanctions provisions, let alone their existence, contributes to industrial unrest. This is the type of propaganda which seeks to confuse the symptom with the illness.
The Minister admits, in his own words, that there is an illness, but he is not prepared to contribute any measures to cure the illness. In referring to the extent to which the sanction provisions have been used the Minister said -
The following sets of figures covering the last fifteen years illustrate the extent to which the sanctions provisions have been used: The number of strikes per annum has averaged 1,248 and the number of applications under section 109, and its predecessor section 29, have averaged 26. To carry the illustration still further, the number of orders made absolute on applications under the sections I have mentioned has averaged 14. Now, it is difficult to argue from these figures that there has been an excessive resort to sanctions.
I am going to put a case for the unions in relation to this matter which differs substantially from the case stated by the Minister. Let us examine the fines and legal costs which have arisen from the application of the penal provisions since 1950. In 1950 two unions were involved and fines totalling £200 were imposed. In 1952 one union was fined £500. In 1954 five unions were fined a total of £3,350, with legal costs amounting to £512 9s. lid. In 1955 four unions were fined a total of £1,000 with £322 5s. 9d. legal costs. In 1956 two unions were fined a total of £1,150 with £310 7s. 6d. legal costs. In 1957 three unions were fined a total of £100 with £1,632 16s. lOd. legal costs. In 1958 two unions were fined a total of £650 with £500 legal costs. In 1959 four unions were fined a total of £245 with £1,906 15s. 4d. in legal costs. In I960 four unions were fined a total of £3,405 with £9,504 19s. lOd. legal costs. In 1961 five unions were fined £1,850 with £5,391 14s. 5d. legal costs. In 1962 thirteen unions were fined a total of £9,050 - and this was the year in which the Waterside Workers Federation of Australia was fined a total of £4,800 - and legal costs totalled £12,166 4s. Id. In 1963 fines totalling £12,800 were imposed - £9,200 on the Waterside Workers Federation - and legal costs amounted to £775 18s. 5d.
A total of ten unions were involved in 1963. In 1964, up to the 17th March, eleven unions were fined a total of £8,900. Since 1950 the fines imposed on unions have totalled £43,200 and legal costs have aggregated £33,023 12s. Id.
It can be seen from these figures that the penalties have not achieved the least semblance of good public relations between the unions and the employers. The sum total of their effect has been to create hostility and more hostility. So it will be seen that events have proved that the retention of the penal provisions has caused a malignant disease in the body corporate of the trade union movement which spreads further and further day by day. But in spite of this, the Minister has said that the Government has no intention of removing the penal provisions. Inside this House, and outside it, the Minister frequently refers to the employers and their problems with relation to awards. Indeed, in the opinion of the Minister, the employers are always right and the unions are always wrong. That has ever been his view.
– That is unfair.
– In the opinion of the honorable member, they have never been right. Not one word is ever uttered about the problems of the trade union movement in their endeavours to have employers honour their obligations under awards. The cause of the complaint, so far as the unions are concerned, is always submerged in the wave of criticism that is levelled at the unions. In fact, a perusal of those sections of the Act which contain the penal provisions will reveal that there has been little alteration to the penal provisions since 1949.
Let us examine these provisions. Section 5 has not been altered since 1949; nor has section 29. There has been no alteration to sections 41 and 42 since 1949. Section 42 confers power on a member of the Commission and a person authorised by a member of the Commission to inspect any work places during working hours and provides that hindering or obstructing such inspection, or making false or misleading statements to such inspector is punishable by the imposition of a penalty of £10. 1 wonder how much the worker would be punished if he made false or misleading statements. Section 46 has not been altered since 1949; nor has section 62. Some amendments have been made to sections 109 and 111, but section 122 has never been altered. Again, there have been no alterations to sections 125, 141, 143, 154, 158, 160, 166, 169, 170a, 177, 183, 184, 185, 186, 188 or 197 since 1949. In all, 27 sections containing penal provisions have remained unaltered since 1949. That is the position in this day and age.
It is true to say that amendments were made to the penal provisions in 1951, 1956 and 1958, but those alterations did not help the trade union movement to any extent. Further amendments have been made since that time, but none has been made to the penal provisions. Indeed, on reading this document, one is led to look upon it as a twin brother to the Crimes Act, to which reference was made by the honorable member for Stirling (Mr. Webb). The document leaves one in no doubt that the vicious use of the penal provisions is causing loss of confidence in conciliation and arbitration and, as I said previously, is destroying goodwill in the industrial movement instead of fostering it. Is it any wonder that the objection which the trade union movement has to these provisions is such that the trade union movement is determined to take the strongest possible action to secure the repeal of the penal sections of the Commonwealth Conciliation and Arbitration Act, which are used to initiate the imposition of heavy costs and fines on the unions? Although the Minister suggests that the penal provisions are a cure for all industrial ailments, the trade union movement has found it necessary to warn the Minister and the Government in this way -
That penal action by governments or employers against unions which are involved in industrial action authorised 01 undertaken by the A.C.T.U. or State branches must inevitably bc met by the trade union movement taking its own practical steps to bring industrial justice within the community.
This sort of reasoning, however, is considered by the rabid Conservatives of this Government to be Communistic. Indeed, history will reveal that right down through the ages whenever the worker has tried to protect his rights and obtain the highest return for his labour, which is the only commodity he has to sell, it has ever been the same. This leads me to say that there are no penalties on those persons who brazenly flaunt the fat dividends and huge profits they gain on the commodities they sell, commodities which, by the way, are the result of the sweat, labour and ability of the people they employ.
To listen to the Minister and the Government speakers, one would be led to think that they are the very models of rectitude and that all their thoughts demonstrate the essence of solicitude for the problems of the trade union movement. But this illusion is shattered by the great delight the Minister takes at every opportunity when answering inspired questions in this House - and the honorable member for Higinbotham (Mr. Chipp is a notable example of those who ask such questions - to label the waterside workers and all those connected with industrial disputes as Commos or persons inspired by Communists. Quite frankly, I believe that, in the whole length of time for which he has occupied the office of Minister for Labour and National Service, the Minister has never taken the trouble personally to investigate the real causes of any industrial dispute. In fact, the attitude which he invariably adopts suggests that he is very antiworking class. An example of the attitude he adopts is featured in the following article which makes reference to the attitude of the Minister and a man named Waite -
BID TO INFLUENCE WAGE VERDICT.
The A.C.T.U. interstate executive yesterday claimed that a Federal Minister and an employers’ organisation leader were trying to influence the Arbitration Commission- to which the honorable member for Blaxland referred - to deny wage levels that it might consider industry could pay.
Those named were the Minister for Labour, Mr. McMahon, and the president of the Australian Metals Industries Association, Mr. L. H. Waite.
The executive said that the statements conveniently omitted to stress that the Arbitration Commission only determined the minimum wage that employers could pay without committing a breach of the award.
Mr. McMahon said that full employment set closer limits on how far one employer could attract labor by higher wages without starting a process of raising the general level of wages, costs and prices.
There is also a risk that over-award payments are seen to be evidence of capacity to pay higher award rates.
Such has always been the case. Whenever the workers can get higher wages for the labour they are prepared to sell there is always this great move to knock them down, or to try to influence the authorities who are appointed to give wage justice to reverse the decision they have made, or to try to twist and contort it to the detriment of the workers. The reverse is the case, however, as far as the bosses are concerned. One would think that in this day and age, when we are discussing industrial problems, and when legislation of this sort is brought before the House, with the knowledge that the Minister or his Department must have about the accelerated advance of automation in our midst, some plan or provision would be announced to meet this threat. The reverse, however, is the case, for, only recently, we read that the Prime Minister (Sir Robert Menzies) had informed Australia and the world at large that there is nothing to fear from automation. I would suggest that the Minister or the Prime Minister should advance this idea to the coalminers and workers in some other industries I could name. I further suggest that if the Minister is anxious to cure industrial ailments there is one avenue in which he could interest himself. I refer to automation and the damaging effect that automation must have on certain sections of the community when its full impact is felt in this country.
I would be interested to hear how these antiquated laws providing for persecution and injustice are going to apply when the electronic age is in full bloom in this country and the transition from old methods to new ones is taking place. It will be interesting to see how regulations that belong to the era of the chain gang and to the convict days in this country can be reconciled with the enlightened thinking of the modern age and how they can be applied in times of industrial unrest and anxiety that will accompany the advent of that modern age. Speaking of enlightened thinking and its relation to the penalty clauses of the Conciliation and Arbitration Act, I seem to remember the time when the Seamen’s Union was fined because its members insisted on their just right to say whether they should work on Sunday or not.
On the other side of the scale, perhaps one of the most remarkable features of the penal regulations is that every time a demand is made for their abolition there is a mad rush by the employers to ensure their retention. I suppose this can be understood when one realises that seldom, if ever, are the employers in danger of having the penal clauses invoked against them. On the few occasions on which the penal provisions have been invoked against the employers, the punishment imposed has been infinitesimal in comparison to the punishment inflicted from time to time on the workers under these provisions. In these sections of the legislation the employers can always find, without looking too hard, an instrument to force workers to go back to work under conditions that are abhorrent to them. They can also find in them an instrument for deterring men from striking for fear of savage penalties that may be imposed upon them. If a union fails to carry out an order of the Court, no matter how harsh that order may be, the union is guilty of contempt. The penalty for this is a fine of up to £500 in the case of an organisation and £200 in the case of an official of a union. Indeed, every striking member of a trade union may be fined £50 for refusing to carry out a court order, and in addition to the fine so imposed the court may, if it wishes, impose another contempt penalty on the union and on the men for every day on which a strike continues. In addition the union concerned will have the legal costs of the employers charged against it, while it must, of course, pay the costs of its own legal representation.
– How often are these penalties imposed?
– Just keep quiet and you might learn something. You did not contribute too much to the debate. So harshly do these provisions operate that one worker had a most severe penalty imposed on him because he had the temerity to criticise a decision that the court had made. In spite of all the intimidation to which it it subjected, the trade union movement will never forfeit the right to strike, and the sooner this is realised the better it will be for all. I say that men are just as much entitled to strike when not satisfied with their wages and conditions ‘as other members of the community are entitled to withhold their products from the market when the prices do not suit them, because this is virtually a strike against conditions no matter how one may twist or contort the facts.
Referring again to the penal provisions of the legislation I might mention a traditional right that has been a feature of unionism ever since there has been unionism; that is the right of the worker to put his hand in his pocket and give a few shillings to help his mates who are on strike fighting for better conditions. It is sad to reflect that at some future time history may reveal how men have been penalised by the court for this kind of Christian act of assistance to their comrades. Having in mind this kind of vicious punishment I am bound to say that the penal clauses of the arbitration legislation will never, the Minister’s assertions to the contrary, cure the ills of the trade union movement. Indeed, they can have only one result; that is dissatisfaction, which is now widespread and is increasing more and more as the years go by. I think I would be safe in saying that in Australia today there are many unions that are prepared to ignore the courts and that prefer to use their industrial strength and power to secure their entitlements. But unions that choose to do this are condemned, even if their action has been taken under extreme provocation. If a union elects to act in this way you immediately hear honorable members on the Government side, and representatives of the employers, declaring that the action is industrial anarchy resulting from Communist conspiracy. This kind of talk is designed to inflame public opinion against the men and the union and to divert attention from the provocation that caused the action to be taken.
In the newspaper article to which I referred a while ago the Minister expressed concern and fear that the Conciliation and Arbitration Commission might give wage justice to the workers, thus upsetting the economic balance of the country. Let me say that never in the 10 years in which I have been in this House have I heard from him one word about the fat profits that the industrial moguls are making in this affluent society in which there are 600,000 people living on salaries of £17 10s. a week and 900.000 on salaries between £17 10s. and £21 a week.
I say in conclusion that if the Government and the Minister genuinely wish to promote peace and better understanding between employer and employee they can make a tremendous contribution towards this end by repealing the obnoxious provisions of the Conciliation and Arbitration Act providing for injunctions and the imposition on unions of penalties for contempt. I am sure that in this day and age the people deserve and are justly entitled to better treatment than having thrust upon them penalties which are relics of the convict days and the chain gang.
.- The Opposition has sought to deflect attention from the obvious and substantial merits of the Bill before the House by endeavouring to sustain an argument for abolishing sections of the Conciliation and Arbitration Act which outside this Parliament, it can fairly be said, are much more violently opposed by those members of the trade union movement who are militant and could be described as irresponsible than by the more responsible trade union leaders. The fact that on this occasion the Opposition seeks to sustain an argument in favour of the abolition of the penal sections of the Act is a fair measure, if another one were needed, of the political irresponsibility of the Opposition.
I do not think we should allow our attention to be deflected from the clear merits of the Bill. Let me say, first, that we have here no isolated instance of constructive and imaginative thinking on the part of the Government in the field of industrial relations. This is part of a pattern. The core of the measure is clause 6, which proposes to insert in the principal Act a new section, 109a. This measure is constructive and broadminded. It is calculated to induce parties to industrial disputes to have more frequent resort to conciliation and negotiation. The way it sets about doing this is to provide, first, that where there is a threatened breach of an order or award, an employer may not seek an injunction to restrain an organisation or person from committing that breach unless he gives notice without delay of the threat. This provision in itself is designed to bring about a situation in which the Commission, having had notice of a threatened dispute, will have time, before things get too serious or too far out of control, to move in and make available to the parties its conciliatory apparatus. A further incentive to conciliation and negotiation is to be found in clause 6, in that provision is made that no application for an injunction or for a mandatory order may be made to the court until 14 days have elapsed, or such shorter number of days as may fit the particular circumstances of the case, from the date of the notification of a threatened dispute. Here again we have a provision that is designed to give the parties time to cool off, to compose their differences and to allow commonsense to take control over less worthy motives and feelings.
Of course, as the Minister for Labour and National Service (Mr. McMahon) explained in his second reading speech, the emphasis on the desirability of conciliation and negotiation is to be carried through into the regulations which the Government proposes to promulgate under the Bill when it is passed. We have here - I shall spend a little time on it - a proposal to enshrine in the regulations a provision that a party who moves for an injunction to restrain an actual breach of an award will not be entitled to his costs, even if successful, unless he gives notice of the threat of a breach when the threat is apparent to him. That, if I may say so, is a sensible, commonsense provision designed to give a positive incentive to people in industrial disputes to try to bring about a quick settlement.
I will not enter into the debate that has occurred as a side issue on the suitability of lawyers to arbitrate or to adjudicate in industrial disputes. Far be it from me to offer any opinion on that contentious subject. It may be thought by some that my ideas are prejudiced. Be that as it may. But I do say it is a thoroughly good idea that the regulations proposed by the Minister will make it clear that in cases where the Court is asked to issue an injunction to restrain breaches of an award, the costs of two counsel will not be allowed unless special circumstances are found by the Court to obtain. I regard that as a thoroughly justifiable provision.
I commenced my remarks by saying that this measure falls into a pattern. It falls into a pattern of constructive and imaginative thinking by the Government over the years in this important area of industrial relations. If I may, I shall take the time of the House for a few moments to give some other instances to make the point that this is but part of a pattern. In 1963, the Minister for Labour and National Service convened a national conference to examine the problems of the stevedoring industry with a view to seeking ways and means of finding industrial peace in this industry, which is of such tremendous importance to us as an exporting country but which has, as we all know to our sorrow, been characterised by industrial unrest and industrial disturbance over so many years.
As a result of the convening of that conference in 1 963, industrial relations committees were set up. This was an excellent concept even if, unfortunately to relate, the committees have not worked out very well in practice. The Minister was responsible for this whole idea, which was that the committees would iron out matters of dispute by discussion or negotiation between the interested parties without involving a large part of the labour force on the waterfront in something of the nature of a port stoppage. The committees were designed primarily - not wholly but primarily - to localise and minimise the ambit of industrial disputes about a particular issue on the waterfront.
At the same time as these committees were set up, we had in 1963 the suspension of section 52a of the Stevedoring Industry Act. To put it shortly, this was the section which provided that where there was a port stoppage, the Australian Stevedoring Industry Authority was authorised to make a declaration, the result of which would be to deprive the waterside workers involved in the stoppage of attendance money for four days in respect of each day’s stoppage.
– That included time that they were on their holidays, too.
– Despite the rather unintelligible interjection of my honorable friend from East Sydney, all I am saying is that the two instances I have given make it clear that this Government’s conduct over the years falls into a pattern of constructive thinking and imaginative action designed to achieve peace in industry, and there is no decent Australian who wants anything more than peace in industry unless it be safety for our children and ourselves. This is not all. Another instance of this consistent policy occurred in 1964 when we had the very serious dispute between Qantas Empire Airways Ltd. and its pilots over the renewal of their employment contracts. On this occasion, the Minister made available the services of a private conciliator or negotiator in the person of Mr. Apsey. This Government has not stuck to a narrow unimaginative approach. It has been broad-minded and entirely sensible in its industrial relations policies.
I support the Bill with great pleasure and I turn now to the amendment. It strikes me that the Opposition in posing this amendment, in which the House is asked to approve of the idea that the penal provisions of the Conciliation and Arbitration Act should be repealed, is bringing out of the stable a horse that it would not dare to run if it were in government. As I said earlier in my speech, this is an example of political irresponsibility. The attitude taken by the Opposition today is quite at odds with the attitude taken by responsible members of the trade union movement over the years and by a Labour Government in New South Wales in the last two years.
Let us look at the policy of Labour when it has been in government in the Federal Parliament on the question of penal clauses in the Conciliation and Arbitration Act. This afternoon I heard some remarks made by the honorable member for Stirling (Mr. Webb) and I think also by my friend the honorable member for Blaxland (Mr. E. James Harrison) which suggested that, when Labour was in power in this Parliament prior to 1949, the Act which it brought on to the statute book did not contain any provision for penal sanctions for breaches of awards. That is quite wrong, as I shall show.
If one goes back to the amendments to the Commonwealth Conciliation and Arbitration Act introduced in 1947 by the Chifley Government, one finds that by section 8 of the 1947 Act, the principal Act was amended so as to make the Commonwealth Court of Conciliation and Arbitration, as the tribunal then was, a superior court of record. By section 29 of the principal Act, as amended by the 1947 Act, that Court was given power to order compliance with orders or awards and to grant injunctions, either to employers or to employees, to restrain any organisation from committing or continuing a breach of an award. The combined effect of the sections that I have mentioned needs to be noted in the light of some of the remarks that have been made by Opposition speakers today. The combined effect of these sections as they stood in 1947 was to confer on the Commonwealth Court of Conciliation and Arbitration an unlimited jurisdiction to punish for contempt of any order or injunction that it might make to restrain a breach of an order or award. It was not until 1956 that a fetter was placed on the power of the relevant tribunal to punish for contempt.
In 1956, a ceiling of £500 was introduced into the penal sections. So, from then on, the maximum pecuniary penalty that could be awarded for contempt of court constituted by failure to obey an order of the Court was £500. In 1947, under the Act as it stood when a Labour government was in office, the power of the Commonwealth Court of Conciliation and Arbitration to deal with contempt extended, not only to the imposition of a pecuniary penalty, but also to the ordering of imprisonment of the party in contempt if that party happened to be a person rather than an organisation. So, if one looks at the history of the matter, one will see that, in truth, this Government - a Liberal-Country Party Government - in 1956 mitigated the severity of the penal provisions by imposing this ceiling of £500.
So much for the policy of a Labour government in the Federal sphere up to 1949. Let us now look at the attitude of responsible trade union leaders to this question of the penal provisions of the Conciliation and Arbitration Act. Nobody could criticise Mr. Albert Monk for lack of responsibility. He is President of the Australian Council of Trade Unions, and he made some interesting remarks in September 1963 when addressing a congress of the A.C.T.U. at which 500 delegates were present. These remarks are very interesting in the present context. Mr. Monk is reported in the Melbourne “ Age “ of 18th September 1963 as having said -
You cannot - and I have seen it tried in various parts of the world - try to bring about complete repeal of legislation by strike action.
Mr. Monk was there referring to the penal provisions in the principal Act. His following words might well be pondered by Opposition members this evening. If they do ponder those words, they will see how inconsistent their attitude is with the expression of responsible opinion by Mr. Albert Monk in September 1963. He went on to say -
Try to bring about a complete revocation and you run into trouble.
Those are very wise words.
– Who said that?
– It was said by Mr. Albert Monk, President of the Australian Council of Trade Unions. I suppose that my honorable friend opposite has heard of him. I suppose also that the honorable member would not seek to suggest to this House that Mr. Monk is not a responsible trade union leader. Indeed, he is a great deal more responsible than are some of the trade union leaders whose militant views have been sponsored in this House today by members of an irresponsible Opposition.
– If that is the best that my honorable friend from East Sydney can do, I can only say that he is well below his usually poor form.
– The honorable member is a comedian. He should be performing at the Tivoli.
– Why should the honorable member indulge in a spate of self description, Sir? So much for what Mr. Albert Monk said in 1963. I am sorry to introduce this sordid political note into the discussion, but it may be as well for honorable members opposite who have already spoken in this debate to learn what decent trade union leaders, and also responsible Labour Ministers, as I shall demonstrate in a moment, have said outside this Parliament. It may be a good idea for honorable members opposite to ponder these things. I suppose that from tomorrow, if not from tonight, the Honorable J. J. Maloney can be described as the former Minister for
Labour and Industry in New South Wales. In 1963, he told a deputation from the trade unions that removal of the penal provisions from the New South Wales Industrial Arbitration Act would destroy the arbitration system in that State. With those sentiments I could not agree more heartily.
But the matter goes further. In June 1963, the Transport Workers Union of Australia proposed to the conference of the New South Wales Branch of the Australian Labour Party a resolution on this very question. I seem to remember, from scattered reading that I have done in the newspapers and elsewhere, that the New South Wales Branch of that Union can fairly be described as militant and not averse to indulging in strikes that some people - and certainly I - would at times describe as highly irresponsible. At the June 1963 conference of the New South Wales Branch of the Labour Party, this Union proposed a resolution calling on members of the Party to seek from Labour candidates assurances that they would work for the repeal of the penal clauses in the New South Wales Industrial Arbitration Act. I need hardly interpolate that the penal clauses of the New South Wales Act were at that time substantially the same, in principle and in broad effect, as the penal clauses in the Commonwealth Act, although the New South Wales Act provided for a remedy, not by way of injunction, but by way of substantial fines. In June of 1964, members of the caucus of the Parliamentary Labour Party in New South Wales, no doubt feeling the hot breath of the Transport Workers Union on their backs, and doubtless bearing in mind the fact that an election was coming up early in 1965, brought to bear on the Labour Government of that State considerable pressure to repeal the penal clauses in the New South Wales Act. It is somewhat significant that the State Government - a Labour Government, I repeat - withstood that pressure and declined to repeal the penal provisions in the New South Wales legislation.
I suggest that all these are interesting facts, because they serve to show that responsible people in the Labour movement, when in office, do not advocate the course that the Opposition in this House advocates in this debate. There is a very good reason why responsible Labour men when in government have not repealed the penal clauses. There is a very good reason why the Chifley Government, in 1947, did not repeal the penal clauses. Penal clauses are not clauses to be lightly or freely resorted to, and this measure makes that perfectly clear. There should be negotiation and conciliation first and, after that, arbitration. But there must be in any well ordered community where the rule of law governs our relations with each other, a sanction against irresponsible wildcat strikes which are founded on unjust claims and which are designed to blackmail employers into conceding, to the public detriment, claims that are not just.
In this debate tonight I have heard a lot about the right to strike. I for one will not deny for one moment that there is a right to strike. I will not deny for one moment that it is an inalienable right in a free community. But let me hasten to say that it is a right which is not without qualification. It is a right which cannot be without qualification in a community which prides itself upon being ruled by law.
– How would the honorable member qualify it?
– If I might answer the honorable member for Kingsford-Smith, I would qualify it in this way: There must be times occasionally when the right must give way to the public interest.
– Then how is that an unqualified right?
– My honorable friend from Kingsford-Smith is a little behind the ball. I will not go back over the ground again. I like my friend from KinksfordSmith and will not be critical of him but he is not with it.
– I am behind the ball?
– Yes, a long way behind the ball and offside as well. The qualification on the right to strike is that it must not be used to blackmail the public or against public interest. Under our system of conciliation and arbitration the right to strike is protected and the qualification is imposed in the public interest. This is done by reserving to the tribunals which deal with these matters the power to insert bans clauses in industrial awards. Some honorable members opposite have tried to show that these bans clauses are lightly inserted in awards. As my honorable friend from
Parramatta (Mr. Bowen) said tonight, the tribunals insert these clauses in awards as a matter of last resort - and so they should. Thereby the public is protected against the unwise and selfish use of the right to strike.
In this debate tonight I have heard, time and time again, honorable members opposite use picturesque language to describe what they regard as the iniquities of the penal clauses. I am never very impressed with arguments that consist in describing things with vivid and colourful names and leaving reason behind. If the honorable member for Gellibrand (Mr. Mclvor) used the word “ vicious “ once tonight he used it a dozen times. Frankly, that extravagant language leaves me somewhat unimpressed. A little reasoned argument is worth more than a lot of picturesque adjectives.
I have shown honorable members that in moving this amendment the Opposition is swimming against the tide of responsible trade union opinion, as evidenced by the statements of Mr. Albert Monk; that it is wittingly or unwittingly promoting the cause of those irresponsible members of the trade union movement - this great movement which is of tremendous importance to our community life - whose behaviour is characterised more by militancy and irresponsibility than by considerations of the good of the community. I hope, therefore, that, even though late in the day, the Opposition on this occasion will repent its decision to move the amendment. As I said earlier, I have great pleasure in supporting the Bill.
.- Mr. Deputy Speaker, I support the amendment moved by the honorable member for Stirling (Mr. Webb) which, if carried, will oblige the Government to bring back to this Parliament legislation designed to create harmony and trust in the industrial community in the place of the hatred which exists in many sections of this field today. This unco-operative spirit, which no-one can deny does exist in some sections between the opposing industrial parties, is in my opinion extending month by month. It is my honest belief, after many years of practical experience in industrial relations, that one of the main causes of this situation is the penal provisions of the Commonwealth Conciliation and Arbitration Act.
My reasons for saying this are based on three main grounds. First, the vast majority of workers in industry in Australia firmly support the right to strike if they believe that the wages and conditions offered to them are unfair or unsatisfactory. They support this right in just the same way as any other section of the community believes that it is entitled to withhold its services in similar circumstances. I want to place on record that I subscribe wholeheartedly to that view. Secondly, I believe that the present legislation is, on the one hand, designed to hamstring and frustrate workers and their organisations and, on the other, to encourage employers to bypass conciliation and, by the use of penalties, force arbitration.
Let us consider the court records relating to this Act over recent years. All honorable members know that there have been many decisions which imposed heavy penalties on the unions but few, if any, that have imposed penalties on employers. A typical example of the Act being biased towards employers ‘is shown by the Ford case of 1962. In this matter the Commonwealth Shipowners Association, with the Ford Motor Co. of Aust. Ltd. intervening, took action under this Act in an endeavour to have a bans and limitations clause inserted in the Clerks (Shipping) Award. This action was taken in a dispute over the handling of Ford cargoes on the Melbourne wharfs. The dispute arose because the Ford company refused representations from the Federated Clerks Union of Australia to have a union-company agreement involving union membership on similar lines to that in existence between the company and the Vehicle Builders Employees Federation of Australia. The matter came before Conciliation Commissioner Findlay who refused the application. In his decision the Commissioner said that he had had the parties together on several occasions. He found it impossible to escape the conclusion that the Ford motor company was most unreasonable in denying the Federated Clerks Union of Australia the same consideration that it extended to the Vehicle Builders Employees Federation of Australia. He suggested that the dispute between the clerks and the Ford motor organisation should be settled on the basis of a negotiated agreement similar to that which was in existence between the company and the Vehicle
Builders Employees Federation. This decision of Commissioner Findlay was later the subject of an appeal to the Commonwealth Conciliation and Arbitration Commission. The appeal was dismissed. The reaction of the Ford company was not as honorable members have bren putting to us. Its reaction was not to accept the umpire’s decision but to dismiss or stand down some 600 of its employees and thus commit a clear breach of the award.
Members of the Vehicle Builders Employees Federation of Australia were not involved at all in the original dispute in connection with which Commissioner Findlay found that the Ford motor company was the guilty party. The Federation made application to the court under section 1 09 of the Act. The basis of this application was that the stand down of 600 men was a breach of an award and that the company, as previously stated by Commissioner Findlay, was unreasonable in its attitude to the Federated Clerks Union of Australia, and as such was responsible for the dispute on the waterfront. This case went before the full Industrial Court and the application of the union was dismissed.
Under one section of the Act, the employer was deemed to be the guilty party and the cause of the original dispute, whereas under another section his action was considered to be correct. In the final analysis the only ones to get hurt were the workers - the 600 people who were stood down. It is interesting to note that in reporting this case Nolan and Cohen’s “Federal Industrial Law “, third edition, at page 1 60 submitted with respect that the Court’s reasoning was, in places, based on grounds which were expressed in terms somewhat wider than necessary for the facts of the case.
Another biased situation which can arise under the Act is best portrayed by a simple illustration. Company A employs, say, 20 fitters and pays them £25 per week, and company B over the road is paying £27 per week for similar work. If the 20 men employed by company A give notice in the normal manner in order to work for company B - and thus gain £2 per week increase in wages - their action can be construed under this Act as a strike. However, no action can be taken against employers who do exactly the same thing. As everyone in this House knows, in 1960 and 1961 employers stood down thousands of workers all over Australia. The workers were able and willing to work, but there was no provision in this Act for them to take action against the employers.
The honorable member for Parramatta (Mr. Bowen) and the honorable member for Parkes (Mr. Hughes) tried to make the point that before the sanctions of the Act can apply, the relevant award must have included in it a bans clause. That is very true. However, the honorable members went on to say that a bans clause would not be included in an award lightly or without real justification. AH I can say to that is that under the Federal vehicle industry award there had not been a strike for 20 years, but the week after the first strike took place - and it was only of a minor nature and concerned a very small proportion of the union membership - the company made application under the Act to have a bans clause inserted in the award. Without hesitation the Court included such a clause in the award.
My third reason is perhaps the most important of all. I ask: What is achieved by the use of the contempt and penal provisions of the Act? It is true that in most cases work is resumed under pressure. But this does not resolve the matter in dispute with the result that you have a festering sore of discontent and bitterness between the parties and an unco-operative work force. This situation in the final analysis must result in further and more bitter disputes.
It is of particular interest to study the statistics in relation to time lost through strikes in Great Britain and America where no contempt or penal provisions apply as they do in Australia. The figures clearly show, no matter which way you look at them, that no substantial case can be made in support of the continuance of penal and contempt provisions in the Australian legislation. The latest figures available to me, which have been supplied by the statistical department of the Commonwealth Parliamentary Library, are for the year 1963. During that year the working days lost in strikes per person were .18 in Australia, .08 in Great Britain and .23 in America. For the three preceding years the figures were .17 in Australia, .15 in Great Britain and .24 in America. This pattern is consistent right back to 1950. In other words time lost through strikes is less in Great Britain than in Australia while at the same time the American figure is higher than that for Australia.
Using these figures as a guide it is clear that the illusion held by this Government that severe penal legislation is necessary to contain strikes is not borne out by the English record where no similar legislation exists and the time lost due to strikes is lower than in Australia. If, on the other hand, the Government believes that because Australia’s record is slightly worse than Great Britain’s, it is necessary to include heavy penalties in our Act, how does this reasoning line up with the fact that America’s record is far worse than Australia’s and yet that country has not thought it necessary or desirable to introduce legislation such as exists in Australia?
– The honorable member does not want conciliation and arbitration?
– I will come to that in a minute. During the course of this debate several members on the Government side have used the occasion to make an unwarranted attack on Australian waterside workers. Most of the members concerned would not know a waterside worker if they saw one, and what is more important, would have no idea of the real situation on the Australian waterfront. These members, who are experts in the use of the smear, follow closely the tactics used by the infamous Nazi, Dr. Goebbels, in the belief that if you say things often enough, whether they are true or false, many people will believe them.
As the representative in this Parliament of the electors of Port Adelaide where the majority of South Australian waterside workers live and work, and prior to coming here having been closely associated with these men in the industrial field over a long period of years, I think that I can speak with some authority.
– They have a good football team.
– Yes, they have. I have no reason to believe that their counterparts in other States are not of similar type and these men in South Australia are a truly representative gathering of honest, hard working Australian citizens. This of course, cannot be said for their profit-hungry, foreign bosses. Many waterside workers are ex-servicemen. In the main they are good husbands and fathers, whilst their record in civic affairs and in cases of national emergency is second to none.
– As good as the honorable member’s?
– Yes. Their generosity to cases of hardship, sickness, orphanages and other charitable appeals is outstanding, and each time that our State has experienced a severe flood or bushfire they have always been one of the first properly organised bodies to rush to assist. It appears to me that the whole basis of the dislike of Government supporters for waterside workers is because the watersiders, like all typical Australians, have a great regard for principle and fairplay and, above all, have, to use an Australianism, the guts to stand up against their millionaire foreign employers for reasonable and fair wages and working conditions. I strongly object to many of the unwarranted and unbiased remarks made by Government supporters against the watersiders and desire to state that I, for one, am proud and honoured to be a personal friend of many of these decent Australian citizens and their families.
Having spent the major part of my adult life closely associated with industry and industrial relations which of necessity kept me in close touch with this Act and awards made under its provisions, I cannot escape the almost unbelievable conclusion that the existing Act provokes disputes rather than prevents them. The Act is filled with references to penalties, mostly against the worker, and is worded in complicated and obscure legal jargon upon which even the learned judges at times cannot reach agreement. And, worse still, in this highly technical and automated age it continues to make provision only for the setting up of minimum legal wages on a national basis. It does, however, create lush pastures for the legal profession, as the present AttorneyGeneral (Mr. Snedden) well knows to his personal good fortune. It is interesting to note that half the honorable members opposite who supported all these legal ramifications and this jargon were men from the legal profession.
I suggest we should look at how wages are fixed under the provisions of this Act. First, a national basic wage is arrived at mainly on the capacity of industry to pay. I assume that no-one would suggest that this part of the wage is based on the capacity of the highly technical, efficient and lucrative industries which make annual profits of more than £20 million and to be fair, they would not, or should not, be set on that basis in national industries such as railways, tramways, &c, which, because of their special significance to the community, are required to perform many losing functions and thus, in a strictly economical sense, are run at a loss. In an endeavour to state the case fairly, I suggest that the basic wage should be set on a figure midway between the highly profitable and not so profitable industries in the country. Now let us turn to the other part of the legal wage, that is the margin content. This is arrived at solely on the basis of skill and responsibility. In this regard the Commission still rigidly follows the dictum laid down by the late Judge Kelly that a fitter, who represents the yardstick for margins, requires the same amount of skill and responsibility no matter where he is employed and, as such, his margin should be the same. So we have in these wage fixing provisions of the Act no avenue to attain legal wages that takes into account new methods of production, productivity and profits. There is, I admit, a separate provision which allows the Commission to set piecework rates. However, in my long experience in industry I have found, particularly in the metal and manufacturing sections which employ the biggest proportion of our work force, that piecework is not practical or desirable and, as such, is opposed by the majority of employers and employees alike.
In order to overcome this intolerable position, I suggest to the Minister for Labour and National Service (Mr. McMahon) that a further wage fixing provision be included in the Act and spelt out in clear terms, such provision to provide unions with the opportunity to state a case on either an industry or individual company basis, without harassment from interveners, for an additional legal wage based upon modern industrial concepts and to take into account new concepts of skill, increased work tempo and resultant industrial fatigue, productivity and profits. I feel that this is long overdue and, if given effect, would do much to improve industrial relations. Some Government supporters have made great play of what arbitration has given to workers in Australia. I submit that it has given only minimum wages and working conditions. They have been the bare minimum. In recent years the major gains in wages made by the workers in this country have been achieved outside the arbitration system in the form of overaward payments. As to working conditions, such benefits as long service leave, the 40- hour week and three weeks annual leave came originally from State Labour Government legislation and were not put into awards covered by this Act until most workers in Australia already had them.
Whilst it is possible that the present Bill may make some slight improvement to the Act as a whole, it only tinkers with the problem. Consequently, I appeal to the Minister and the Government, even at this late stage, to accept the amendment proposed by the Opposition and then, as soon as possible, bring back to the Parliament re-drafted legislation without the contempt and penal provisions - legislation designed to bring harmony and good feeling back into industry and thus benefit workers, employers and the country alike.
.- I have listened with considerable interest to the honorable member for Port Adelaide (Mr. Birrell). I understand he was a trade union official before coming into this House. I appreciate his experience in industrial relations, but when he supports the amendment moved by the honorable member for Stirling (Mr. Webb) I can only feel that in so doing he is merely swimming with the tide. Surely the honorable member, with his experience, does not believe that if sections 109 and 111 of the Conciliation and Arbitration Act were repealed harmony would come to industry. I do not believe that he thinks that for one moment. I am concerned about certain aspects of industrial relations and with the honorable member’s contention that he does not support the system of conciliation and arbitration that we knew st well in this land. To suggest that our system has not brought great benefits to Australian trade unionists is to speak without paying proper regard to the facts which have -been revealed over the many years that the system has been in operation.
The measure before the House when shorn of all its frills is basically designed to encourage responsible discussions and negotiations between the parties representing the employer on the one side and employees on the other. To this extent the proposed amendment to the Act is very constructive and, in my opinion, very useful. But it is pleasing to note that the amendment does not seek to inhibit the use by employers or employees of sections 109 and 111 when the unions or the employers indulge in action which is in breach of the employment contract. Enforcement orders to curb or deal with irresponsible actions by unions or by employers are more than essential, especially in these days. The Minister for Labour and National Service (Mr. McMahon), in his second reading speech, said -
I believe that all responsible and reasonable people and people who have the interests of the nation at heart will welcome this undertaking. Of course, I expected that the Opposition would come forward with the amendment to the measure now before the House, as we have known over the years of its opposition to the retention of the enforcement sections of the Conciliation and Arbitration Act - sections 109 and 111. Now the Opposition is revealed in its true colours. Members of the Opposition are against the proper regulation of our conciliation and arbitration system. They seek to make good a promise to the Communist and left wing controlled unions to have the sanction provisions abolished. The fact that the Communists sought the abolition of the sanction provisions or the penal clauses, to use the emotive catchery is evidenced by a paragraph that appeared in the “ Branch News “ of 11th November 1963. The article was authorised by that rather notorious Communist and long time acquaintance of mine, Mr. Tom Nelson, the Secretary of the Sydney Branch of the Waterside Workers Federation. The paragraph reads -
Our Federation, by its sacrifices,- more emotional catcheries -
. . activity and unity have bad real-
I emphasise the word “ real “ - . . influence on the A.L.P. election programme for a National Shipping Line-
I draw the attention of honorable members to these words - . . abolition of the penal powers. . . .
We see in that Communist journal or pamphlet the early initiation of a campaign to have sections 109 and 111 removed from the Conciliation and Arbitration Act.
Almost hidden from notice in the policy speech delivered by the Leader of Opposition (Mr. Calwell) in November 1963, during the election campaign, was a paragraph which is very pertinent to my contention that the amendment before the House today was originally inspired by the Communist Party. The Leader of the Opposition said -
Early action will be taken to amend the pertinent penal provisions of sections 109 and 111 of the Conciliation and Arbitration Act.
That was the pay-off to the Communist and left wing controlled unions for their very substantial contributions to the Labour Party’s election funds. Anyone who says that that is not true is trying to hoodwink the public, and any honorable member opposite who says it here is trying to hoodwink the Parliament. However, unfortunately for honorable members opposite, they failed to gain office. So they had no chance to put their kamikaze plans into operation.
The next step was taken by the Australian Council of Trade Unions. On 19th May 1964, at a conference with the Prime Minister (Sir Robert Menzies) and the Minister for Labour and National Service, the Council sought, among other things, the repeal of sections 109 and 111. Here tonight, honorable members opposite, still faithful to their undertaking to the Communist and left wing controlled unions, trot out this ugly duckling once again. They seek to have this amending Bill amended in order to repeal sections 109 and 111.
One is led, by what we have heard in the course of this debate, to wonder whether a number of honorable members opposite want not only the repeal of the enforcement sections of the Act but also the abolition of the Act itself. In a recent debate the honorable member for Cunningham (Mr. Connor) gave me that impression when he asserted that the arbitration system was a shame and a scandal. I think those were his words. He went on, in typical fashion, to claim that the right of the unions to strike is fundamental. In my view, that is unmitigated nonsense. Of course, if a union wishes to strike, it can do so. If a person wishes to break a shop window he can do that. A person can do all sorts of things that are unlawful. But there are penalties which must be imposed in order properly to regulate our society.
The thing that worries me about the irresponsible statements that are made by honorable members opposite is that they show a complete irresponsibility to the legislation that is enacted by the Parliament and to the maintenance of law and order, for which the Parliament stands. That does not seem to worry them in the least. The Minister for Labour and National Service, in his second reading speech, said -
In my opinion, this statement has everything to commend it. But, unfortunately, a lot of irresponsibility is exhibited in industry today and a number of trade union leaders do not act reasonably. In my view - and also, I think, in the view of many other people - these trade union leaders are motivated by influences not related to genuine industrial grievances.
Under the Act as it is at present, an employer can apply immediately for an injunction under section 109 to restrain a union from carrying out its threat to breach an award or order or to pursue strike tactics, and can prosecute the union under section 1 1 i when an order made under section 109 is breached. The purpose of the Bill that we are discussing tonight is to require an employer to negotiate and to pursue the processes of conciliation. I believe that except in rare instances employers do just that. The Bill prescribes that before going to the court under section 109 the employer has to satisfy three conditions. First, the Commission must be notified of a breach or non-observance of an award which is likely to occur; such notification must be given without delay; and at least 14 days must elapse after the Commission has been notified before an order for compliance under section 109 can be sought.
I think it is obvious to all reasonable thinking people that the retention of the enforcement provisions is very necessary for a number of reasons. First of all, the orders as awards of the arbitration tribunal must be protected if they are to have any meaning. It is well to remind honorable members that enforcement orders apply to employers as well as to trade unions. It is interesting to note that m November 1962 a Labour Minister in New South Wales said that the penal clauses in the State Arbitration Act “ are an infinitely greater burden on employers than on employees “. I emphasise that this was a member of a Labour Government expressing his opinion in support of the retention of the enforcement provisions in the New South Wales Arbitration Act. He pointed out that in the 12 years to January 1962, a total of 7,936 cases involving defaulting employers had been registered and in the same period unions took part in 3,151 strikes. I draw attention to the fact, as he did, that penalties were imposed in respect of only 3 per cent, of those strikes.
It has been said that a heavy burden has been imposed on trade unions in meeting fines and legal costs. Of course it is obvious that if unions, which are registered under the Conciliation and Arbitration Act, obeyed the law and did not commit offences, they would not place themselves in a position where they were subject to fines and legal costs, and these costs would not be incurred. Apparently that does not seem to have an effect on the reasoning of members of the trade union movement. It is obvious that a section of the trade union movement claims the benefits of the Conciliation and Arbitration Act when decisions are given in its favour but avoids the Act if the union objectives conflict with the principles of the arbitration system. The cost of strikes; - a cost far greater than the enforcement costs - is the real financial burden borne by the employers and by the public. I particularly stress the public - an innocent and hapless body of citizens - which is held to ransom because of the attitude of militant trade unionism in not obeying the law of the land.
If there were no authority, as provided in sections 109 and 111, to enforce awards and orders, the Australian arbitration system, which has stood the test of time, would become completely ineffective. The rank and file trade unionist would lose very considerably from the destruction of the arbitration system. 1 recall that Mr. Cahill, who was then Premier of New South Wales, in supporting the retention of the penal clauses in the State Arbitration Act said that unionists would cut off their right arms if they attacked the penal clauses. However, we find that the Opposition is prepared to sacrifice the great bulk of decent trade unionists to pander to left wing and Communist trade union leaders who, it is important to note, have nothing to gain from industrial peace. They gain only when they are in a position to engage in industrial anarchy.
It must be remembered, too, that if the penal clauses were repealed the employers could also defy the courts at will. In other words, arbitration as a means of settling industrial disputes and of improving working conditions and wages would become a dead letter. The conciliation and arbitration system would be destroyed and the way would be open for an era of industrial lawlessness and of unfettered industrial anarchy - the overthrow of our national economy, the annihilation of our Australian way of life and the toppling of our high standards of living.
Referring to the contention by the A.C.T.U. that employers use the penal clauses instead of conciliation, I contend that this is not in accordance with fact but is sheer, unadulterated and blatant lying propaganda inspired by the Communists and left wing militants. How many instances are on record of unions referring disputes to the Commission for settlement by processes of conciliation? I say they are rare - very rare. Do not overlook the fact that the trade union movement has as much responsibility as employers in bringing its grievances before the Commission for either conciliatory processes or for determination by arbitration.
Concerning conciliation, I recall that the honorable member for Port Adelaide (Mr. Birrell) said that members on this side of the House would not know a waterside worker if they saw one. I think it can be held that I at least would know a waterside worker. I have associated with members of the Waterside Workers Federation of Australia for many years and I have a great respect for 95 per cent, of the members of that Federation. I have many friends in that membership so it would be untrue to say that I do not know what I am talking about when I speak of the efforts of ship owners to conciliate grievances. I am not speaking from theory or from the reading of books. I have had long years of practical experience in the realms of industrial relationships, in the fiery and turbulent era of the maritime industry and also of the metal trade industry, two of Australia’s most vital industries, both pregnant with industrial unrest.
Shipowners certainly follow the processes of conciliation. They have industrial officers of vast experience, expert in handling industrial situations and clothed with authority to settle disputes, ready at a moment’s notice to proceed to the source of a dispute and to settle grievances - real and unreal - by conciliatory methods. The Australian Stevedoring Industry Authority not only has its local representatives to settle disputes by conciliation but also inspectors who conciliate where there is trouble. Very rarely are grievances made known to the employers when walk off action is taken. I know that members opposite rear up in their seats when they hear the word “ shipowners “ because they have memories which were inspired originally by the Communists. At one time I was associated with shipowners. When 1 had members of the Maritime Council before me trying to have called off certain proceedings against two union officials, I well remember Mr. Eliot V. Elliott, who is very well known to honorable members opposite as the Communist Secretary of the Seamen’s Union, saying that if I would get off a particular part of my anatomy which he mentioned in an uncomplimentary way and go down to the waterfront when there is a dispute, I could settle the dispute by conciliatory means before it got out of hand. When he said that, the time was exactly 28 minutes past 11. As he spoke, the telephone rang and I was told that unless I awarded, as I had power to do, an extra man to a certain ship, work on the ship would stop at half -past 11. I had two minutes in which to do it. Fortunately I had Mr. Nelson in the room with other members of the Waterside Workers Federation. He immediately went into a huddle with other moderates who were in this little party and who could see just exactly what happens in the office of a shipowner’s representative and what chance the shipowner’s representative has of dealing with a dispute by conciliatory methods in circumstances such as this. It might also be said that, very often, disputes are indulged in by waterside workers without their having the slightest knowledge of what the dispute is about. I recall going to a wharf on one occasion and saying to the last man employed on the ship to come down the gangway: “What is the dispute about mate?” He said: “ I do not know “. He used a few epithets and then said: “ I will tell you this: Whatever the dispute is about, we will not be back to work this ship until our grievance is corrected.” He had not a clue, but he was walking off with all the others because, through the use of intimidation, these men had to do what they were told and there was nothing else for it. I mention that to give a small picture of what takes place on the waterfront. I repeat there is certainly no lack of conciliation introduced into the circles of the shipowners when dealing with grievances, whether they be real or, as 1 have indicated before, unreal. I would say, therefore, that the contention that the shipowners rush into court for sanctions against the Waterside Workers Federation without exploring every possible channel, both conciliatory and otherwise, available to them of settling a grievance and getting the job going again is completely without any foundation.
I also say without equivocation that the exploring of avenues of settlement with respect to grievances, not only by the shipowners in their particular industry, but by the Metal Trades Employers Association is conscientiously undertaken. The Metal Trades Employers Association has expert industrial officers who seek to settle disputes and here, again, it is only as a last resort that they apply for an order under section 109 of the Act. It is very important that the lie direct be given to the contention of the Opposition and members of the trade union movement that between the time when action is taken by the employer and the time the penalty is imposed they have no time to give consideration to whether they should, in fact, accept instruction, and return to work.
The processes of seeking the necessary order and then having that order dealt with under section 111 are very lengthy, as I think most honorable members will appreciate. So, if there is a dispute and it cannot be settled by negotiation, the union is advised that proceedings will be taken under section 109. Then, step by step, the employer proceeds to take the matter to the Industrial Court, seeking an order under section 109. If the order is obtained, the union is then served with it and, invariably, there is a time lapse before the next step is taken and there is plenty of rime for the union to reconsider its attitude and to save having to pay a fine. Then the process of serving the summons for contempt on the union takes place. Following that, proceedings are taken under section 111. But even at this stage it is not too late. Where a settlement is obtained, the Industrial Court can dismiss the information at the request of the employers. This has happened on very many occasions.
I have said in (his House, and publicly, that in my view the trade unions have no right to strike under our system of conciliation and arbitration. I believe that our system is based on contracts between employers and employees - that is by an award made by the Commission, or by an order of the Commission, or by agreements, or by practice and custom. So it boils down to the fact that trade unions, by virtue of their registration, have an obligation under the Conciliation and Arbitration Act to act responsibly and, as the Minister said in his second reading speech, to negotiate over grievances or, if that fails, to seek proper settlement by the Commission or appropriate tribunal. The onus in this respect is on the unions.
As my time has almost expired, let me say that I am very pleased that the Minister has brought forward this Bill to further amend the Conciliation and Arbitration Act. I feel that the Bill is a constructive one and one wh’ich should bring the parties closer together. At the same time, I strongly condemn and oppose the move by the Opposition to seek the abolition of the enforcement orders because such abolition would do Australia’s industrial development no good. In fact, it could only lead to the wrecking of our industrial development. I therefore support the Bill.
.- I rise to support the amendment moved by the honorable member for Stirling (Mr. Webb). I think it was Lord Acton who said that all power corrupts and that absolute power corrupts absolutely. The amendments that are now before the House for consideration are nothing more than one more step in the long battle which has gone on for centuries between employers and employees, the employees lighting to get the full fruits of their labours and the employers fighting to retain some power over the worker above and in addition to that which is imposed by the ordinary civil law of contract.
Listening to some of the speakers on the Government side tonight, I am reminded very forcibly of what was said of the Habsburg dynasty in the old AustroHungarian empire. Government speakers collectively, with few notable exceptions, were like the Habsburgs of old. They have learnt nothing; they have forgotten nothing, and they have certainly forgiven nothing. We have heard the usual smears about Communists and left wing extremists. I might counter that by saying there are plenty of union baiters and plenty of union haters on the Government benches here tonight, and they are a disgrace to their party and to the country.
Australians can be led, but they cannot be driven, and anything in the nature of coercion is contrary to the inborn idea that British and Australian minds have of fair and democratic treatment of the underdog.
Strikes are nothing new. If we delve back into history, we find that a couple of days before the battle of Agincourt, a celebrated battle in British history in 1415, the yeomen archers went on strike. They wanted their wages to be increased from 4d. to 6d. a day, they wanted the price of beer reduced, and they wanted the beer made stronger. They won their strike and went in and won the battle. The workers’ battle still goes on, and it will go on indefinitely until social and economic justice prevails. There are three approaches to this problem. One is the historic and legal approach. The second is the approach from the workers’ point of view and the third is local and concerns my constituents in particular. I will deal with them in that order.
The honorable member for Parramatta (Mr. Bowen), who is, incidentally, a very learned gentleman, gave a notable exposition of the law as it stands today, but he also made a notable expose of the obvious Government limitations of thinking when the fully trained legal mind is applied to the problems of human relations. In arbitration courts we are dealing with human relations and not with the enforcement of contractual rights. We are dealing with the emotions of ordinary people, men who have to work for their living, men who know that unless they can get a job they will starve. They live from week to week. The only commodity that they have for sale is their labour, and that is the only commodity the sale of which is universally controlled in this nation today.
I listened with nothing short of apprehension to the honorable member for Warringah (Mr. Cockle), because his proclivities are well known. I thought that time might have mellowed some of his more obvious absurdities and some of his more obvious hatreds of the workers, particularly those in the maritime unions. I have the honour to represent some 700 waterside workers at Port Kembla, and I know of no more loyal group of Australians. It was to their credit in 1939 that they pointed out the menace of Japan and were responsible for having an embargo placed on the export of pig iron. These are the men who have been traduced, calumniated and vilified in this chamber today. Shame on the men who have done this to them.
– They also went on strike during the war.
– We will deal with the honorable member in a moment. His union breaking and strike breaking proclivities are well known and notorious. No-one should know better than the honorable member for Warringah the conditions under which men work at Port Kembla harbour. I invite him to come down there. The invitation is an open one, but I suggest he come during the winter and see men’s eyes being cut out by the iron ore dust blown by four or five months of prevailing westerly winds. Let him come and see how men are forced to cease work because of sulphuric acid fumes and sulphur dioxide fumes from the local metal refineries. Let him go to the holds of a sulphur ship from Galveston or from Sicily and come near to the point of asphyxiation, while firemen stand by with hoses at the ready in case of spontaneous combustion. Let him come to the holds of ships where steel is being loaded and a sling slips, and let him dive for his life while a bank of rails or some rolled steel joists slip and slide across the steel floor of the ship. Let him work in some of the coffin ships, the Liberty ships bought at scrap prices and operated from ports of convenience. Let him try to work the rotten gear, the rotten shackles and pulley blocks which are nothing less than a hazard to human life. It is disgraceful to hear honest working men attacked in this chamber and 1 resent and refute these accusations to the limit of my ability.
It has been said that this Government is led by some of the finest minds of the 19th century. The present so-called system of conciliation and arbitration is almost a relic of feudalism. In fuedal days there was no serf without a master, and today we seek to make the so-called arbitration court the master of the working man. Let me dwell for a moment on the meaning of the word “ arbitration “. Arbitration refers to a situation in which two parties to a contract readily and voluntarily agree to refer to an umpire mutually chosen to settle their differences. Is there arbitration today? Every man is a chattel, a servant of the court. He is tied to it on the basis of the registration of his union. If there is to be arbitration, let it be arbitration. Today there is compulsion and coercion and nothing else. Let every honorable member opposite who is honest admit that neither in the United Kingdom nor even in the United States of America is there any counterpart of our system of industrial arbitration legislation. The people of those countries are English speaking people, they are people of English legal traditions, people with the same motivation as we have here. Yet they reject with contempt, they spurn the very idea of industrial coercion. And is either of those countries notable for strikes on a greater scale than we have in Australia? The right to strike is a fundamental human right. It is one of the human freedoms to withhold the sale of one’s labour if one cannot get just, fair and reasonable terms.
A lot has been said about the system of arbitration. The honorable member for Parramatta, in what I have already said was a fine exposition of the Conciliation and Arbitration Act from the legal point of view, revealed, by his very ability, the fundamental defects of the system. It is a system of pains and penalties, a system of legislative coercion. A worker knows nothing of a writ of man damus. He knows nothing of the Conciliation and Arbitration Court being a court of record. He is concerned with his right to a fair wage, and he knows that, come what may, under this system he will not get the full fruits of his labour. He must first find a job or starve. Further, he knows full well that he will not get a job in the industrial field unless an employer can make a profit from his wages. His only protection, his only line of action, is through his trade union. He uses the union’s collective industrial strength to secure the best conditions he can in the sale of his labour.
We as a party on this side of the House are based on the trade union movement. We have our memories of the squatter magistrates going around. We have our memories of the excesses of the Master and Servant Act, which, though admittedly an anachronism, is still on the statute book of New South Wales. We have our memory of the squatter magistrates coming to break up shearers’ strike camps. Today in a much more subtle way the worker is being deprived of social and economic justice. He knows that he cannot get certain and complete justice from the arbitration court. I have a great respect for the law and for the judiciary, but 1 believe it is wrong to appoint men trained in the law to act in economic matters. I think it was the late Mr. Justice Cantor who said, when called upon to make an award in the mining industry - he made the award, incidentally, and it was a binding one - that he would not know the mouth of a coal mine if he saw one; nevertheless he had the power to act, and act he did.
There has not been even an attempt by the arbitration court or the conciliation commission - call it what you like - to use the powers inserted in the Conciliation and Arbitration Act by the late and great Ben Chifley, such as the power to get an economic assessor to make an assessment of the real needs of workers and the impact of an award on a particular industry. Where the workers have gone for arbitration we have presented them with a legal cockpit, a place of frustration, a place of legalities, a place of quoted precedents. The typical criticism of the working man is: “ We are being delayed, and the longer we are delayed the more the employer is profiting by the delay. When we do get something it is given tardily and grudgingly and it is unsatisfactory and inadequate.” That is how the average worker is thinking today, and the result is a remarkable increase in the number of agreements for over-award payments which are being arrived at between the more farseeing employer and the unions. The inadequacy of arbitration is a byword amongst the workers today. There is no area in Australia where I can show the defects of arbitration to better advantage than in my own constituency.
Every honorable member, in fairness to the trade union movement, should read an editorial that appeared in a newspaper last year. For the benefit of the union baiters on the other side, I may say that this was written by a very respected writer, the Financial Editor of the “ Sydney Morning Herald “. It was published on the main financial page of the “ Sydney Morning Herald “ on 14th November 1964. It is headed “ The Monastic Demands of B.H.P.”. In the article, the Financial Editor said -
More and more contemporary family budgets depend on the wife earning wages at various stages of the married life.
I am able to interpolate here that some 5,600 women and girls are seeking employment within my constituency. Of these, 4,500 are married women. I have not the slightest objection to any married woman going out to work if she wants to do so, but I most strongly object to married women being forced to go out to work by economic insecurity and their families being deprived of their services at home because the husband is not being paid an adequate wage. The article continued -
Areas in which this is markedly below the average occurrence are under-privileged areas, unless or until employers like B.H.P. come to pay special loadings to married men or all men.
By all historical standards, the idea of B.H.P. doing this is unreal.
One of the unnoticed consequences of B.H.P. ‘s monopolistic position has been its ability to keep the trend of its wage costs remarkably close to the trend of statutory award rates.
I have prepared the accompanying table of B.H.P .’s total Australian work force and of wages and salaries paid from the annual accounts of the last 10 years.
The table shows that wages and salaries per ton of ingot steel in 1955 were £13.6. In 1964 the figure was £13.5 per ton. The article went on -
The remarkable stability of wage costs per ton of steel . . . over this period of rising wages is partly, of course, a function of the economies of expanding scale of output.
But it also owes something to a notable closeness of the growth of average wages paid to B.H.P. employees and the rise in award rates over the period.
B.H.P. has not indulged in paying fancy scarcity premium to attract additional marginal employees . . .
Had there been competitive employers seeking to attract steelworkers, and expanding output to a maximum, it is more likely that the average steelworkers wage would be higher.
This is the rub -
But to keep its big work force disciplined in present conditions of full employment and industrial restiveness, B.H.P. is now beginning to suspend unruly workers for periods of as long as a fortnight.
This is in line with the firm industrial line taken by B.H.P. as far back as the days of Bowes Kelly and continued under Essington Lewis.
If honorable members want a perfect example of the worst consequences of arbitration, they should come to my constituency. There the average base rate paid to the steelworker is £18 a week. I have in my possession letters sent as an inducement to intending migrants in the British Isles offering them £22 a week including bonuses and overtime. The actual wage is £18. The honorable member for KingsfordSmith (Mr. Curtin) made me envious when he referred to people who were actually receiving £23 a week. The hard fact is - I make no reflection on the trade union movement in my district - that the wage scale there is £5 a week less than it ought to be. Because of that deficiency, women within my constituency are being forced to work when they ought to be and would be at home looking after their husbands and children instead of being on the labour market.
At this late hour I do not propose to delay the House unduly, but I repeat that the fight will undoubtedly continue. Tolerance must be tried. It is quite possible to have true arbitration without compulsion and coercion. What we have today is a delusion, a mockery and a sham.
Question put -
That the words proposed to be omitted (Mr. Webb’s amendment) stand part of the question.
The House divided. (Mr. Deputy Speaker-Mr. E. N. Drury.)
Question so resolved in the affirmative.
Original question resolved in the affirmative.
Bill read a second time.
– Mr. Temporary Chairman, I refer to clause 6, which provides -
After section 109 of the Principal Act the following section is inserted - “ 109a. - (1.) The Court shall not commence the hearing of an application for an order under paragraph (b) of sub-section (1.) of the last preceding section to enjoin an organisation or person from committing a breach or nonobservance of an award unless the Court is satisfied -
that a Commissioner or a presidential member has been notified that the breach or non-observance is likely to occur;
the notification was given without delay; or
a Commissioner or a presidential member of the Commission has certified that there was reasonable cause for delay in giving the notification; and
subject to the next succeeding sub-section, that a period of fourteen days, or such longer period as a Commissioner or a presidential member of the Commission has determined, has elapsed since the notification was given. “ (2.) Paragraph (c) of the last preceding subsection does not apply if the applicant satisfies the Court that the breach or non-observance is likely to occur within the next ten days.
I move -
After sub-section (2.) of proposed section 109a, insert the following proposed sub-section - “ (2a.) Where an application is made for an order under paragraph (a) of sub-section (1.) of the last preceding section in relation (o a breach or non-observance of an award and application is made at the same time under paragraph (b) of that sub-section in relation to a breach or nonobservance of that award of the same or of a similar kind, the preceding provisions of this section do not apply.”.
Further examination of the Bill has disclosed that circumstances could arise in which it would not be appropriate that proposed new section 109a operate. If a breach of an award occurs, an action for mandamus under the existing section 109(1.) (a) is the appropriate remedy. However, an action for mandamus cannot lie if at the time of the Commonwealth Industrial Court’s hearing of the matter the breach of the award no longer exists, for example, if, in the case of a strike in breach of a bans clause, the strike has already been terminated. This applies even if there exists a situation in which it may be a matter of common knowledge that it is expected that as soon as the court proceedings have finished there will be a recurrence of the breach or a similar breach, as in the case of what is generally known as a rolling strike. As the clause stands, if an employer had not previously notified the Commonwealth Conciliation and Arbitration Commission in accordance with proposed new section 109a (1.) (a) and (b), he could not obtain an injunction under existing section 109(l.)(b) even though he could satisfy the Court that the breach would recur immediately the hearing was completed. This amendment v i’l overcome such a situation by providing that, where an application is made for a mandamus under section 109(1.) (a) and an injunction under section 109 (I.) (b) simultaneously in respect of a breach or non-observance of an award of the same or similar kind, subsection (1.) of proposed new section 109a shall not apply and the Court shall have power to deal with the application. This, Sir, is completely in accord with the principle, which I enunciated in my second reading speech, that we were not seeking to change the law in relation to a breach that had in fact occurred.
Amendment agreed to.
Bill, as amended, agreed to.
Bill reported with an amendment; report - by leave - adopted.
Bill (on motion by Mr. McMahon) - by leave - read a third time.
The following Bills were returned from the Senate without amendment -
Coal Industry Bill 196S. Aliens Bill 1965.
Debate resumed from 29th April (vide page 1023), on motion by Mr. Snedden -
That the Bill be now read a second time.
.- Mr. Deputy Speaker, no jury would be asked to commence its deliberations at 12 minutes to 11 at night. If its deliberations were still in train, it would be locked up for the night.
– should be. -The honorable member
– Having been fortified by my learned friend, I move -
That the debate be now adjourned.
Question put. The House divided. (Mr. Speaker - Hon. Sir John McLeay.)
Question so resolved in the negative.
In no field of law or practice in Australia, are there greater and more obvious differences between the six States and the ten Territories than in the liability and eligibility for jury service. Mr. Justice Evatt, as he then was, reviewed the liability and eligibility for jury service in criminal and civil matters in the States and the then Territories at the second convention of the Australian Law Council which was held in Adelaide in 1936. I made some reference to the diversity of practices on this subject in the second reading debate on the Judiciary Bill 1960. I have not made such an exhaustive survey on this occasion but I understand the position to be as follows: In South Australia there is a property qualification for jury service. Only electors qualified to vote for the Legislative Council are eligible to serve as jurors. In the other States, electors quali fied for the lower House of the Parliament - the Legislative Assembly or the House of Assembly - are eligible for jury service if they are between the ages of 21 and 65 years.
In the Northern Territory and the Australian Capital Territory and presumably in the overseas Territories which apply the Australian Capital Territory laws juries are empanelled for both criminal and civil cases. Juries are empanelled for criminal cases in Norfolk Island. In about half of our overseas Territories, however, no provision is made for jury trial even in criminal cases. That is mainly of importance, of course, in the Territory of Papua and New Guinea. Since the Commonwealth may take direct responsibility in the Northern Territory and the Australian Capital Territory I shall draw attention to what I believe are objectionable features of the legislation in those Territories. I quote, first, from the Northern Territory ordinance as amended up to 1960. As the Departments concerned are closed for the night, I have not had an opportunity to secure any amendments which have been passed since then. As at 1960, persons who were qualified to serve as jurors were confined to male adult persons of European race or extraction. An additional class, described in the margin of the ordinance as “Certain half-caste returned soldiers”, is eligible. No longer should we have in the statutes of the Northern Territory a provision which excludes from jury service Aborigines and Chinese, both of whom are to be found in the Territory in great numbers, or persons of other races and extraction, particularly as they must live under the laws of that Territory of which otherwise we are trying to make them full citizens.
I come now to the position in the Australian Capital Territory. For the same reason that I mentioned earlier, I refer to the relevant ordinance as amended up to 1963. Here male adult persons of European race or extraction alone qualify for jury service. This automatically excludes Aborigines at Jervis Bay and any other nonEuropean citizens of the Territory. In both the Northern Territory and the Australian Capital Territory women are excluded from jury service. The Commonwealth is not doing the right thing in excluding women and citizens of other than European racial extraction in jurisdictions for which it alone has responsibility. 1 refer now to other features of the legislation, pursuant to which Commonwealth public servants will be called upon to serve on juries. In all the States public servants may be called upon to serve in criminal cases. In civil cases, however, their liability for service differs very greatly. In New South Wales and in Queensland it is the normal practice for civil cases to be decided by a jury, except in equity. In Victoria I believe that the plaintiff - the AttorneyGeneral would be much more familiar with this than I am - has a right to a jury trial in the same conditions as now apply in England - that is in cases of fraud, defamation, malicious prosecution, false imprisonment, seduction and breach of promise of marriage. He can also ask for a jury in other cases but the matter is left to the discretion of the judge who rarely exercises it in favour of granting a jury. In Victoria again the defendant has a right to demand a jury trial in such civil cases except in equity.
In Western Australia I understand that the position is the same as it is in England. In South Australia there are no civil juries unless the commission of an indictable offence is incidentally in issue. In Tasmania there is an express prohibition on jury trial in running down cases in highway accident cases. In Victoria and Western Australia there is no express prohibition on juries in running down cases but judges practically never exercise their discretion to order them.
The prevalence of civil juries thus differs very much between the different Australian States. The vast majority of cases now arise from negligence in highway and industrial accidents, and only in New South Wales and Queensland are those cases ordinarily tried by juries. I believe that in the Australian Capital Territory and the Northern Territory also juries are as difficult to come by as they are in England or in Victoria. Therefore, Sir, the liability of public servants to serve in juries in civil cases will vary greatly according to where they are posted.
I referred earlier to the remarks of Mr. Justice Evatt in 1936. I notice that in discussing those remarks afterwards, the then Commonwealth Attorney-General, now the Prime Minister (Sir Robert Menzies), acknowledged the necessity for juries in criminal cases, but deplored the possibility of them in civil cases. To show his attitude, in full flower, towards civil cases I shall quote two passages from his remarks. He said -
I want to say as one who has practised a good deal before civil juries that the civil jury system ought to be abolished. I make no qualifications on that either. I regard the system as incompetent, unessential and corrupt.
The Attorney-General, as he then was, concluded -
There is one thing more important than expedition and elimination of appeals, and that is doing justice between the parties, and the sooner we get back to the ideals that justice should be administered according to law and not according to clap trap the better it will be for all.
Many people inside this House, in other legislatures of this country and in the law in the different States and Territories would still see some virtue in civil juries, even in negligence cases. The virtue of juries in civil cases, as in criminal cases, is that juries are more representative of the public - of litigants - than are judges. They are less remote, particularly in small jurisdictions where a litigant is likely to come before the same judge, or before a limited range of judges, as occurs on circuit or in the Territories. In these cases there is very great virtue in trial by jury. It makes litigation less predictable and more exciting.
This Bill is of limited scope. Nevertheless, I think that the opportunity should not pass without expressing the wish that the Commonwealth should exercise its initiative to secure a more uniform practice in the conduct of criminal and civil trials before juries in the States and the Territories. It is anomalous, archaic and anarchic to have the laws of this Parliament administered in different ways as now occurs in the six States and the 10 Territories. Our laws are administered by juries in some States and not in others, by juries in some Territories and not in others, yet the laws are the same.
In many matters this Parliament could lay down procedures for jury trial in criminal and civil cases. They are civil matters in which the Commonwealth is one litigant and a private citizen or a State is the other litigant, matters in which two States are litigants, matters in which residents of different States are litigants, matters in which a State and a resident of another State are litigants, or matters which arise under any laws made by this Parliament or in which claims are made under the laws of different States. In all these cases this Parliament could lay down laws on the qualifications in residence, age, sex or education for the jury. This would b; a step towards bringing a proper uniformity into the administration of law throughout Australia. In other matters concerning jury service it would be beyond the competence in general of the Commonwealth to pass laws. It is not, in genera], possible for the Commonwealth Parliament to determine the conditions in which juries deliberate or are accommodated. It is possible for us to do it in the Territories. It is possible for us to do it also in the larger centres where we may expect that Federal courts will be sitting, because I still have hopes that the Attorney-General will press on with the proposals for Commonwealth superior courts in which juries will determine issues. In these matters the Commonwealth can set a proper standard of accommodation.
Further, the Commonwealth could probably set improved standards of remuneration. I have been asked, but I have not bothered to find out, whether public servants will be able, under this legislation, to take their juror’s fees or whether this would be regarded as accepting additional employment and, therefore, banned under the Public Service Act. The fees which jurors are paid are, in fact, no real recompense for their loss of time from their occupations.
Again, there is room for streamlining the conditions in which jurors are called up. It cannot be said that jurors in general are impressed with the efficiency of the law when they see the very great time that is involved in being called up, selected and paid and when they see the conditions in which they are accommodated and have to deliberate.
All these matters were reported on in the United Kingdom within the last month by a departmental committee on jury service under the chairmanship of Lord Morris and including Lord Gardiner, the new Lord
Chancellor. The committee was appointed two years ago by the then Home Secretary, Sir Henry Brooke, and it reported to the new British Government within the last month. Its report deals with most of the matters about which juries in this country are concerned. I hope that the AttorneyGeneral and his Department, in carrying out the Commonwealth’s direct responsibilities as regards juries in the Territories and under Commonwealth Laws, will avail themselves of the research and recommendations that the committee made. I hope also that the Attorney-General, in the committee of Commonwealth and State Attorneys-General, will continue his efforts to see that publice servants of the States carry out the duties of citizens as regards jury service, just as he has, by this Bill, done his best to ensure that Commonwealth public servants carry out theirs.
.- I want to take this opportunity to make a few comments on the Jury Exemption Bill which is now before the House. We learn from the second reading speech delivered by the Attorney-General (Mr. Snedden) that the Bill, like the Act it is designed to replace, is concerned with the exemption of persons from jury service in the States and in Commonwealth Territories. I endorse the remarks of the Deputy Leader of the Opposition (Mr. Whitlam) in which he referred to the absence of a provision for women to serve on juries in the Australian Capital Territory. The Attorney-General’s speech is a reflection, I think, on the Government because it did not introduce this legislation a considerable time ago. I still do not think that the Bill goes far enough for a capital city that should be giving leadership to the States and Territories of the Commonwealth in modernising legislation.
The former Attorney-General, who is now Chief Justice of the High Court of Australia, was commended throughout Australia and many overseas countries for modernising the marriage and divorce laws of the Commonwealth per medium of the legislation that was passed during his regime as Attorney-General. I endorse also the references made by the Deputy Leader of the Opposition to the comments of a former Leader of the Opposition, Dr. Evatt, on juries in civil actions. Many people in different walks of life feel that die time is long overdue for dispensing with juries in such cases. My mind goes back a few years to an occasion when a former Government of New South Wales moved to set up a committee to deal with damages in civil actions. I understand that strong opposition, which caused the Government to drop its plans in that field, came from what I would describe - with respect to my Deputy Leader and other legal men in this Parliament - as one of the most powerful trade unions in this country, the Bar Council. In the Parliament this evening, during the debate on the Conciliation and Arbitration Bill, we heard Government supporters endorse the penal provisions of the Act, although justifiable criticism of those provisions was made by members on this side of the House. Presumably the Bar Council objected to dispensing with juries in civil actions for the same reason as a trade union takes industrial action - to protect the incomes of its members. Dispensing with juries would lessen the incomes of barristers in civil actions.
From the paths that I walk I know that the people of the Commonwealth are more law conscious than ever they were before. If a person happens to suffer a sprain or a twist of a limb and he seeks legal advice, the legal adviser usually advises him to commence a District Court action for damages to be determined by a jury. That is why there is such a great lag in the disposal of these cases. I hope that the day is not far distant when serious consideration will be given to dispensing with juries in civil actions. I am reminded of the remarks of a very respected jurist, Judge Holt, who at 70 years of age has just retired from the District Court in Sydney. On his departure from the bench only a few days ago he commented that the time was long overdue for dispensing with juries in civil actions.
I think also that serious consideration should be given by the Attorney-General to amending the legislation so that in criminal trials - in which I would never advocate the abolition of juries - when 10 jurors are agreed on a verdict, whether it be guilty or not guilty, with two jurors dissenting, the verdict of the 10 will be accepted- I am almost positive that in New Zealand that is the position in criminal cases. 1 am also fairly sure that in South Australia a similar law exists in relation to trial by jury in criminal cases. In support of my submission, I refer to a recent case which comes to mind. There are many similar cases. They are cropping up all the time. Some years ago in Sydney there was an incorrigible sex pervert who was named “ The Whip “. He was not a Whip in Parliament, of course. The newspapers gave quite a bit of publicity to this man’s apparently depraved mind and his activities on the north shore of the metropolis of Sydney.
– Hot in Centennial Park?
– No. I think he might have operated in the Liberal area of North Sydney. The workers from around the Moore Park area are so tired when they get home at night–
-Order! The honorable member should relate his remarks to the Bill.
– All right, Mr. Speaker; but 1 think this applies to legislation affecting juries, i hope that you will be tolerant with mc for a few more minutes. The fact is that in the case to which I am referring the trial lasted for nine days and the jury disagreed. 1 know that it is not correct to try to find out why a jury disagreed; but 1 was informed front a very reliable source that there was one dissentient on the jury. He was reported as having said that he would not convict any person of anything, irrespective of the evidence. I suppose one could refer lo other similar cases, if that were permissible. I believe that that sort of thing strongly supports advocacy of a further amendment of the relevant legislation so that, when 10 members of a jury say “Guilty” and two say “Not guilty”, a verdict of “ Guilty “ can be accepted by the court.
We know that, unfortunately, sectarianism sometimes creeps into the selection of juries. That is pointed out in Clarence Darrow’s book, “ Attorney for the Damned “, and I think it is referred to in a book which I have with me and which I have read several times. It is a very good book, lt is “ Courtroom “ by Quentin Reynolds. I emphasise the need to give women the privilege of serving on juries in the Australian Capital Territory. In this City of Canberra there are many career women who attend the Australian National University and other schools of learning and who, I believe, would make a great contribution to the administration of justice if they were permitted to sit on juries. Under the Juries Ordinance in the Australian Capital Territory, some of the persons exempted from jury service are lecturers, professors, school masters and school teachers who are engaged in full time teaching or in the teaching of organised classes at universities, colleges and schools.
– Why should that be?
– I agree with the honorable member. Why should this be? I believe that persons in those callings - academics as they are sometimes called - could make a great contribution towards the administration of justice by serving on juries. I would like the Attorney-General to tell me, if he can, why these people have been partially exempted.
– To which class of persons is the honorable member referring?
– I am referring to people exempted from jury service under the Australian Capital Territory Juries Ordinance. In addition to those whom I have already mentioned the ordinance exempts from jury service ‘ managing directors, managers, cashiers and tellers of banks, members of the fire brigade and officers of the Commonwealth Scientific and Industrial Research Organisation.
-‘ Who is left?
– Who indeed? It is imperative that people in those stations in life should serve on juries. Usually, because of their callings, the people who are compelled to serve on juries are most reluctant to perform that duty. 1 have frequently spoken with businessmen who fear that their businesses may be jeopardised because of the verdict returned by a jury on which they have served. Public servants would not have anything to fear from jury service. They need have no apprehension about their business being affected. They need have no fear that the most delicate nerve in the human system - the hip pocket nerve - to which the honorable member for Lalor (Mr. Pollard) has on other occasions referred, would be affected by their serving on juries and returning verdicts. Public servants and other people who are now exempted from jury service would be better jurors than are businessmen and other people in private occupations who usually dominate juries not only in the Australian Capital Territory but also in the States.
In support of my remarks I wish to point out for the information of honorable members that in some New South Wales country towns juries are notorious for returning in criminal trials verdicts that are in conflict with the overwhelming weight of evidence. Within the last seven or eight years the New South Wales Department of Justice examined the verdicts given in criminal trials held in Forbes over a period of 22 years or more. It was found that during that time only two convictions had been obtained, and they were on lesser counts than the indictments presented by the Crown. This serves to illustrate that the people usually chosen for jury service - business people and professional people - are reluctant to return verdicts in accordance with the evidence. Where could we get two better jurors - although I take it they would be exempt from service - than the Clerk of the House, Mr. Turner, and his assistant? They would certainly be qualified to sit on a jury, but I should imagine that they would be debarred from such service under this legislation. I venture to suggest that the Clerk and his assistant would enjoy the relaxation of being away from this chamber sometimes and would enjoy listening to evidence placed before a criminal court.
– We would all get life.
– I do not think we would. I think they would dispense justice properly. Another matter on which I want to place emphasis - and I think this would apply to most States - is the miserly fee paid to jurors. This was touched on by the Deputy Leader of the Opposition. The AttorneyGeneral can correct me if I am wrong but I believe that the fee is £3.10s. or £3.15s. a day. No juror can get vitally interested in the proceedings before a court while he is conscious that by his presence in the court he is suffering a considerable monetary loss, particularly if he is on wages, is paying off a home and is maintaining a family. It is difficult to win his attention and for him to listen diligently to the evidence being submitted when he knows he is suffering a loss of £2 or £3 a day. This, I think, strongly suggests that the fee for serving on a jury should be increased to a minimum of at least £5 a day.
Professional witnesses receive greater remuneration. Doctors are highly paid; indeed, according to the Australian Medical Association journal, two-thirds of Australian doctors earn not less than £7,000 a year. If a doctor attends court he receives a special fee in New South Wales. This probably applies in the Australian Capital Territory, too. In addition he receives a fee for giving professional evidence. My experience is that a doctor gets paid about £7 to £10 for attending court for maybe one or two hours to give evidence. This happened in cases in which I was interested.
I do not think that this legislation goes as far as it should. Women should be given the right to serve on juries, as is to be the position in South Australia and as has been the practice in New South Wales. I believe that in New South Wales a woman can write to the court stating that she wants her name included on the jury list, and then she can become eligible for jury service. I hope that my suggestions receive consideration at a later stage and that the Jury Act is brought more up to date.
– in reply - I believe that several matters which have been referred to should be set right. The Deputy Leader of the Opposition (Mr. Whitlam) did not have the opportunity to look at later copies of the relevant ordinance for the Northern Territory and I am sure he will be glad to know that there was an amendment later than that at which he looked. It provides, in relation to juries in the Northern Territory, that there are no special classes of people who are eligible to serve on juries. The Northern Territory in its ordinance has adopted the New South Wales system under which women can serve on juries. Women are eligible to serve on juries in the Northern Territory at the present time.
As far as the Australian Capital Territory is concerned, I have told some women’s organisations - I do not test my memory as to which organisations they were, but I have a clear recollection of telling them - that we propose to introduce an ordinance in relation to women serving on juries and that we will adopt the New South Wales pattern of women opting to serve.
– Can the honorable gentleman tell me whether the provision for the exclusion of persons who are not of European race or extraction has been removed in the Northern Territory and in the Australian Capital Territory?
– It has not as yet been removed in the Australian Capital Territory.
– But it has been removed in the Northern Territory?
– That is my recollection. 1 will be happy to look at the ordinance to check my recollection, but I feel quite confident in saying that that is so. There is no special class of persons eligible for jury service. I shall look at the ordinance, and no doubt the honorable gentleman will look at it himself. This is about to be done in the Australian Capital Territory. I ask the honorable member not to hold me to a date, but the ordinance is in the course of being drafted.
The other point that the Deputy Leader of the Opposition raised was whether or not a Commonwealth public servant who is called for service as a juror is able to keep his fees. My recollection is that the Public Service Act provides for this. Under the Regulations a person who is called for jury service shall receive full pay, but any fees he receives shall be paid back into the Treasury. He does not suffer although he does not make a profit.
– He would be paid more as a public servant than as a juror.
– That is correct, but we are anxious to see that he does not suffer. The honorable member for Hunter (Mr. James) - unfortunately, I do not see him in the House to receive this reply, but no doubt he will hear of it - asked whether the Northern Territory has already adopted the provision for majority decision, which he was so anxiously pleading to the Parliament. There is provision for majority decision in the Northern Territory. My recollection is that it is a majority of 10 to 2.
– I won the race.
– But the honorable member did not nominate for the race until it was over. He also raised a number of matters about exemptions from jury service in the ordinance in the Australian Capital Territory. I think it is proper for me to say, as I have already indicated, that the ordinance is under review and that these categories of exemption from jury service ;n the Northern Territory are also under review. Quite clearly, many of them will be greatly restricted and no doubt some of them will be completely removed. The honorable member for Hunter said that the Commonwealth should give to women the right to serve on juries. I am not quite sure what he meant by that statement; whether he meant that the Commonwealth should give to women the right to serve on juries in the Commonwealth Territories.
– In the Commonwealth Territories.
– The honorable gentleman may or may not have heard my reply to the Deputy Leader of the Opposition to the effect that the Northern Territory already has provision for women to offer for jury service, as is the case in New South Wales. In the relatively near future the Government intends to introduce an ordinance in the Australian Capital Territory, which will adopt the New South Wales system of permitting women to opt to serve on juries.
– I have won again.
– But again the honorable gentleman did not nominate for the race until it was over.
Question resolved in the affirmative.
Bill read a second time.
Leave granted for third reading to be moved forthwith.
Bill (on motion by Mr. Snedden) read a third time.
House adjourned at 11.45 p.m.
The following answers to questions upon notice were circulated -
t asked the Acting Minister for External Affairs, upon notice -
– The answers to the honorable member’s questions are as follows -
Control of Liquor Sales in Northern Territory. (Question No. 972.)
y asked the Minister for Territories, upon notice -
– The answers to the honorable member’s questions are as follows -
Publican’s Licence: Licensee may sell or supply liquor between 10 a.m. and 10 p.m. except on any Sunday, Good Friday or Christmas Day. There is, however, no restriction on the sale or supply of liquor to an excepted person being the licensee of the premises, a member of his family or staff, a bona fide lodger of the premises, a bona fide traveller or the guest of the licensee or of a bona fide lodger of the premises.
Providing the licensed premises are not situated 65 miles or less from the Darwin or Alice Springs Post Office, the sale or supply of liquor for consumption on those premises is permitted on any Sunday not being a Christmas Day between 1 1.30 a.m. and 12.30 p.m. or 4 p.m. and 6 p.m.
Private Hotel Licence: Licensee may sell and dispose of any liquor in any quantity between the hours of 10 a.m. and 10 p.m. on any day to lodgers and boarders of the hotel for consumption on the premises, or to persons taking a meal at the hotel, for consumption during the meal.
Store Keeper’s Licence: Licensee may sell and dispose of liquor in bottles on specified premises for consumption off those premises, between the hours of 10 a.m. and 10 p.m. except on any Sunday, Good Friday or Christmas Day.
Wine Licence: Licensee may sell or supply wine, cider, mead or perry on licensed premises for consumption on or off the premises between the hours of 10 a.m. and 10 p.m. except on any Sunday, Good Friday or Christmas Day.
Registration of a Club: A registered club may supply liquor on the club premises to members or their guests on any week day that is not a Good Friday or a Christmas Day between the hours of 10 a.m. and 11 p.m., providing that after 10 p.m. on any day the bar-room of the club is closed to all persons except club stewards and the “ licensee “, and liquor is served in some other part of the club premises. A club may sell liquor for consumption off club premises provided that the quantity of liquor sold for consumption off the premises to any one member in any one day is limited to two gallons in the case of beer, ale, stout, &c, or 54 fluid ounces of any other liquor. Providing the registered club is not situated 65 miles or less from the Darwin or Alice Springs Post Office, the sale or supply of liquor for consumption on the club premises is permitted on any Sunday not being Christmas Day between 11.30 a.m. and 12.30 p.m. or 4 p.m. and 6 p.m.
Distiller’s Storekeeper’s Licence: Licensee may sell or supply bulk quantities of liquor for consumption off the licensed premises between the hours of 10 a.m. and 10 p.m. except on any Sunday. Good Friday or Christmas Day.
Railway Licence: Licensee may supply liquor to bonafide travellers in refreshment rooms at times specified in the licence- each time to commence not more than half an hour before the arrival of a passenger train and to continue for not more than half an hour after departure of that train.
Airport Licence: Licensee may sell or dispose of liquor on the licensed premises to a person who has arrived or intends to depart on an aircraft carrying passengers or to a person in such person’s company or to a person bona fide intending to meet such a person, during the period from half an hour before arrival to half an hour after the departure of a passenger aircraft or, if liquor is consumed with a meal during the period from one hour before and one hour after the departure of an aircraft.
Restaurant Licence: Lecensee may sell, supply or dispose of liquor in an approved dining room, as part of a meal, upon any Sunday, Good Friday or Christmas Day between the hours of 12 noon and 2 p.m. or between 6 p.m. and 10 p.m.; or upon any other day between 10 a.m. and 10 p.m.
Roadside Inn Licence: Licensee may sell liquor at any time on the licensed premises. The Court shall not grunt a licence unless satisfied that premises bona fide provide primarily for accommodation of travellers or that they are situated in an isolated locality which does not justify usual standards for a publican’s licence; licence may only be granted in respect of premises distant not less than15 miles from a hotel or other roadside inn; and not less than 35 miles from the Post Office at Darwin or Alice Springs.
Restaurant Storing Licence: Licensee may receive and store liquor at the request of another person and serve the liquor to that person as part of a meal upon any Sunday, Good Friday or Christmas Day between the hours of 12 noon and 2 p.m. and 6 p.m. and 10 p.m. or upon any other day between the hours of 10 a.m. and 6 p.m.
Special Licence: May be granted to a person, for a period not exceeding three months, who is applying for a renewal of his licence at the annual or special sittings of the Licensing Court, when the court is adjourned and the application is not disposed of on or before the fourteenth day after the adjournment.
The supply of liquor to members of the defence forces at a canteen or club established, conducted and maintained by the Australian Services Canteens Organisations is exempted from the provisions of the Ordinance
m asked the Acting Minister for External Affairs, upon notice -
– The answers to the honorable member’s questions are as follows -
On 29th January 1965, the Minister for Defence announced in Saigon that the Australian Government would provide -
On 29th April 1965. the Prime Minister announced, in a statement to the House, the Government’s decision to provide additional military aid in the form of an infantry battalion for service in South Vietnam.
The Minister for Defence announced on 29th January 1965, the following further non-military assistance -
The galvanised iron has been shipped. The engineering team of five members and two visiting experts is already established in Saigon, and action is in hand for the printing of the textbooks.
In addition, regular programmes of Colombo Plan aid including student training have proceeded.
s asked the Prime Minister, upon notice -
Do Open Entrance scholarship holders, on the other hand, who fail in their first year have the scholarship restored on successful completion of the repeated first year studies at their own expense?
– The answers to the honorable member’s questions are as follows -
In a course such as Arts where progress is not measured by years and credit is given for individual subjects, this rule is not necessarily applied since a student may fail in one subject and still complete the course in minimum time. As selection is made on merit, any failures would nevertheless reduce a student’s prospects of receiving an award.
s asked the Prime Minister, upon notice -
– The answers to the honorable member’s questions are as follows -
It should be noted that, on the basis of analysis by years of a course, no figures are available for 1960.
Certain categories of applicants are eligible although they may not have passed all previous years at first attempt. Thus, an applicant who completed first year at first attempt and, having failed in second year, retrieved this failure in the year immediately following by full-time study or in the two years followed by part-time study is eligible to compete for a third year scholarship. An applicant who failed in the first year of his course, but retrieved this failure in the year immediately following by full-time study or in the years following by part-time study is eligible to compete for a Fourth Year award.
Transport Costs in Northern Australia.
– On 1st April 1965, the honorable member for Stirling (Mr. Webb) asked me without notice when the Report of the Committee of Investigation into Transportation Costs in Northern Aus tralia might be expected. As promised I took this matter up with the Chairman of the Committee and have been informed that the Committee believes its report will be presented by my colleague, the Minister for National Development, before the end of August.
Cite as: Australia, House of Representatives, Debates, 11 May 1965, viewed 22 October 2017, <http://historichansard.net/hofreps/1965/19650511_reps_25_hor46/>.