Industrial Relations Bill

Consideration resumed from an earlier hour.

Part agreed to.

Part 9

Division 1

The Hon. J. W. SHAW [5.9]: I move:

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Pages 88-93. Omit Part 9 of Chapter 3 (clauses 256-274).

This amendment seeks to omit the entire provisions concerning secondary boycotts and obviously raises a matter of significant principle for the Committee. The bill as drafted seeks to incorporate into the laws of New South Wales the provisions of sections 45D and 45E of the Trade Practices Act 1974. It seeks to do so by an interesting drafting method to which I do not take objection on any point of principle; but it is worthy of attention. The method used by the draftsmen of the bill is to, in effect, incorporate the Commonwealth provisions, in accordance with clause 258, by defining secondary and other boycott provisions as being the provisions of sections 45D and 45E of the Trade Practices Act 1974 and then by modifying the provisions in particular respects as contained in subclause (2) of clause 258. The Commonwealth provisions are modified in two ways. First, it is not necessary that the person mentioned in the provision be a corporation. In other words, State law is used to go beyond the corporations power that would constrain the Commonwealth Parliament. Second, it is said that it is not necessary that the trade or commerce mentioned in the provision should be interstate or overseas trade or commerce. Subclause (4) of clause 258 provides:

(4) All the provisions of section 45D and 45E that were enacted by the Parliament of the Commonwealth - . . . are taken to be validly enacted for the purposes of this section even though any such provision has been or may be declared invalid.

Subclause (5) provides:

(5) The secondary and other boycott provisions continue to have effect for the purposes of this section despite any repeal of all or any of those provisions by such a Commonwealth Act.

In effect this bill proposes to pick up and apply the provisions of the Trade Practices Act with regard to secondary boycotts - and I use that term loosely for reasons I shall explain later. The draftsmen of the bill adopted the useful and creative mechanism of noting at the end of the bill, at pages 328, 329 and 330, the Commonwealth provisions. By that device the Federal provisions are given effect to, although the draftsmen were careful to keep the provisions in force or effect notwithstanding any repeal of those provisions at the Federal level. The Opposition has a number of fundamental objections to this part of the bill concerning secondary boycotts and other boycotts. The first objection is that the drafting of the provisions of the Trade Practices Act which are incorporated into this bill go well beyond any notion of a black ban or secondary boycott as conventionally understood. The provisions of the Federal law outlaw virtually all industrial action. Therefore, they go well beyond what is a fair and reasonable delineation of unlawful industrial conduct. May I give one particular example: with regard to the Federal provisions of the Trade Practices Act some deeming prescriptions have been declared unlawful and invalid. They are those contained in subsection (5) of section 45D. That subsection, which is contained in the note to this bill, provides:


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(5) If two or more persons (in this sub-section referred to as the "participants") each of whom is a member or officer of the same organisation of employees (being an organisation that exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests of its members in relation to their employment) engage in conduct in concert with one another, whether or not the conduct is also engaged in concert with other persons, the organisation shall be deemed for the purposes of this Act to engage in that conduct in concert with the participants, and so to engage in that conduct for the purpose or purposes for which that conduct is engaged in by the participants, unless the organisation establishes that it took all reasonable steps to prevent the participants from engaging in that conduct.

That deeming provision has been declared invalid by the High Court in the Fontana Films case. The High Court found that that provision just could not be sustained legally. This Government, however, seeks to incorporate that invalid Commonwealth provision into State law by saying, in effect, that it matters not that a Federal provision has been declared invalid; it will be incorporated nevertheless. That provision appears in subclause (4) of clause 258. State law will pick up Federal provisions that have been or may be declared invalid. The Committee should hesitate before accepting invalid Federal enactments. If the High Court has seen fit in the Fontana Films case to declare this aspect of section 45D of the Trade Practices Act legally ineffectual, why should it be embraced in New South Wales law? It will create an inconsistency between State provisions and the Federal enactment, and that is unsatisfactory and legally messy. That is one specific and tangible criticism of the scheme contained in this bill.

I take a step backwards and make a more fundamental objection in point of principle to secondary boycott provisions of this type. I accept that there may be a need for the protection of innocent parties in industrial disputes and that within the framework of the conciliation and arbitration system there ought to be a mechanism for orders to be made to protect innocent parties. However, as I have said, provisions that replicate the Federal provisions go well beyond any such protection of that kind and well beyond the protection of parties involved in secondary boycotts or black bans. There is a live debate as to whether provisions such as section 45D of the Trade Practices Act are appropriate and ought to be within the concept of trade practices legislation. I draw the attention of honourable members to an article written by J. P. Nieuwenhuysen in the early days of the enactment of section 45D of the Trade Practices Act. Nieuwenhuysen, a reader in economics at the University of Melbourne, wrote an article entitled "Trade Practices Law Changes and the Institutions of Australian Economic Policy", which was published in the fourth quarter edition of the 1977 Australian Economic Review. In that article he stated:

Section 45D is clearly one of the most troublesome and ill judged sections of the amended Act, and carried important implications for industrial relations and economic policy. It adds a whole new dimension to the panoply of powers available to the different parties in industrial disputation. It will mean that the Trade Practices Commission will be dragged into a completely new field. Sometimes, as mentioned before, trade practices law is regarded as a quid pro quo for wage restraint. But with section 45D the 1977 Trade Practices Act has become a new avenue for intervention in the rights to which

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trade unions have regarded themselves as accustomed. The employment of competition policy law in this extension must be roundly condemned. It will, in this author's view, do only harm to the reputation of the trade practices law (and indeed to the law in the industrial relations and economic "balance of power"). As Professor R. Baxt has said, "these provisions (section 45D) apart from possibly extending the section to already chartered areas of industrial torts (such as conspiracy including breach of contract, etc) clearly destroy the protection given to unions in ( . . . certain recognised . . . ) situations. I oppose the introduction of legislative change in an Act such as the Trade Practices Amendment Act, if these changes are aimed at affecting the balance between trade unions on the one hand and employers on the other without a thorough examination of the whole area of the law concerned.

Another and quite separate difficulty that arises with these provisions is their clear potential for being invalid. I have in mind section 164 of the Industrial Relations Act 1988, which states:

164. An action under a law of the State or Territory does not lie against a trade union or an officer, member or employee of a trade union in relation to boycott conduct of the trade union or the officer, member or employee acting in that capacity.

The Solicitor-General has given advice to the Government to the effect that the Federal provision may be invalid. However, no one can be dogmatic about that. If section 164 of the Commonwealth law is valid then by virtue of section 109 of the Constitution these particular provisions are inconsistent, and therefore invalid, with the Federal law. That would not apply if the Federal law were repealed, but until or unless the Federal law is repealed it is clear that the first action taken under this State law, if the bill is passed by this Chamber, will go to the High Court. That is obvious. Any employer seeking to invoke these secondary boycott provisions will invite litigation of a constitutional kind directly raising the question whether the State law is valid or invalid. The State Parliament, by enacting this legislation, will be inviting major constitutional litigation that is in effect quite unnecessary.

This proposed law is unnecessary also because State trade unions are encompassed within the Federal law. The Leon Laidely case under section 45D of the Trade Practices Act 1974 showed that a State trade union - in that case the Transport Workers Union, New South Wales branch - is encompassed by the Federal law. Why, therefore, should this Parliament repeat the Federal law and thereby invite complexity and legal debate? The answers of the Government to that are twofold. First, it is said that the Federal law does not deal with non-corporations. I would suggest that that involves a minute proportion of potential secondary boycott disputes. Second, it is said by the Government that the Federal Parliament might repeal these laws. Our answer to that would be that if and when the Federal Parliament repeals sections 45D and 45E of the Trade Practices Act State Parliament might consider the matter. But until or unless Federal Parliament repeals its present laws this proposed enactment will only achieve a warm inner glow, a feeling that an ideological obsession has been satisfied, and great legal complexity without any practical advantage. The community makes no call on State Parliament to replicate these laws because sensible employers know they have recourse in virtually all
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courses to the Trade Practices Act 1974. Sensible employers know that all they would be getting themselves in for if they were to invoke a State law would be vast and expensive legal debate.

Both in point of principle and practicality the idea of incorporating in State law these secondary boycott provisions is a silly notion. I emphasise that the Committee is not dealing simply with secondary boycott laws, though I use that shorthand terminology. We are dealing with laws which touch upon virtually all industrial action. We are dealing with laws that have been criticised by the International Labour Organisation as being antithetical to the rights of organised labour to organise and take collective action. Where a responsible agency of the United Nations organisation has criticised Australian Federal law as being contrary to international conventions which were entered into by Australia in 1973, it is proper for the State Parliament to consider deliberately and carefully whether it should pass laws which also contravene international law.

The Hon. Dr MEREDITH BURGMANN [5.25]: Australian Labor Party amendment No. 43 seeks to omit the entire provision concerning secondary boycotts, which seeks to replicate Federal provisions of sections 45D and 45E of the Trade Practices Act. Do not forget that the Federal Australian Labor Party won government with a mandate to repeal those odious sections but was simply unable to do so because of lack of control of the Senate. The people of Australia, when asked to vote on, among other things, whether or not sections 45D and 45E were fair, voted against them. We should look closely at what constitutes a secondary boycott under those sections. They relate to many disputes which in no way could be argued to be secondary boycotts. Sections 45D and 45E have ended up being used by employers as weapons in straight wages and conditions struggles. For instance, the plumbers' wages campaign of 1987 involved a straight wages and conditions issue, yet they were served with writs under section 45D. In that campaign individual officials and job delegates were threatened with fines in the millions of dollars. Eventually the union was heavily fined under conspiracy provisions which are replicated in clause 257(2)(e) of the bill. What were their crimes in that straight wages and conditions fight?

The court found that one of their officials involved in the dispute was an appointed official, not an elected official. Many unions have temporary or appointed organisers who are involved in disputes. Little do they know that this makes them liable to prosecution under section 45D. Second, the union sent two officials to the job site meeting, which made them liable under conspiracy provisions replicated in clause 257(2)(e). Third, the meeting which took place involved employees of more than one contractor. I would argue that most job site meetings in the building industry would involve employees of more than one contractor. In such a situation it became illegal under sections 45D and 45E for workers to strike for better wages under the so-called secondary boycotts legislation. No wonder the International Labour Organisation has demanded that sections 45D and 45E be modified to conform to the convention guaranteeing freedom of association and protection of the
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right to organise. Australia signed that convention as long ago as 1973. The Australian Labor Party amendment which seeks to delete this odious provision should be supported.

The Hon. R. S. L. JONES [5.28]: The secondary boycotts provisions in the proposed legislation are an attack on the green movement of New South Wales. I am sure that the 200,000 members and supporters of organisations such as Greenpeace, the Wilderness Society, the Nature Conservation Council, the Northeast Forest Alliance and the multitude of organisations will remember this at the next election. These secondary boycott provisions are an attack on green bans: most activity in secondary boycotts takes place as green bans. The Building Workers Industrial Union will not be able to impose boycotts on the logging of rainforest timber, which it has done several times, which have aided the Panan people in Surawak, who are being killed off essentially because their homeland is being destroyed 24 hours a day under lights. The provisions of the bill will help the genocide of the Panan people. If the proposed legislation had been in place earlier, Jack Mundy would never have been allowed to save The Rocks, which would have been lost, and the Look At Me Now Headland ocean outfall would have gone ahead regardless of the wishes of the people. People opposing that outfall are being arrested under an obscure section of the Crimes Act that has not been previously used. The Government discovered an obscure provision under which people could be arrested and have hefty penalties imposed on them. The residents of Coffs Harbour will not be able to prevent that ocean outfall proceeding.

Chaelundi Forest would be devastated, many native species would have been killed and this Government would be clapping its hands over that. It will be interesting to see how Reverend the Hon. F. J. Nile votes on the amendment. If he votes with us, he will be hoist with his own petard. If he votes with the Government, he will not be able to prevent the mardi gras going ahead, prevent the sale of pornography, stop abortion clinics trading daily or stop many of the things he feels so strongly about. He will be hoist with his own petard and choke himself with his own organisation. If Reverend the Hon. F. J. Nile supports the Government, half his work will be crippled. Reverend the Hon. F. J. Nile should be a Liberal. He is not an Independent in any way or shape. No doubt he will support the Government, as usual, right down the line until the Government is replaced by a more moderate, green and warm government - which this Government clearly is not.

Members of the myriad pro-conservation organisations in New South Wales trying to save what is left of our endangered species, about which this Government has no concern, may well remember this at the next election. There would be enough votes among the pro-conservationists to elect at least one member of the Legislative Council at the next election, and I am sure they will do that. I think that after the next election they will hold the balance of power in the upper House instead of Reverend the Hon. F. J. Nile and his wife. The Government will suffer a backlash from the people of New South Wales. Even 5,000 residents of Coffs
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Harbour, who are not renowned greenies, attended a rally a short time ago protesting about the ocean outfall, and hundreds are being arrested for trying to prevent an illegal activity. It is curious that the Government is taking a harder line against the green movement. When Terry Metherell left the Liberal Party he mentioned how the greens were laughed at and derided in Cabinet meetings.

The Hon. E. P. Pickering: On a point of order. As usual, I have been most tolerant, but it is clear that the matters the honourable member is discussing have nothing to do with the amendment. I ask him to return to the bill.

The Hon. R. S. L. Jones: On the point of order. It is clear that I have struck a nerve with the Minister.

The CHAIRMAN: Order! The honourable member should address himself to the amendment before the Committee.

The Hon. R. S. L. JONES: The truth is coming out in public. The Minister is trying to restrain me and stop debate in his Chamber, but I shall return to the subject-matter, as I am sure you would wish. Suffice it to say that this is a gross attack on the green movement of New South Wales. I am sure that Reverend the Hon. F. J. Nile will support this gross attack on the green movement and even an attack on his own organisation, effectively crippling it from taking action against lawful activities. But no doubt he will support the Government once more.

Reverend the Hon. F. J. NILE [5.33]: I am amazed how the Hon. R. S. L. Jones can speak such absolute nonsense about this clause. It has nothing to do with green bans or the homosexual mardi gras. The heading to clause 259 is "Part limited to boycotts relating to industrial matters". Does the Hon. R. S. L. Jones call a mardi gras an industrial matter? Clause 259 reads:

259. (1)This part applies to a boycott if (and only if) a purpose of the boycott relates:

(a) to a dispute about an industrial matter involving an award or agreement or a proposed award or agreement; or

(b) to a dispute involving an organisation of employees or employers or any member or officer of such an organisation.

The honourable member has been speaking absolute rubbish.

The Hon. JUDITH WALKER [5.34]: Last year the House debated at some length secondary boycotts and related conduct involved in concerted action to hinder supplies to or from another person. The level of debate from the Opposition and the Australian Democrats was of such a nature that the Government should have paid some heed.

[Interruption]

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The Hon. JUDITH WALKER: The Minister for Police and Emergency Services is always singing along. Unfortunately, he does not sing along to the right tune. If he were able to march to a different beat, he might accept or have some understanding of the amendment before the Chair. The difficulty for the Minister for Police and Emergency Services, the Department of Industrial Relations, Employment, Training and Further Education and the Minister for Industrial Relations and Minister for Further Education, Training and Employment is that, with all due respect to all the parties concerned, they have given no thought to the point raised by Hon. J. W. Shaw about the jurisdictional argument of what would occur by the use of sections 45D and 45E of the Trade Practices Act. The Commonwealth Industrial Relations Act does not contain the provisions that the Government is seeking to put in the Industrial Relations Bill. They come from the Trade Practices Act.

The Hon. E. P. Pickering: It will in a few years' time.

The Hon. JUDITH WALKER: That is a matter for the Liberal Party to decide if it can obtain office from the Federal Government. I recall charting before the Chamber the clear and distinct events that occurred around Australia, with the exception of New South Wales, when the unions were charged under sections 45D and 45E of the Trade Practices Act. I am sure that honourable members will recall that the first disputes occurred involving the South East Queensland Electricity Board. That was the first dispute the right-wing, or Liberal-conservative, think tanks decided to overthrow. To the shame of everyone concerned, the superannuation rights of the people involved in the strike were denied them. It took years of fighting back in the courts for those rights to be returned to those men, at great cost to the unions and the people involved, yet this Government has embarked upon including this obnoxious legislation in this bill. It will try to strike down the union movement and the workers by the use of sections 45D and 45E of the Trade Practices Act. The bill already contains penalties if employees strike when they should not. I shall go back to rights-interests if I must.

The Hon. E. P. Pickering: What about a boycott that does not involve a strike?

The Hon. JUDITH WALKER: If they have signed an agreement, they cannot strike. If they proceed to strike, they will be fined heavily, because the amendments that would have struck down the penalties were not supported by Reverend the Hon. F. J. Nile's -

Reverend the Hon. F. J. Nile: Call to Australia.

The Hon. JUDITH WALKER: Call to Australia, thank you. It has had a few name changes and I forget sometimes. I keep calling it Festival of Light, but the light has never entered the honourable member's mind in terms of industrial relations. I do not suppose that honourable members forget that straight after the

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Queensland experience the Northern Territory had its share with the Mudginberri dispute and Western Australia had its share with the Robe River dispute. But sanity prevailed in Western Australia. The Industrial Commission in that State finally cornered the Copeland right think tank theorists that provide this sort of nonsense in bills. That did not succeed to the same extent. They then tried to get something worked up in South Australia on a submarine site. Thank God for the sense of the union movement. They did not bite and fall into the trap. Victoria went down like a nine pin over the Dollar Sweets dispute. Then they tried for the heart of the trade union movement in New South Wales. They tried to get a dispute running and use the vehicle of the Federated Storeman and Packers Union but failed miserably because the secretary of the union did not fall for it, and neither did the Labor Council because it knew what it meant to the workers and the union involved. But still the Government persists in creating two incredible situations. Though sections of the Act are totally opposed and have been ruled out by the High Court of Australia, the Government intends to go back into the jurisdictional argument.

I have nothing against lawyers; I have the greatest respect for them. However, as I have said before, the bill represents a lawyer-led recovery so far as the Government is concerned. It cannot help itself. The theory, the policy and the guidance behind the bill clearly must have been provided by lawyers. The bill certainly could not have been thought up by pragmatists in the field of industrial relations. If it had been drawn up by industrial relations pragmatists, the ridiculous provisions relating to sections 45D and 45E would not have been included in the legislation. Would the Minister like to tell me which other State in Australia has included such provisions in its industrial relations legislation? The answer is simply none. Why is it that the present Premier in his policy speech for the 1988 election never referred to an Industrial Relations Bill with provisions relating to sections 45D and 45E? Had he done so, the coalition parties would never have been elected to office.

The Hon. Dr B. P. V. Pezzutti: He did.

The Hon. JUDITH WALKER: I am glad the Hon. Dr B. P. V. Pezzutti said that because I have the Premier's policy speech on the table if he would care to read it.

The Hon. E. P. Pickering: You cannot put everything in a policy speech.

The Hon. JUDITH WALKER: You cannot put everything in a policy speech? The real facts of the matter are that the Government has been trying to change the entire nature of industrial relations in this State ever since it came to office. Obviously that has been a lifelong ambition of the Minister for Industrial Relations, the Hon. John Fahey. Some time ago I warned the Labor Party that it was all very well for the Hon. John Fahey to be a Catholic and the son of a miner but all along he had an iron fist inside a velvet glove with which he intended to clobber the union movement over the head. The Opposition would not even try to
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amend the provisions of the bill relating to secondary boycotts. We want to remove them entirely because that is the only sensible thing to do.

The Hon. Dr B. P. V. Pezzutti: They are essential.

The Hon. JUDITH WALKER: The Hon. Dr B. P. V. Pezzutti says they are essential. He does not understand whether they should or should not be in the bill.

The Hon. Dr B. P. V. Pezzutti: Absolutely essential.

The Hon. JUDITH WALKER: Absolutely essential! I ask the Minister in the other House or his department to tell me which State-registered union will be subject to these provisions? Will the Government try it on the Nurses Association, the Teachers Federation or the Police Service? They are the big State-registered unions to which these provisions will apply. They will not apply to unions that are registered federally. I challenge the Government to try to apply these provisions to unions that are registered federally and see what happens. The Government will not do so.

[Interruption]

The Hon. JUDITH WALKER: Not yet. A number of small State-registered unions have never been on strike and have never been involved in secondary boycotts. Yet the Government claims it is having such a terrible time controlling State-registered unions such as the Nurses Association, the Public Service Association, New South Wales Police Association and perhaps the Commissioned Officers Association who become involved in secondary boycotts. That is absolutely fascinating. Not only are these provisions not required, they are an absolute insult to the trade union movement and the work force of this State. After what Reverend the Hon. F. J. Nile has said about Mr Greiner being a lame duck Premier, I cannot imagine that he will slavishly follow this bill to the end. He constantly hops to his feet and makes a case for the workers.

The CHAIRMAN: Order! I ask the honourable member to address the amendment before the Committee.

The Hon. JUDITH WALKER: And not Reverend the Hon. F. J. Nile.

The CHAIRMAN: Yes.

The Hon. JUDITH WALKER: I did address my remarks through you, Mr Chairman. Absolutely no point would be served by taking honourable members through a series of examples of secondary boycotts.

The Hon. E. P. Pickering: You have already done that.

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The Hon. JUDITH WALKER: We have, thank you. The Opposition did that in the original debate last year. Suffice it to say that the Labor Party, irrespective of whether it is affiliated with the Labor Council, is still putting the view that to include these provisions in an Industrial Relations Bill in this State is absolute nonsense. The legislation is a reflection of the New Right think tank that has put it together. The New Right think tank probably has about as much going for it as the Chinese who moved against their own people in Tiananmen Square. Workers opposing the New Right think tank will not be in a much worse position than the Chinese students who stood against the tanks in Tiananmen Square. That is the sort of thing the Government is inviting. That is the sort of behaviour the Government is encouraging by the inclusion of these provisions in addition to the other penalties provided for in the bill. I implore honourable members on the crossbenches to support the Opposition amendment. The Government is going backwards at 100 miles an hour. If the Government wants the example of what occurred in England with the Tolpuddle martyrs to be repeated here, these provisions will achieve exactly that.

The Hon. J. W. SHAW [5.46]: In my early remarks to the Committee, I made reference to the fact that the International Labour Organisation had been critical of the provisions of section 45D of the Trade Practices Act.

The Hon. E. P. Pickering: So what?

The Hon. J. W. SHAW: The Minister interjects, "So what?" That is a disparagement of the International Labour Organisation. We heard that also from John Howard.

The Hon. E. P. Pickering: Will the Hon. J. W. Shaw tell me a State or Federal Government that is not in contravention of an International Labour Organisation convention?

The Hon. J. W. SHAW: I hope that most affiliates of the International Labour Organisation are not in contravention of its conventions. The whole idea of an international treaty is that states which have committed themselves -

[Interruption]

The Hon. J. W. SHAW: John Howard has described the International Labour Organisation as the industrial relations club in international session.

The Hon. Dr B. P. V. Pezzutti: Absolutely.

The Hon. J. W. SHAW: That is ridiculous. The International Labour Organisation is a tripartite body consisting of representatives of governments, employers and employees. Australian private sector employers have lodged a challenge to the International Labour Organisation about certain aspects of Federal
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industrial law. It is a respected body and an arm of the United Nations Organisation. It ill behoves conservative politicians to disparage the activities of the International Labour Organisation.

The Hon. Dr B. P. V. Pezzutti: Rubbish! It is a left-wing plot.

The Hon. J. W. SHAW: My purpose in speaking a second time in the debate on this series of clauses is to quote what the committee of experts of the International Labour Organisation said about these provisions of the Federal legislation which this Committee is being urged to incorporate into New South Wales law. I should like to place one paragraph on the record so that the Committee is aware that the provisions it is being asked to put into law in New South Wales have been censured in clear terms by the International Labour Organisation. Having regard to the provisions of convention 87, "Freedom of Association and Protection of the Right to Organise", the committee of experts said in relation to the relevant provision:

The committee remains of the view that section 45D and its associated provisions render unlawful certain forms of industrial action which ought to be permissible. Accordingly it calls upon the Government again to take steps to bring this legislation into full conformity with the requirements of the convention.

It is clear that if the Committee accedes to the wish of the Government and brings these provisions into the law of this State, it will be deliberately flouting the opinion of the committee of experts of the International Labour Organisation and will be inviting a decision from the International Labour Organisation declaring that these provisions are contrary to international law and void. What the International Labour Organisation says emphasises the point I made in my earlier contribution, namely, that these provisions cannot simply be characterised as protecting innocent parties in circumstances of secondary boycotts. They go much further than that and deal with a variety of industrial actions.

The Hon. ELISABETH KIRKBY [5.50]: A few moments ago the Hon. Dr B. P. V. Pezzutti made some fairly derogatory remarks by way of interjection about the International Labour Organisation. I shall try to bring the debate on this clause into more local context. I shall refer to a legal opinion from Mr Andrew Stewart, senior lecturer in industrial relations at the University of Sydney. He is very well versed in industrial law in New South Wales, federally and internationally. He says that this provision is inconsistent with federal legislation.

The Hon. Dr B. P. V. Pezzutti: So what?

The Hon. ELISABETH KIRKBY: We are now debating a very tricky point of law. There is no point in the Hon. Dr B. P. V. Pezzutti saying, "So what?" If we introduce legislation in this State that cuts across existing Federal legislation, there will be a field day for the lawyers. We are dealing with what a State can
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legitimately do when overriding legislation comes from the Federal Government. Members on the Government side of the Chamber may not like that, but they cannot avoid it. It is a fact of life that there is Federal industrial legislation and State industrial legislation. We simply cannot get away from that. Dr Andrew Stewart stated that section 164 of the Federal Industrial Relations Act of 1988 provides that an action may not lie against a trade union or one of its officers or members under a law of a State or Territory in relation to boycott conduct. That is crystal clear. That is a legal opinion. Boycott conduct is defined in clause 4(1) to mean conduct that constitutes or would constitute a contravention of sections 48D or 45E of the Trade Practices Act.


I am perfectly certain that members on the Government side are totally and absolutely in support of sections 48D and 45E of the Trade Practices Act. They are not willing to change them in any way. Therefore, why is the Government trying to tamper with them or to have them legally questioned because of this legislation? The Australian Democrats do not support section 48D and section 45E, but that is not the point. We are not arguing here the philosophy of the Labor Party, the philosophy of the coalition or the philosophy of the Australian Democrats; we are arguing points of law raised by lawyers about the provisions of this bill. We simply have to look at those points of law because we are supposed to be legislators. We are not supposed to be promoting our personal philosophies. We are supposed to be introducing legislation that fits existing law. If we do not do that, we have no function at all. The intention of section 164 of the Federal Industrial Relations Act 1988 was without any question to invalidate State legislation in the field covered by section 48D and section 45E.


It is suggested by Dr Stewart that it could be argued that where conduct is protected by section 45D(3) it cannot amount to conduct that constitutes or would constitute a contravention of the Federal provisions. If that is the case, it would amount to interpreting section 164 to permit State legislation to deal with conduct that would constitute a contravention of section 45D but for the operation of the defences in subsection (3). This is the inconsistency. It sits very uncomfortably. The intention of the Federal legislation clearly is to exclude State laws in this area. If the Government is attempting to legislate in this area, it is entering into a very difficult legal minefield. I can assure the Government that all the big unions in this State will take the Government to the Federal court to fight it and they will have every ability to do so according to the legal opinion that has been provided to the Opposition and the crossbenchers. Why do we not discuss it now at a reasonable level before the Government steps into the deep black hole - another deep black hole? But this is far more complicated. It is dealing with abstruse points of law. I do not pretend to understand those points of law fully, because I am not legally qualified, but I know very well that the Hon. J. W. Shaw, who is a Queen's Counsel, understands them and I know that Dr Andrew Stewart of the department of industrial relations at Sydney University understands them. I am willing to accept their expert advice on these matters.

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The Hon. Dr B. P. V. Pezzutti: Maybe they are telling fibs.

The Hon. ELISABETH KIRKBY: Madam Chair, this is becoming ridiculous. If the Hon. Dr B. P. V. Pezzutti believes that leading industrial relations academics in this State as well as members of the bar tell fibs, I suppose the only possible reason for making such a remark is that members of his party in another place tell fibs on every possible occasion.

The TEMPORARY CHAIRMAN (The Hon. Beryl Evans): Order! I ask the honourable member to return to the amendment.

The Hon. ELISABETH KIRKBY: It seems clear that, legally, allegations based on boycott conduct as defined under the basic liabilities of section 45D may be brought only under the Federal statute. That is the whole point of the argument before the House. It is the reason the Australian Democrats are supporting the amendment moved by the Australian Labor Party. It appears to me clear, on the legal advice that I have been given to read, that this clause is in total contravention of Federal legislation and therefore we would be on very dangerous ground indeed if we allowed it to go through unchallenged.

The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-President of the Executive Council) [5.58]: Honourable members are concerned over the question of jurisdiction. I should like to make the position clear by indicating to the Chamber that it is indeed a valid area of operation for State legislation involving non-corporations and not involving interstate or overseas trade or commerce. If the Federal legislation is repealed, of course State legislation will cover the field. I think that simply and precisely puts an end to the argument mounted by all speakers against the clause on the question of State and Federal jurisdiction. The Hon. Judith Walker asked whether any other State government had incorporated these sorts of provisions. Queensland used such provisions very successfully under Joh. At one stage the people of Queensland were greatly protected against a power problem by those provisions. The Labor Government in Queensland has now repealed those provisions. It was suggested that we went into the last election campaign with this matter kept under a rock. I draw to the attention of the Hon. Judith Walker that at the very first press conference at the State Office Block at the beginning of the campaign the Premier referred to this specific matter. It was also contained within our 1988 policy platform. So there has been no endeavour to hide this matter. It really stretches the imagination to suggest that we have hidden anything in the field of industrial relations from the public.

I turn to the question of the International Labour Organisation. The Government would take the view that the general criticism of the International Labour Organisation is that all the people who work there could be described as Laborites regardless of who they are supposed to be representing. That is the basic problem with the International Labour Organisation. The Hon. J. W. Shaw cried tears of blood about the Government being in violation of some International Labour
Page 3503
Organisation convention, yet every State and Federal government in this country is in violation of a number of so-called International Labour Organisation conventions merely because that organisation puts itself very much into the mould of what is called the industrial relations club. On this occasion the interjection by the Hon. Dr B. P. V. Pezzutti was spot on. For those reasons the Government opposes the amendment.

The TEMPORARY CHAIRMAN (The Hon. Beryl Evans): Order! The question is, That the amendment be agreed to. All those in favour say "Aye", to the contrary "No".

The Hon. Judith Walker: Aye.

The TEMPORARY CHAIRMAN: I think the noes have it.

The Hon. Judith Walker: The ayes have it.

The TEMPORARY CHAIRMAN: There was only one voice for the ayes.

The Hon. J. W. Shaw: I ask that the matter be recommitted and I seek leave to object to the ruling if need be.

The TEMPORARY CHAIRMAN: Order! There is a ruling of this House that if only one voice is raised the question is determined accordingly. Only one voice was heard. The Hon. Judith Walker was the single voice that was heard.

The Hon. Judith Walker: The Opposition obviously seeks leave to recommit the amendment at a later stage in Committee.

The Hon. E. P. Pickering: I understand my colleagues' dilemma. They will have to show their puppet masters that they divided on this amendment. I will concede to the calling of a division.

Question - That the amendment be agreed to - put.

The Committee divided.

Mrs Arena
Dr Burgmann
Ms Burnswoods
Mr Dyer
Mr Egan
Mr Enderbury
Mrs Isaksen

Mr Johnson
Mr Kaldis
Mrs Kite
Mr Macdonald
Mr Manson
Mr Obeid
Mr O'Grady

Mr Shaw
Mrs Symonds
Mr Vaughan
Mrs Walker
Tellers,
Mr Jones
Miss Kirkby

Page 3504
Noes, 20

Mr Bull
Mrs Chadwick
Mr Coleman
Miss Gardiner
Mr Gay
Dr Goldsmith
Mr Hannaford

Mr Jobling
Mr Moppett
Mr Mutch
Mrs Nile
Revd F. J. Nile
Mr Pickering
Mr Ryan

Mr Samios
Mrs Sham-Ho
Mr Rowland Smith
Mr Webster
Tellers,
Mrs Forsythe
Dr Pezzutti

The TEMPORARY CHAIRMAN (The Hon. Beryl Evans): The vote being equal, I give my casting vote with the noes and declare the question to have passed in the negative.

Amendment negatived.

Division agreed to.

Chapter agreed to.

[The Temporary Chairman (The Hon. Beryl Evans) left the chair at 6.10 p.m. The Committee resumed at 8.0 p.m.]

Chapter 4

Part 1

Division 1

The Hon. J. W. SHAW [8.0]: I move:

Pages 98-113. Omit Part 1 of Chapter 4 and Division 1 of Part 2 of Chapter 4 (clauses 287-327), insert instead:



CHAPTER 4 - THE INDUSTRIAL RELATIONS COMMISSION AND OTHER BODIES


PART 1 - THE INDUSTRIAL RELATIONS COMMISSION


Division 1 - Preliminary
Definitions
287. In this Part:
"President" means the President of the Commission;

Page 3505
"Vice-President" means the Vice-President of the Commission.


Judicial members


288. The President and the Vice-President and any Deputy President of the Commission who is appointed by the Deputy's instrument of appointment as a Judicial Member are referred to in this Act as Judicial Members.


Commission in Court Session


289. (1) The Commission constituted by a Judicial Member is referred to in this Act as the Commission in Court Session.
(2) The Full Commission constituted by a majority of Judicial Members is referred to in this Act as the Full Commission in Court Session.
(3) A reference in this or any other Act to the Industrial Court or the Full Industrial Court is to be read as a reference to the Commission in Court Session or the Full Commission in Court Session, respectively. [Note: This provision would be deleted on re-committal of Bill to effect consequential amendments.]


Presidential members


290. The President, the Vice-President and the Deputy Presidents of the Commission are referred to in this Act as Presidential Members.



Division 2 - Establishment etc. of Industrial Relations Commission


Establishment of the Commission


291.(1) There is established by this Act the Industrial Relations Commission of New South Wales.
(2) The Commission consists of:
(a) a President; and
(b) a Vice-President; and
(c) Deputy Presidents; and
(d) Conciliation Commissioners.
(3) The Commission is to have a seal and the seal is to be judicially noticed.
(4) The Commission in Court Session or the Full Commission in Court Session is a superior court of record.

Page 3506
The President, Vice-President and other Judicial Members
292.(1) The Governor may, by commission under the public seal of the State, appoint as President of the Industrial Court:
(a) a person who is already a Judicial Member of the Commission; or
(b) a Judge of another court of record; or
(c) an eligible barrister or solicitor who is under 72 years of age.
(2) The Governor may, by commission under the public seal of the State, appoint as Vice-President of the Commission:
(a) a person (other than the President) who is already a Judicial Member of the Commission; or
(b) a Judge of another court of record (except such a Judge who is the Chief Justice of the Supreme Court or the President of the Court of Appeal); or
(c) an eligible barrister or solicitor who is under 72 years of age.
(3) The Governor may, by commission under the public seal of the State, appoint as a Deputy President and Judicial Member of the Commission (other than the President and Vice-President):
(a) a Judge of another court of record (except such a Judge who is the Chief Justice of the Supreme Court or the President of the Court of Appeal); or
(b) an eligible barrister or solicitor who is under 72 years of age.
(4) In this section, a reference to an eligible barrister or solicitor is a reference to:
(a) a barrister who, at all times during the last preceding period of 5 years, was either on the roll of barristers or, when not on the roll of barristers, was on the roll of solicitors; or
(b) a solicitor who, at all times during the last preceding period of 7 years, was either on the roll of solicitors or, when not on the roll of solicitors, was on the roll of barristers.
Appointment of members of Commission (other than Judicial Members)
293.(1) The members of the Commission (being Deputy Presidents other than Judicial Members and Conciliation Commissioners) are to be appointed by the Governor, on the recommendation of the Minister, by commission under the public seal of the State.
(2) The Minister may not recommend a person for appointment as such a member of the Commission unless, in the opinion of the Minister, the person has the skills and experience in the field of industrial relations that are appropriate for the office to which the person is recommended for appointment.

Page 3507
(3) A person of or above the age of 65 years is not eligible to be appointed as a member of the Commission (other than a Judicial Member).
(4) However, a person who is or was a member of the Commission may be appointed as such a member after the person reaches the age of 65 years.
(5) Any appointment under subsection (4):
(a) may not be made in respect of a person so as to extend beyond the date on which the person reaches the age of 72 years; and
(b) may be made before the person reaches the age of 65 years (in which case the appointment has effect on and from the date the person reaches that age); and
(c) is to be made for a term not exceeding 3 years at any one time.
Acting President
294.(1) If the President is absent from duty or there is a vacancy in the office of President, the Vice-President is to act as President during the absence of the President or during the vacancy in the office of President unless the Vice-President is absent from duty or there is a vacancy in the office of Vice-President.
(2) If both the President and the Vice-President are absent from duty or there is a vacancy in both those offices, the next senior Judicial Member who is present on duty is to act as President until:
(a) the return to duty of the President or the Vice-President; or
(b) if there is a vacancy in both those offices - until one of the vacancies is filled.
(3) While acting as President, the Vice-President or other Judicial Member has the functions of the President and anything done by the Vice-President or other Judicial Member in the exercise of those functions has effect as if it had been done by the President.
Acting Judicial Members
295.(1) The Governor may, by commission under the public seal of the State, appoint as an Acting Judicial Member a person qualified for appointment as a Judicial Member or a person who was formerly a Judicial Member or a Judge of another court of record.
(2) The commission by which an Acting Judicial Member is appointed:
(a) may specify conditions and limitations to which the appointment is subject; and
(b) must specify as the date on which the appointment expires a date that is not more than 12 months later than the date of the commission and is not later than the date on which the Acting Judicial Member would attain the age beyond which the period of appointment of an Acting Judge of the Supreme Court may not then extend.

Page 3508
(3) Appointment as an Acting Judicial Member may be subject to a condition excluding all, or a part, of the period served as an Acting Judicial Member from being regarded as a period served in a prior judicial office as referred to in section 8 (2) of the Judges' Pensions Act 1953.
(4) An Acting Judicial Member:
(a) has the functions of a Judicial Member other than the President; and
(b) is taken to be a Judicial Member, subject to any conditions and limitations to which the appointment as Acting Judicial Member was made.


Acting Deputy Presidents (other than Judicial Members) and Conciliation Commissioners
296.(1) The Governor may, by commission under the public seal of the State, appoint as an Acting Deputy President or Acting Conciliation Commissioner a person qualified for appointment as such if satisfied that the additional member is necessary to enable the Commission to exercise its functions effectively during the period of the appointment.
(2) Any such person is to be appointed for a period (not exceeding 12 months) as is specified in the person's commission.
(3) An Acting Deputy President or Acting Conciliation Commissioner has the functions of, and is taken to be, a Deputy President or Conciliation Commissioner, as the case requires.
(4) An acting Deputy President under this section is not a Judicial Member.


Dual Federal and State appointments
297.(1) A member of the Commission may hold office as a member of a prescribed industrial authority constituted under a law of the Commonwealth.
(2) A member of a prescribed industrial authority constituted under a law of the Commonwealth may, if otherwise eligible, be appointed as a member of the Commission unless the law of the Commonwealth otherwise provides.
(3) A person who is a member of the Commission and also a member of a prescribed Commonwealth authority may, in accordance with any agreement made between the President of the Commission and the head of the Commonwealth authority:
(a) exercise functions as a member of the Commonwealth authority; and
(b) in relation to a particular matter, exercise functions that the person has in relation to the matter both as a member of the Commission and as a member of the Commonwealth authority.
(4) The appointment, as a member of the Commission, of a person who is a member of a prescribed Commonwealth authority may be for a fixed term and such a member holds office until:

Page 3509

(a) the expiration of the term; or
(b) he or she ceases to be a member of the Commonwealth authority; or
(c) he or she resigns, or is removed, from office as a member of the Commission,
whichever first occurs.
(5) A member of a Commonwealth authority who is a member of the Commission is not to be remunerated as a member of the Commission but may be paid such amounts as the Minister considers to be reasonable for travelling expenses incurred in discharging the duties of a member of the Commission.
Seniority
298.(1) The members of the Commission have seniority according to the following order of precedence:
(a) the President;
(b) the Vice-President;
(c) the Deputy Presidents, according to the days on which their commissions took effect or, if the commissions of 2 or more of them took effect on the same day, according to the precedence assigned to them by their commissions;
(d) the Conciliation Commissioners, according to the days on which their commissions took effect or, if the commissions of 2 or more of them took effect on the same day, according to the precedence assigned to them by their commissions.
(2) If a retired member is re-appointed under this Act, the member's seniority is to be determined as if there had been no break in the member's service.
Status, remuneration etc. of Judicial Members
299.(1) Each Judicial Member has the same rank, title, status and precedence and, subject to subsection (2), the same remuneration and other rights, as a Judge of the Supreme Court (other than the Chief Justice and the President of the Court of Appeal).
(2) The remuneration of the President and the Vice-President is to be determined under the Statutory and Other Offices Remuneration Act 1975.
Remuneration of Members (other than Judicial Members)
300. The remuneration of a member of the Commission (other than a Judicial Member) is to be determined under the Statutory and Other Offices Remuneration Act 1975.

Vacancy in office of member

301.(1) A Judicial Member (other than an Acting Judicial Member) ceases to hold office as a member of the Commission on ceasing to hold office under the Judicial Officers Act 1986.

Page 3510

(2) The office of any other member becomes vacant if the member:
(a) dies; or
(b) is an acting member appointed for a limited period and the period expires without the member being re-appointed; or
(c) resigns the office by instrument in writing addressed to the Minister; or
(d) is removed from office by the Governor under this section; or
(e) reaches the age of 65 years (unless appointed as a member after that age); or
(f) is absent from duty, except on leave of absence granted by the President, or, in the case of the President, by the Minister for 14 consecutive days or for 28 days in any period of 12 months; or
(g) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; or
(h) becomes a mentally incapacitated person; or
(i) is convicted in New South Wales of an offence that is punishable by penal servitude or imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable.
(3) The Governor may suspend a member (other than a Judicial Member) from office for incapacity, incompetence or misbehaviour, but such a suspension expires unless the member is removed from office as provided by subsection (4).
(4) If such a member is suspended under this section:
(a) the Minister is to cause a full statement of the grounds of suspension to be laid before each House of Parliament within 7 sitting days after the suspension if Parliament is in session or, if the House of Parliament is not in session, within 7 days after the commencement of the next session; and
(b) the member is to be removed from office by the Governor if each House of Parliament so resolves within 21 sitting days after the statement is laid before it under paragraph (a).
Disclosure of pecuniary and other interests
302.(1) If, as constituted for a proceeding, the Commission comprises, or includes, a member who has or acquires any interest, pecuniary or other, that could conflict with the proper performance of the member's functions in relation to the proceeding:
(a) the member must disclose the interest to the parties to the proceeding; and
(b) unless all the parties consent - the member must not take part in the proceeding or exercise any function in relation to the proceeding.

Page 3511

(2) If the President becomes aware that subsection (1) applies to a proceeding, the President must:
(a) direct the member not to take part, or any further part, in the proceeding; or
(b) cause the interest of the member to be disclosed to the parties to the proceeding.
(3) If, in relation to a proceeding:
(a) a direction is given to a member under subsection (2) (a) - the member must comply with the direction; or
(b) a disclosure is made in accordance with subsection (2) (b) - the member must not take part in the proceeding, or exercise any function in relation to the proceeding, unless all the parties to the proceeding consent.
(4) A contravention of this section does not invalidate a decision of the Commission or the exercise of a function under this Act.
Leave for member of Commission
303.(1) The entitlement of a member of the Commission to annual and other leave is to be as stated in the instrument of appointment as a member.
(2) A member of the Commission may be granted leave:
(a) in the case of the President - by the Minister; and
(b) in any other case - by the President.
Superannuation and leave - preservation of rights
304.(1) In this section:
"eligible member" means a member of the Commission who, immediately before becoming such a member, was a non-judicial member of the Industrial Commission of New South Wales, a public servant or an officer or employee of a public authority declared by an Act to be an authority to which this section applies;

"superannuation scheme" means a scheme, fund or arrangement under which any superannuation or retirement benefits are provided and which is established by or under an Act.

(2) An eligible member:
(a) may continue to contribute to any superannuation scheme to which he or she was a contributor immediately before becoming an eligible member; and
(b) is entitled to receive any payment, pension or gratuity accrued or accruing under the scheme,as if he or she had continued to be such a contributor during service as a member of the Commission.

Page 3512

(3) Service by the eligible member as a member of the Commission is taken to be service as an officer in his or her previous employment for the purposes of any law under which the member continues to contribute to the scheme or by which an entitlement under the scheme is conferred.
(4) The eligible member is to be regarded as an officer or employee, and the Crown is to be regarded as the employer, for the purposes of the scheme.
(5) This section ceases to apply to the eligible member if he or she becomes a contributor to another superannuation scheme, but the eligible member is not prevented from receiving a resignation benefit from the first superannuation scheme.
(6) An eligible member retains any rights to annual leave, extended service leave and sick leave accrued or accruing in his or her previous employment.
(7) An eligible member is not entitled to claim, under both this Act and any other Act, dual benefits of the same kind for the same period of service.
Criminal jurisdiction
305.(1) Proceedings for any offence in respect of which proceedings are taken before the Commission are to be dealt with summarily by the Commission in Court Session.
(2) The Supreme Court (Summary Jurisdiction) Act 1967 applies to proceedings referred to in subsection (1) in the same way as it applies to proceedings that may be taken before the Supreme Court in its summary jurisdiction.
(3) For the purposes of subsection (2), a reference (however expressed) in the Supreme Court (Summary Jurisdiction) Act 1967:
(a) to the Supreme Court (except in section 15) - is taken to be a reference to the Commission in Court Session; and
(b) to rules - is taken to be a reference to rules of the Commission; and
(c) to the Prothonotary - is taken to be a reference to the Industrial Registrar.

The amendment seeks to rectify the artificial and unnecessary division of functions which the bill contemplates between a new Industrial Relations Commission and a new Industrial Court. The bill proposes to scrap the current Industrial Commission of New South Wales and establish a divided commission and court. Currently the commission is empowered to exercise a range of conciliatory, arbitral and judicial powers as the need arises. The commission is admirable in its flexibility. Tribunal personnel are equipped with a range of concurrent powers to assist in the prevention and resolution of industrial problems. The bill proposes an unnecessary and artificial division of jurisdictional functions between the new Industrial Relations Commission and the Industrial Court. This means that the commission would no longer enjoy its current flexibility or range of powers to assist in dispute prevention and resolution. Instead, certain matters would be hived off to the Industrial Court where they would
Page 3513
be dealt with as matters of black letter law. This proposal can only delay the process of dispute prevention and settlement.

The commission-court split was decisively rejected by the Legislative Council when the Industrial Court Bill 1990 was denied a second reading. Not one organisation that made a submission to the Niland inquiry called for such structures as its preferred option. The proposal has been trenchantly criticised from all quarters - for example, the judiciary, the Bar Association, the Labor Council, the Employers Federation, the International Commission of Jurists and even the former Attorney General, Mr John Dowd, Q.C. The Minister argued in his second reading speech that "the separation of judicial from arbitral functions will underpin the process of making awards and agreements and the process of ensuring their successful operation". But even if one accepts that a division of jurisdictional functions is necessary to enforce the industrial relations calendar - a proposition that we reject - the establishment of these new tribunals is unnecessary. Indeed, in volume 1 of the green paper Professor Niland recommended that there should be an integrated commission. This recommendation was accepted by all interested parties. Subsequent proposals to dismember the commission have been universally criticised.

It should be noted that the proposal for two tribunals follows the unfortunate and complicated situation that has existed in the Federal jurisdiction since the boilermakers case in 1956. This system creates considerable difficulties at the Federal level and is regarded as unfortunate by the parties actively concerned with the administration of that Federal system due to the increased legalism it has engendered. There is absolutely no valid reason to import such unnecessary difficulties into the State sphere. The constitutional difficulties that apply federally and that gave rise to the boilermakers case and its reliance upon the division of powers between the judiciary and the administration simply do not apply to State parliaments. They are sovereign parliaments that can provide for institutions or tribunals that can exercise both judicial and arbitral powers. This is a vital area of debate between the Government and the Opposition. It is one of the sillier and less thought out parts of the Greiner Government's agenda. It is an aspect of the package that really has no support in the community amongst people concerned with industrial matters.

The present Industrial Commission can exercise a variety of powers in one and the same matter, and that flexibility is very important to the state of our operations. If a party desires to have its award interpreted, that can be done. But in one and the same proceeding the commission can vary the award. So parties are able to apply for an interpretation and or variation of the award. That process is not available federally because of the separation of powers doctrine. Yet it ought to be available if people want sensibly to be able to resolve industrial disputes. I put to the Committee earlier in this debate, and I want to recapitulate very briefly, that an employer, for example, may have a dispute about the correct interpretation of the award obligation. Yet the employer might think that the commission would uphold a contrary interpretation to that favoured by the employer. In that situation the
Page 3514
employer can ask the commission to interpret the provision and, if the interpretation is against the intention of the employer, it can ask the commission to vary the award to accord with common sense or practicality. That is essentially the reason why employers generally do not support this dismemberment of the Industrial Commission by the present Government. It is an example of the Government going off on its own ideological path without regard to the considered views of those who really know what they are talking about in this field.

I desire to say something about the concern of the judges of the Industrial Commission as expressed in the press. Their concern has substance. I do not agree with all that has apparently emanated from the judges in the communications with the Attorney General; I agree with some of it. They have a legitimate concern when a superior court of record is dismembered by parliamentary enactment and the status and position of the judges is affected by that dismemberment. I think that aspects of the bill have the capacity to interfere with the independence of the judiciary. The Australian Bar Association said this about the independence of the judiciary:

There are, in addition to the courts, other bodies which are not courts but which must exercise their powers in a judicial manner, one aspect of which is that they must operate independently of those directly affected by such exercise.

Two aspects of this bill have a capacity to interfere with that notion of independence of tribunals. The first is that members of the newly-created Industrial Relations Committee and Industrial Court are not to be given any separate or new commission. This is an area of concern expressed by the judges and it does have validity. It would have been much more appropriate for the legislation to contemplate that people be newly commissioned to a particular court or a particular tribunal. The second area of concern is that of the relevant advisory council. The idea that there should be some council exercising some advisory functions in relation to the tribunal has the capacity to detract from its independent operation. I have in mind the obligations that will flow from the existence of the council on the commission or court; in particular the commission must report to the Minister and maintain some sort of liaison with the Minister. In any event, these concerns have been expressed.

The concerns would be addressed by the Opposition's amendment in that the essence of this amendment is to preserve the existing Industrial Commission, a most effective, respected tribunal that has the capacity to create a viable package in 1991. The tribunal is respected throughout the country as a tribunal of expertise and standing and it has received legitimacy among the parties to industrial proceedings in New South Wales. The Government will say that it has accepted the idea that the present judges and deputy presidents of the Industrial Commission of New South Wales should remain and, in particular, it has accepted the idea that the present judges should be appointed both to the court and to the commission. I accept that that is a compromise, a backdown by the Government in the face of overwhelming pressure. Clearly the Government was under enormous pressure when it was suggesting that the judges ought to be hived off into a commission of lesser status
Page 3515
and standing or that the judges ought to be segregated in some court with precious little to do except impose the occasional penalty.

The Committee will appreciate that the pressure in the community snowballed against this proposition. Everyone came out against it - employer groups, the former Attorney General, the Hon. John Dowd, the International Commission of Jurists and so on. The Government was left without a leg to stand on in defending this proposition. It made the expedient compromise that it would appoint the present incumbents to both the commission and the court. The problem that the Opposition identifies with that pragmatic compromise is that although it preserves the position for the immediate future, it allows the Government in the future to appoint particular people to the court only or to the commission only so that in the medium to longer term it allows the Government to achieve its aim of separating the commission from the court. It is that potential for the longer term and untoward separation of these tribunals that leads the Opposition to suggest that the existing Industrial Commission should be preserved in its present form.

The Hon. A. B. MANSON [8.13]: In supporting the Opposition's amendment it seems to me that the establishment of an Industrial Court and the virtual destruction of what is at present an effective Industrial Commission should be totally opposed by all members of the Committee, in particular Opposition members. It has been opposed by everyone, from the Employers Federation to the Labor Council of New South Wales, from the Bar Association to the Government's former Attorney General.

The Hon. Virginia Chadwick: On a point of order. The words being used by the honourable member are precisely the same words used by the Hon. J. W. Shaw in his introductory remarks and hence are repetitious.

The Hon. J. W. Shaw: On the point of order. Essentially, the points may be the same but the words are certainly not identical to the words used by me.

The TEMPORARY CHAIRMAN (The Hon. Beryl Evans): Order! I uphold the point of order and ask the Hon. A. B. Manson to confine his remarks to the amendment being debated.

The Hon. A. B. MANSON: There must be something seriously wrong with a proposal capable of drawing such wide criticism. There has to be something wrong with an attempt to replace a working system with another that exists in the world of misguided theory. Clear-thinking members have already noted the problems that are likely to arise from a labour court as envisaged by the Minister for Industrial Relations and Minister for Further Education, Training and Employment. It is interesting to note that it is only the Minister who supports a labour court. Even Professor Niland, supposedly the fountain of industrial relations truth, recommended an integrated model. However, he recommended an integrated court based on the rights versus interests dilemma - a dilemma that will plague our system if this bill
Page 3516
becomes law. Let us ask ourselves whose interests this unwanted creation will serve. So far as I can see, it can serve only those of the legal profession and the Government.

By dealing with those disputes that the lawyers themselves see fit to deal with they can create yet another self-made monopoly. The Hon. J. W. Shaw has elsewhere pointed to a number of legal problem areas: the validity of enterprise agreements; the relationship between those agreements and current awards; unlawful versus lawful strikes; and, of course, jurisdictional problems. Lawyers can expect a field day, not to mention a fee bonanza. Costs will make a simple reinstatement case a financial nightmare and probably not worth the effort, but no doubt that will suit the Government's aim. This is the same Government that is trying to maintain the solicitors' conveyancing monopoly. Why on earth would the Government see fit to transport what is one of the biggest problems at a Federal level into this State? Why a separate labour court? Some possibilities are: new appointees may be needed - new, well-paid employees sympathetic to the Government and to this legislation; existing commission members may be forced to compromise, or shall I say modify their approach to some extent in order to secure their positions, that is, if their positions remain available; and legal costs will make many common law actions too expensive for many employees and their organisations - particularly unions and small enterprise unions. In the final analysis what we have is an unnecessary, forced change to a healthy Industrial Commission, and the establishment of an antagonistic white elephant.

The Hon. VIRGINIA CHADWICK (Minister for School Education and Youth Affairs) [8.20]: The proposed amendment, which is opposed by the Government, provides for a single industrial tribunal, such as the Industrial Relations Commission, without the existence of the Industrial Court. The Australian Labor Party is creating artificially a superior court of record within the commission as the enforcing arm of the commission, and certain judicial members of the commission will comprise that judicial arm. The sanctity of awards and agreements is a concept that underpins much of the bill's legislative thrust. Such sanctity of bargained terms is possible only if the tribunal system is arranged suitably to distinguish between the negotiation of employment conditions and their enforcement. That distinction necessitates the deployment of arbitral and judicial functions to separate bodies. The tribunal that makes or assists in the making of employment conditions cannot, in the view of the Government, properly secure the trust and candour of the parties appearing before it if it is also required to absolutely enforce the bargain. Hence the separate establishment of an Industrial Relations Commission exclusively exercising conciliation and arbitration functions and an Industrial Court having judicial enforcement functions.

Whereas the Government proposes that certain judges of the court will also be members of the commission, this is for the purpose of ensuring that the full arbitral and judicial expertise of the present judicial members of the Industrial Commission is not forfeited. Nevertheless, care has been taken in the drafting of the
Page 3517
bill, in clause 291, to ensure that a judge cannot determine matters in the court when as a member of the commission he or she has been earlier involved in that case in the commission, and vice versa in respect of proceedings that began in the court and were transferred necessarily to the commission. This restriction on the ability of dual appointees to exercise complete commission and court powers is in accordance with the Government's policy to ensure the enforcing judge is not the arbitrating commission member. In effect there is apparent agreement by the Australian Labor Party with the Government on the functioning of the commission. To my knowledge there are no proposed amendments relating to the many provisions of chapter 4 of the bill concerning conciliation committees, contract regulation committees, the commission panel system, regional presence of the commission, commission procedure, and the formation of a President's Advisory Council. Thus it comes down to the crucial point of whether there should be a separate Industrial Court or a judicial branch of the commission. For the reasons stated, the Government believes arbitral and judicial functions within the industrial relations system should be separated for handling by different bodies. The Government rejects the proposed amendment.

Question^___That the amendment be agreed to^___put.

The Committee divided.



Ayes, 15

Mrs Arena
Ms Burnswoods
Mr Dyer
Mr Enderbury
Mrs Isaksen
Mr Johnson

Mr Jones
Miss Kirkby
Mrs Kite
Mr Macdonald
Mr O'Grady
Mr Shaw

Mrs Symonds

Tellers,
Mr Kaldis
Mr Manson
Noes, 15

Mr Bull
Mrs Chadwick
Mr Coleman
Mrs Forsythe
Mr Gay
Dr Goldsmith

Mr Hannaford
Mr Jobling
Mr Moppett
Mrs Nile
Revd F. J. Nile
Dr Pezzutti

Mr Webster

Tellers,
Mr Mutch
Mr Samios
Pairs

Miss Gardiner
Mr Pickering
Mr Ryan
Mrs Sham-Ho
Mr Rowland Smith


Dr Burgmann
Mr Egan
Mr Obeid
Mr Vaughan
Mrs Walker

Page 3518

The TEMPORARY CHAIRMAN (The Hon. Beryl Evans): The votes being equal, I give my casting vote with the noes and declare the question to have passed in the negative.

Amendment negatived.

Division agreed to.

Part agreed to.

Chapter agreed to.

Chapter 5

Part 3

Division 2

The Hon. J. W. SHAW [8.35]: I move:

Pages 154, 155, clause 434. Omit the clause.

This amendment relates to political donations by registered industrial organisations. Clause 433 of the bill deals generally with loans, grants and donations and provides certain safeguards for the making of loans, grants and donations by registered organisations. Clause 433, which the Opposition does not seek to delete or omit, provides that the rules of an organisation must make appropriate provisions for loans, grants or donations and, in particular, must provide that the committee of management in order to validly make such a donation must satisfy itself that the making of a loan, grant or donation in accordance with the rules and, in the case of a loan, that appropriate security is available for the repayment of the loan. Clause 433 also requires that the committee of management must approve the making of a loan, grant or donation. The essence of the amendment proposed by the Opposition is that political donations should not be distinguished from any other loan, grant or donation that an organisation might see fit to make.

After all, how can a political donation be clearly or objectively distinguished from any other donation? No clear or precise test could be used to determine whether a donation is charitable, philanthropic or political. The ambit of political activity clearly comprehends a wide scope of activity in this society. In our view there is no satisfactory basis for the bill providing for separate restrictions in relation to political donations compared to donations with other objects or purposes. The Opposition acknowledges what the Minister said in another place to the effect that affiliation fees by registered trade unions would not be affected or comprehended by the particular restrictions in clause 434 of the bill. The Minister in another place made quite clear that only donations other than affiliation fees were to be singled out for special treatment. The Opposition understands that to be the intention of the
Page 3519
Government in moving these particular provisions. Donations other than affiliation fees, however, are subject to special restriction under clause 434 of the bill.

In summary, those restrictions are, first, that there should be a separate fund which must be established for the purpose of dealing with and containing such levies and, second, that contributions raised from members of the organisation must be voluntary in relation to political donations of that kind. The Opposition contends that this proposal represents an ill-disguised attack on the ability of trade unions to make donations to political parties and to individual candidates or members who might support the interests and philosophy of the trade union movement in Parliament. It represents also an attack on the ability of trade unions to make donations concerning political causes and campaigns. Democratically elected officials should have the right to administer union funds in such manner as they see fit and should be able to do so in order to protect the interests of the members, provided of course that such donations are made in accordance with the union's rules and any statutory provisions such as those contained in clause 433 of the bill.

If the membership of a trade union or other registered industrial organisation disagrees with a decision of the committee of management to donate a sum of money to a particular political party or political cause, the democratic government of such an organisation allows that committee of management to be thrown out at the next election and a system of representative democracy to apply so as to enable the membership to veto or reject the inappropriate political contributions of a registered industrial organisation. The Government argues that it is being even-handed in this legislative scheme because the provisions will apply to both registered trade union bodies and registered employer bodies. However, that is clearly a misleading argument. The registered employer bodies under the industrial legislation do not make substantial donations, or probably any donations, of a political nature. It is the corporations, or the individual employers, that are affiliated with registered employer bodies that make the regular and expected donations to political parties. So there is no symmetry between the scrutiny that the bill provides in relation to registered industrial organisations. The parties can continue to receive donations from individual employees or corporations. But the Labor Party, so this bill contends, is stultified in receiving political donations from organised labour or registered trade unions. It would be quite different if the Government proposed that similar notions should apply to companies registered under the Companies (New South Wales) Code, but obviously there is no such proposal. This amendment should be carried, and the restrictions upon political donations should be omitted from the bill.

Reverend the Hon. F. J. NILE [8.41]: The Call to Australia group opposes the amendment. It feels strongly about the amendment and congratulates the Government for having the courage to include the provisions in the legislation. As I said earlier, the Labor Party electoral return for the last election showed that $1.4 million was given by the unions to the State Australian Labor Party. Obviously this is a sore point with the Australian Labor Party. I think the total budget was $4.7 million.

Page 3520

The Hon. J. R. Johnson: It is a democratic organisation with a democratically elected committee. Has the Call to Australia group got that?

Reverend the Hon. F. J. NILE: People who belong to the Call to Australia group, members of unions and members of the Liberal Party or the National Party are contributing to their political opponents by this large donation. The other point I wish to make is that honourable members hear a lot - and rightly so - about donations made by woodchip companies. People are concerned about that. Most of those donations are in the vicinity of $5,000, $10,000 or $20,000. Union donations are in the vicinity of $300,000, which is a large amount. The Canberra victory fund gave the State Australian Labor Party $1.2 million.

The Hon. J. R. Johnson: Where does the honourable member think it came from? Does he think it was drug money or something?

Reverend the Hon. F. J. NILE: That is the question. Where did it come from? State legislation says there must be disclosure of all donations. Clearly, Canberra has attempted to break the law by giving the State Australian Labor Party $1.2 million. Someone said the New South Wales Teachers Federation had not made a donation. I could find none in the electoral return. However, the Teachers Federation spends hundreds of thousands of dollars on direct advertising. The Independent Teachers Association spent a large amount of money in the last election. That is why I was not worried when it announced this week that it would continue to campaign against me. What is new? The Call to Australia group supports the proposed legislation. We think it is fair and just and that the Australian Labor Party should support it.

The Hon. Dr MEREDITH BURGMANN [8.44]: I shall be brief. The proposed legislation singles out unions by proposing not to allow them to make political donations in a way that it has not attempted to regulate other organisations. What about the National Roads and Motorists Association, which spends a huge amount of money each election on anti-government advertisements. That is the equivalent of making a donation to one or other political party. The NRMA is a beautiful example of a conscript organisation. Honourable members have talked about unions being conscript organisations, but if one wants to have one's car fixed on the road, there is only one organisation to belong to, and that is the NRMA. The NRMA is a very political body. It makes huge donations each election to political parties. Individual shareholders in companies get no say in whether the company makes donations to political parties. This sort of legislation would have to apply the same sorts of provisions to companies. Unless every single shareholder in the company agreed, companies would not be able to make donations. The rest of the proposed legislation will make unions into token voluntary organisations. There is no provision for the closed shop or for preference. Why will the Government not give totally voluntary organisations the right to do what they want to with their money?

Page 3521
The Hon. A. B. MANSON [8.46]: I support the amendment. It is fair to say that this is perhaps the most disgustingly blatant attack on workers that I have seen in the bill, or anywhere else for that matter. The ability of workers to organise and gain representation for their concerns is, at the best of times, an uphill slog, which Government members would not know much about. It is reprehensible of the Government to attempt this sort of thing. The question of political donations is obviously a vexed issue. It is generally a touchy subject, particularly for politicians who do not mind doing the odd favour - particularly well-known National Party politicians. But to be fair to what I hope is the majority of my fellow elected representatives, this need not be so. Political donations are more or less part of a democratic electoral process and are here to stay. Though that is not an ideal situation, it is generally accepted. This clause, contained in what was supposed to be a piece of industrial legislation, is completely unacceptable, that is, without the same provisions being applied to the private sector. Members on the treasury benches should ask themselves what would happen if the shareholders of Elders IXL or the multitude of corporations and businesses voted on the level of Liberal Party contributions. This clause is discriminatory and politically motivated. It is not surprising to find it in this bill among more than 300 pages of New Right garbage. As a matter of principle, the clause should be omitted from the bill.

The Hon. JUDITH WALKER [8.49]: The least I can say is that I have some difficulties with the Government's intentions.

The CHAIRMAN: Order! The Hon. Judith Walker should address the amendment.

The Hon. JUDITH WALKER: I always address the amendment, Mr Chairman. I hope I never deviate in any sense.

The Hon. J. R. Johnson: Reverend the Hon. F. J. Nile has just informed me he will make a donation to the Labor Party, and we will accept it.

The CHAIRMAN: Order!

The Hon. JUDITH WALKER: Mr Chairman, you would appreciate that I always face the Chair and never engage in debate on the side but in view of what has occurred behind me, may I bring some seriousness to the debate by defining the word "donation". The noun "donation" is defined by the Australian Concise Oxford Dictionary in the following terms:

bestowal, presenting; thing presented, gift (esp. of money given to institution).

What more can be added to that definition? The Government is telling all State-registered unions - and I emphasise that phrase, as I did earlier in the debate when I was discussing sections 45D and 45E - that they will not be permitted to make donations for political purposes. One of my colleagues in this Chamber said he did
Page 3522
not believe in political donations. The word "political" is defined in the Macquarie Dictionary as:

1. pertaining to or dealing with the science of art of politics . . . 2. pertaining to or connected with a political party, or its principles, aims, activities, etc . . . 3. exercising or seeking power in the Government or public affairs of a state, municipality or the like . . . 4. of or pertaining to the state or its government . . . 7. having a definite policy of system of government . . . 9.Colloq. interested in politics . . .

I do not think I need to define a political animal because if members of this Chamber cannot understand what a political donation is, they would hardly know what a political animal is. The Opposition amendment seeks to remove the whole of clause 434. The clause is an absolute insult to the trade union movement. It provides that the executive of a State-registered trade union, which is elected by the members of the union - I am not talking about unions that are registered federally or unions with dual registration - cannot make decisions as to use of donations. If honourable members obtained a set of union rules, they would find that a number of unions, State and federally registered, are precluded by the union's aims and objectives from making political donations. What in the name of God are we talking about? Who are we talking about? It is said that employer organisations will be similarly restricted. That will not be a great problem because they do not make political donations. Honourable members must then refer to the Companies (New South Wales) Code, which is absolutely fascinating. So far as we know, under that code similar proposals apply to company funds. That brings us back to the question of what happens to major companies who make donations to political parties, of whatever persuasion. I am not concerned whether it is the Liberal Party, the National Party, the Labor Party or the Call to Australia group.

I cannot say that large New South Wales companies do not make donations to the Call to Australia group, the Australian Democrats or any other party. The Government has taken the simplistic approach of drawing a line in respect of a State-registered union and companies who operate under the auspices of the Companies (New South Wales) Code. Elders IXL, which was referred to by my colleague, is probably not registered in New South Wales. It is probably registered in Victoria and can make whatever donations it wants to without suffering the effects of this legislation. Government members know that and if they think that this provision is a thinly veiled threat to stop the State trade union movement from making donations to its political wing, they are sadly mistaken. I do not know whether the Government is trying to cast pearls before swine or whether it thinks Opposition members are all idiots. The Government wants to intervene in the democratic processes of the unions. It wants to direct the management committee of a union, which is elected democratically under the relevant section of the existing Act, as to what it can and cannot do with the money paid to it as union dues.

I have clearly drawn to the attention of honourable members that if the making of such donations is not included in the aims and objectives of a particular
Page 3523
union, the management committee cannot make such donations. I should like to ask the Minister for School Education and Youth Affairs, the Minister in the other House and the advisers sitting against the wall - and after this debate they have their backs right to the wall - who will be the major victims of this unwarranted attack on the democracy of the union movement and the views of its members. I ask them to direct my attention to any part of the Companies (New South Wales) Code that provides that the directors of a company cannot make a political donation. How is the word "political" to be defined when it relates to a donation? I ask the advisers to the Minister to define the status of companies bound by the Companies (New South Wales) Code. At present the same situation pertains as pertained last week when I walked back into the Chamber. The Government is still talking about the beautiful playing field created by the Minister for Industrial Relations, John Fahey, but the positions of the players on the field are still being changed so that there is not and cannot be any equality. I ask the Minister for School Education and Youth Affairs to tell me what the provision means and, more importantly, how the Government can come to the view that the legislation is even-handed because the provisions will apply also to registered employer bodies. That of course means organisations such as the Metal Trades Industry Association and the Chamber of Manufactures.

The Hon. Dr B. P. V. Pezzutti: The Australian Medical Association.

The Hon. JUDITH WALKER: That is a union, not an employer body. I have told the Hon. Dr B. P. V. Pezzutti that before. The Government's argument is totally misleading. The handful of registered employers simply do make substantial donations of a political nature. I question whether it could always be said that if a union makes a donation, that donation must be of a political nature. How does one determine that it is a donation of a political nature? No one, certainly not the Government, has explained that. So far as I am concerned, if proposals are to be introduced that seek to tie a union's hands behind its back as to what it can and cannot do in regard to funding, the Government should examine the Companies (New South Wales) Code. In terms of seeking support from members of the Call to Australia group, I am amazed by their slavish acceptance of the Government's view on this most unwarranted piece of legislation, which goes far and beyond the legislation previously introduced. That legislation was argued and ultimately torn to pieces with 88 divisions and 357 amendments, if my memory serves me correctly.

Call to Australia did not support us then; it does not support us now. It says that it is not a political group; it is religious. If it is not political, why does it have members in the New South Wales Parliament? If it states that it has never received a donation from a worker or a group with political inclinations, I would like to go through its history to check its donations. I refer also the Liberal and National parties. Whether they will admit it or not, there have been donations. Under the English system trade unions register the names of parties to which they make donations. I do not know why the Government has inserted this naked, aggressive attack on the democracy of the trade union movement and its people. It is a very

Page 3524
poor attempt indeed. Unfortunately, the constitution of this Chamber has meant that votes on the bill have been split 20-20, a line call. The Government will win on the vote of the Chair. We will have to take our bat and ball and go home.

The Hon. J. R. JOHNSON [9.2]: I have a few questions to ask the Minister. Which organisations in Australia are barred by statute from making donations from their funds? None - I will answer for the Minister. Is that democratic? Is it just? Is it reasonable? A point that may have escaped the Government in its haste is that the provision also applies to registered employer bodies. Numerous individual employers make political donations. The NRMA is a registered employer association. It is some years since I looked at the list of registrations but at the time David Jones, in its own right, was a registered employer association. The Myer organisation, of which Bevan Bradbury, the Federal president of the Liberal Party -

The Hon. Dr Marlene Goldsmith: Wrong.

The Hon. J. R. JOHNSON: He is an office-holder of the Liberal Party, a member of the Liberal Party. He is also the former general manager of the Coles-Myer organisation. The coalition parties should be careful that their funds are not cut off, because it could happen. The graziers' association is a registered employer association. The grain-growers' association and numerous other associations throughout this State and Commonwealth are employer associations that will be roped in under the terms of this legislation. I do not think they will be very amused. We all remember the tragedy of the Hilton bombing some years ago. Members of the municipal employees union were killed. The union set up a fund - that is all it was - to assist the widows and children of those who lost their lives in the Hilton bombing. The various unions made various donations, large and small. Would this bill bar such action to assist the families of members of another union with sustenance and whatever else through life? Reverend the Hon. F. J. Nile seems to have a preoccupation with the Teachers Federation. The Teachers Federation is not and never has been affiliated with the Labor Party. I have little doubt that in all the years that I have been a member of this Parliament this is the worst legislation that has been introduced. Honourable members opposite should hang their heads in shame at calling themselves democrats. Reverend the Hon. F. J. Nile also has a preoccupation with disclosures. But he told me that he had a donation from a lady who said, "For goodness sake do not tell my husband that I am making this donation". There was not a democratic decision in that household.

Reverend the Hon. F. J. Nile: Out of her own funds.

The Hon. J. R. JOHNSON: You do not know that. That is not what Reverend the Hon. F. J. Nile told me some weeks ago. He has one rule for those who subscribe to his funds and another rule for those who subscribe to the Labor Party. My case rests.

Page 3525
The Hon. VIRGINIA CHADWICK (Minister for School Education and Youth Affairs) [9.9]: I have listened with considerable interest to the comments of honourable members opposite in their strident opposition to this clause. One of the things that has come through very loud and clear is the confusion in their arguments. Members opposite, including the Hon. Judith Walker, said that this was a naked attack on the democratic process and on the Labor Party in particular. The Hon. J. R. Johnson drew specific and particular attention to a number of other organisations which, according to him would not be representative of the trade union movement and showed that the provision is not a specific and particular attack upon the trade union movement. He listed the NRMA, the grain-growers association, David Jones, Coles-Myer and so on. The record will show, therefore, that this clause affects those organisations as well as the trade union movement. It has been asserted by members opposite that somehow this clause is an attack upon the democratic right of people to make donations to the political party of their choice. That is not so. A clear reading of the clause shows beyond any dispute that there is no mechanism within the clause which will stop any organisation making a donation to the Labor Party, the Liberal Party, the National Party, the Call to Australia group, the Australian Democrats, or to particular individuals of a person's choosing.

The distinguishing feature which clearly sticks in the craw of honourable members opposite is that this clause gives choice to members of organisations - a choice that is not available at present. If honourable members opposite feel that some of their traditional financial support may be eroded if members of those organisations have the right to choose, I will support democracy every time. Clause 434 does not prohibit the payment of political donations to the Australian Labor Party or, indeed, to any other political party. It does not prevent affiliation fees being paid by unions. Clause 427(1)(a) requires union rules to make provision for affiliation fees. Clause 434 ensures that a union executive cannot arbitrarily impose a levy on a member who does not support the purpose for which the levy is being imposed. It ensures that such a levy can be used only for the purpose for which it was raised. Unless a member who has voluntarily paid the levy agrees to it being used for another purpose, the committee of management of the union must approve of the imposition of the levy, which must then be in accordance with union rules. I submit that the Opposition has raised a smokescreen to hide the real issue, which is that an individual union member should be free to choose whether he or she wishes to pay a levy in respect to a political object.

The Hon. Judith Walker: It is governed by the constitution of the union's rules.

The Hon. VIRGINIA CHADWICK: Perhaps the Opposition opposes this clause because it wishes union executives to be able to arbitrarily impose levies on union members and to remain unaccountable as to how those moneys are spent. If the Opposition does not hold that view it should withdraw the amendment.


Page 3526
The Hon. JUDITH WALKER [9.14]: The Minister directed the attention of the Opposition to clause 427(1)(a) which reads:

The rules of an organisation must provide for:
(a) the entrance fees, subscription, affiliation and other amounts (if any) to be paid by members of the organisation;


Where is that not met by existing rules of existing State-registered unions? The Minister, her advisers and the Minister in another place cannot provide any such examples or any such details. I remind the Minister for School Education and Youth Affairs and her advisers that in a substantial delivery, I suppose one might say, by the Minister in another place, he devoted four lines only in a speech of 23 pages to the subject under discussion. In his second reading speech he said:

The bill also requires specific levies to political objects to be made voluntarily by members of organisations of employers and employees, and such moneys must be kept in a separate account. However, these requirements do not affect charitable donations or the payment of affiliation fees by industrial organisations.


To some degree one could say that that is some sort of gratis comment by the Minister but it shows that the Minister and his advisers have no understanding of the way unions are constituted and how they operate both in this State and federally. If the Minister for School Education and Youth Affairs holds the view that clause 427(1)(a) will solve the problem, she is wrong. Having been a State secretary of a union I assure the Minister that unless the constitution and rules of the union allow it, in no way can a secretary, a president or the whole of the committee of management make a donation to anyone, let alone a political body. The Opposition asked for examples of registered unions in this State doing such dreadful things.


[Interruption]


The Hon. JUDITH WALKER: The members have always been able to choose. Under the rules and constitution of a union if a levy is to be struck the matter must be voted on, so what in the name of God are we talking about? I do not want to reiterate the points I made and I promised myself that until the closing stages of the debate on this bill - whenever that may be - I would not ask by way of intercession, plea or anything else for any explanation of the position of the Call to Australia group. I believe that by his absolutely subjective approach to the Industrial Relations Bill Reverend the Hon. F. J. Nile has made a complete and utter fool of himself and his party. When he talks about politics and donations, I am appalled, shocked and horrified. If this clause represents the Government's attempt to create another one of its clever level playing fields, it has brought down God knows what on its head and it will fail ultimately when it tries to put it into practice.


Question^___That the amendment be agreed to^___put.

Page 3527
The Committee divided.



Ayes, 15

Ms Burnswoods
Mr Dyer
Mr Enderbury
Mrs Isaksen
Mr Johnson
Mr Jones

Mr Kaldis
Miss Kirkby
Mrs Kite
Mr Manson
Mr O'Grady
Mr Shaw

Mrs Symonds

Tellers,
Mrs Arena
Mr Macdonald
Noes, 15

Mr Bull
Mrs Chadwick
Mrs Evans
Mrs Forsythe
Mr Hannaford
Mr Jobling

Mr Moppett
Mr Mutch
Mrs Nile
Revd F. J. Nile
Dr Pezzutti
Mr Samios

Mr Webster

Tellers,
Mr Coleman
Dr Goldsmith
Pairs

Miss Gardiner
Mr Ryan
Mrs Sham-Ho
Mr Rowland Smith


Dr Burgmann
Mr Egan
Mr Obeid
Mrs Walker

The CHAIRMAN: The vote being equal, I give my casting vote with the noes and declare the question to have passed in the negative.

Amendment negatived.

Division agreed to.

Division 3

The Hon. J. W. SHAW [9.27]: I move:

Page 159, clause 443. Omit the clause, insert instead:
Cost of elections
443. The expenses of an election conducted under this Division must be borne by the State.

Page 3528
The bill provides that the cost of secret postal ballots, as prescribed by the bill, should be borne by the organisation concerned. The Opposition takes the view that the State should bear the expense of the form of ballot that the legislation will impose on the registered body. The Opposition does not disagree with the idea of secret postal ballots but it believes the State should bear the expense. After all, that is the well-established system federally. Subsection 4 of section 215 of the Federal Industrial Relations Act 1988 provides that expenses incurred by the Australian Electoral Commission in conducting elections under that Act shall be borne by the Commonwealth. Comity between Federal and State law suggests that the State should bear the expenses rather than individual organisations.

[Interruption]

The CHAIRMAN: Order! The Hon. J. R. Johnson will have a chance to speak later, if he so wishes.

The Hon. VIRGINIA CHADWICK (Minister for School Education and Youth Affairs) [9.29]: The Government does not support the proposed amendment of the Opposition. The argument about comity between State and Federal legislation does not hold much water; there are so few Federal unions compared with State registered unions. The Federal system of the Commonwealth paying for union elections was the result of a deal done between the Federal Labor Party and the Australian Council of Trade Unions. Who pays for the Federal Government largesse? We do. The taxpayers pay for it. It is not some amorphous body called the Federal Government that pays. We, the taxpayers, pay. The New South Wales Government will not impose such a levy on its taxpayers.

Amendment negatived.

Division agreed to.

The Hon. J. W. SHAW [9.32] I move:

Pages 170 - 172. Omit clauses 466, 467, 468, 469, 470, 471 and 472.

The amendment moved by the Opposition concerns the proposed rationalisation provisions in the bill. Under these proposals, a ballot could be held at a workplace to decide which unions should have exclusive membership rights, irrespective of the rights of members of minority unions, for example, the will of only a handful of drivers, electricians, clerks or nurses could be overridden by majority vote. These workers may lose their specialised union representation by virtue of the majority vote of union X or union Y. It seems inequitable that membership rights should be displaced in that rather crude fashion. Clause 220, on the other hand, empowers the Commission to make union rationalisation orders. The method of demarcation contemplated by clause 220 is a much more subtle and appropriate method of determining the appropriate trade union for employees to belong to. The rather
Page 3529
primitive method of majority vote contemplated in this section of the bill could lead to idiosyncratic results. A union representing a tiny minority of the work force in a political plant suddenly could become an exclusive single representative of the total work force. Employers would be horrified that a minority union could suddenly take over representative functions in a plant. This unsatisfactory and ill-considered method of trade union rationalisation ought to be opposed.

The Hon. VIRGINIA CHADWICK (Minister for School Education and Youth Affairs) [9.35]: The Government does not accept the proposal of the Opposition because the provisions sought to be deleted are aimed at achieving a single union environment for an enterprise. Facility is provided for the Commission to approve a properly conducted secret ballot for an enterprise to decide whether or not a union workplace should be transformed into a single union enterprise. For rationalisation to occur, a yes vote must be recorded of at least 65 per cent of the persons employed at an enterprise. In addition, the bill provides adequate scope for the Industrial Registrar to hear any alleged irregularities. The Opposition's proposed amendment goes against all current trends in rationalising union coverage in Australia and serves to deny workers the chance to democratically express their preference for their own representation. This is yet another example of amendments being proposed by the Opposition which cut right across people's right to choose. Accordingly, the proposed amendment is rejected.

The Hon. JUDITH WALKER [9.38]: The Minister has forgotten the recent remarkable success in amalgamation that the trade union movement has experienced through the offices of the Australian Council of Trade Unions, under Federal legislation and also at the initiative of workers themselves. The Transport Workers Union and the National Union of Workers are conducting an ongoing campaign and a ballot is imminent. Storemen and packers and the allied trades workers have amalgamated. Clause 466(1)(a) provides that an application may be made to the commission by one or more industrial organisations representing persons employed in an enterprise. Such an industrial organisation, however, may have no connection at all with the union movement and may have been set up as a result of an enterprise agreement to negotiate on behalf of the workers.

The Hon. Virginia Chadwick: But 65 per cent of the workers may want that.

The Hon. JUDITH WALKER: A repetitive factor in the legislation - and the Minister has mentioned it yet again - is the requirement that 65 per cent of the workers at an enterprise may carry a vote, irrespective of the size of an establishment - some might have only three employees - and the difficulties of the proposed legislation. The thrust of the Government's approach in the bill is to emasculate the union movement, having already succeeded in emasculating the Industrial Commission. The impact of the proposed legislation can only be imagined once it hits industrial unions across New South Wales. The Government through the bill is seeking to allow a group of people to suddenly stand as an industrial
Page 3530
organisation without any affiliation to or connection with the union movement or union members at the workface. The provisions of the bill herald the emergence of groups that, as industrial organisations, will be able to organise and seek to convince 65 per cent of workers in various enterprise agreements that these groups rather than recognised trade unions represent the workers as bargaining agents. Employment agencies are now being set up. I have drawn to the attention of honourable members that during the past two years in particular there has been a significant move by employment agencies to become registered in terms of the proposed legislation.

Employment agencies will place people in employment as employees and bypass the provisions of the bill. The Opposition's amendment in terms of absolutely omitting clauses 466 to 472 is attempting to say that the Government does not intend to rationalise union coverage. I keep drawing the Government's attention to the fact that State-registered unions that will be covered by the proposed legislation - it will not affect federally-registered unions or individual craft unions - operate under State registration, such as the Teachers Federation, the Public Service Association, the Nurses Association, the Professional Medical Officers Association, the Police Association and, as I mentioned to the Minister for Police and Emergency Services earlier, the Commissioned Police Officers Association. How does the Government plan to rationalise those groups of people? The bill is a big lie. Though I have a great deal of respect for the Minister for School Education and Youth Affairs, I do not think she understands what the bill is all about. How does she intend to rationalise the Teachers Federation, which is an industry-based union and the only union, beyond ancillary staff and cleaners within the school system, that the Minister will have to deal with.

The Hon. Virginia Chadwick: And the Professional Officers Association.

The Hon. JUDITH WALKER: But that will cover only a small number. The majority of the people with whom the Minister has to deal are members of the Teachers Federation or the Public Service Association, which covers ancillary staff at the department's vocational branches, and perhaps some members of the Professional Officers Association employed in schools. How can the Government talk about rationalisation of the union movement in the context that the Minister for Industrial Relations and Minister for Further Education, Training and Employment and the advisers are telling us. It is nonsense. What is it about the proposed legislation that will reduce industrial relations in this State to the laughingstock not just of New South Wales but of the whole of Australia? I have given up. I said so in the debate on the amendment relating to preference to unionists. There is no point in my asking the Call to Australia group to consider what I am saying. It is not that Reverend the Hon. F. J. Nile and the Hon. Elaine Nile do not have the capacity to understand the argument. Somewhere buried in the backs of their brains they have some hatred of unions such as the Teachers Federation, the Nurses Association, the Police Association, et cetera. Those are the unions that will be affected, in the main, by the proposed legislation.

Page 3531
The Hon. ELISABETH KIRKBY [9.43]: I wish to put briefly on the record that the Australian Democrats do not support this Opposition amendment. My views were made clear when the House debated these matters last year. It does not seem reasonable that if we are trying to get enterprise agreements under way - and let me place on the record again that the Australian Democrats support enterprise agreements - the only way for union representatives to get together in a workplace or factory in which many unions are represented is for the union representatives to get together and decide which union will represent them in enterprise agreement negotiations. There may be few members of a minority union, but I do not believe that would make it impossible for them to abide by the decisions reached with management by the union that represents the majority. I have used the example of Goninans many times previously where there are 15 unions on the shop floor. All 15 unions could not be represented.

The Hon. Judith Walker: Goninans has a works committee.

The Hon. ELISABETH KIRKBY: If it has a works committee, the works committee can select one spokesperson for the whole shop floor. There is precedent for that in the enterprise agreement entered into by ICI Limited in Queensland, which is being followed by ICI in New South Wales. The Queensland award covered both blue collar and white collar workers. That is the path New South Wales should be following. It is for those reasons that the Australian Democrats cannot support the amendment.

Reverend the Hon. F. J. NILE [9.45]: I wish to put on record the support of the Call to Australia group for the bill as presented and its opposition to the amendment. The Hon. Elisabeth Kirkby mentioned 15 unions on one shop floor. Unions through their restrictive work practices and demarcation arguments are killing the State and the nation.

The Hon. Judith Walker: The Teachers Federation and the Police Association?

Reverend the Hon. F. J. NILE: We will straighten the Teachers Federation out after this bill goes through. You watch.

The Hon. VIRGINIA CHADWICK (Minister for School Education and Youth Affairs) [9.46]: Given that I indicated the Government's rejection of the proposed amendments, I thank the Hon. Elisabeth Kirkby and the Call to Australia group for their support for this matter. I could not help but note that when my friend and colleague the Hon. Judith Walker was indicating her position and giving examples of negotiations leading to successful rationalisation she spoke of the unions involved getting together to discuss and hopefully implement rationalisation. The difference, therefore, between the views of the Opposition and those of the Government - and in this case the crossbenchers - is clear. I have an enormous stake
Page 3532
in the workers' involvement in the enterprise and I should much prefer to have 65 per cent of them, rather than their union leadership, decide their future.

The Hon. JUDITH WALKER [9.47]: When I used the word "unions" I meant the workers who make up the unions.

Question^___That the amendment be agreed to^___put.

The Committee divided.



Ayes, 13

Mrs Arena
Mr Dyer
Mr Enderbury
Mrs Isaksen
Mr Johnson

Mr Kaldis
Mrs Kite
Mr Macdonald
Mr Manson
Mr Shaw

Mrs Symonds

Tellers,
Ms Burnswoods
Mr O'Grady
Noes, 17

Mr Bull
Mrs Chadwick
Mr Coleman
Mrs Evans
Mrs Forsythe
Dr Goldsmith

Mr Hannaford
Mr Jobling
Miss Kirkby
Mr Mutch
Mrs Nile
Revd F. J. Nile

Dr Pezzutti
Mr Samios
Mr Webster
Tellers,
Mr Jones
Mr Moppett
Pairs

Miss Gardiner
Mr Ryan
Mrs Sham-Ho
Mr Rowland Smith

Dr Burgmann
Mr Egan
Mr Obeid
Mrs Walker

Question so resolved in the negative.

Amendment negatived.

Division agreed to.

Division 5

The Hon. J. W. SHAW [9.57]: I move:

Page 175, clause 480. Omit the clause, insert instead:

Page 3533
Preference to unionists
480.(1) On application to it, the Commission may, if the Commission considers this to be reasonable and appropriate, insert (by way of variation or otherwise) in an award (whether made before or after the commencement of this section) provisions designed to encourage employees or employers to become members of industrial organisations.
(2) The provisions may include a provision providing for absolute preference of employment to the members of the industrial organisation or organisations specified in the award.
(3) A preference to members of an industrial organisation conferred by the insertion of a provision in an award in accordance with this section is to be limited to the situation where:
(a) a member of an industrial organisation and a person who is not a member of an industrial organisation are offering for service or employment at the same time; or
(b) either such a member or a person who is not such a member is to be dismissed from service or employment.
(4) The Commission is not to insert any provision in an award that makes membership of an industrial organisation compulsory.
(5) Nothing in this section limits or in any way affects any law relating to preference in employment to persons who have served as members of the Naval, Military or Air Forces of the Commonwealth.
Conscientious objectors
481.(1) For the purposes of this section, "conscientious belief" includes any conscientious belief, whether the grounds for it are or are not of a religious character and whether the belief is or is not part of the doctrine of any religion.
(2) Any person who:
(a) objects on the grounds of conscientious belief to being a member of an industrial organisation; and
(b) applies in the manner prescribed by the regulations to the Industrial Registrar for a certificate of exemption from membership of any such industrial organisation; and
(c) satisfies the Industrial Registrar that his or her objections on the grounds of conscientious belief are genuine; and

Page 3534

(d) pays to the Industrial Registrar an amount equivalent to the subscription prescribed by the rules of the industrial organisation for membership of such organisation,
is to be issued by the Industrial Registrar with a certificate of exemption from membership of the industrial organisation.
(3) Any such certificate remains in force for the period specified in it and may be renewed from time to time by the Industrial Registrar on payment of such amount, not exceeding the amount referred to in subsection (2) (d), as the Industrial Registrar may require.
(4) Any amount received by the Industrial Registrar under this section must be paid by the Industrial Registrar to the credit of the Consolidated Fund.
(5) Any person whose application for a certificate of exemption from membership of an industrial organisation, or for any renewal of it, under this section is refused, may, within the period prescribed by the regulations after the decision of the Industrial Registrar refusing the application, appeal in the manner prescribed to the Commission from such decision.
(6) The Commission may on such an appeal make such order as it thinks fit.
(7) Despite subsections (1) to (6), no person can be compelled to join an industrial organisation.
Offences in relation to conscientious objectors etc.
482. (1) An employer must not:
(a) dismiss an employee who is a conscientious objector or an employee who chooses not to belong to an industrial organisation, or injure such an employee in his or her employment, or alter the position of such an employee to the employee's prejudice, because the employee is not a member of an industrial organisation of employees; or
(b) threaten to dismiss an employee who is a conscientious objector or an employee who chooses not to belong to an industrial organisation of employees, or threaten to injure such an employee in his or her employment, or threaten to alter the position of such an employee to the employee's prejudice, with intent to coerce the employee to join an industrial organisation of employees; or
(c) refuse to employ a person who is a conscientious objector or an employee who chooses not to belong to an industrial organisation of employees, because the person is not a member of an industrial organisation of employees.
(2) An industrial organisation of employees must not:

Page 3535
(a) advise, encourage or incite an employer to take action in relation to a person that would, if taken, contravene subsection (1); or
(b) take, or threaten to take, industrial action against an employer with intent to coerce the employer to take action in relation to a person that would, if taken, contravene subsection (1); or
(c) take, or threaten to take, action having the effect, directly or indirectly, of prejudicing a person who is a conscientious objector in his or her employment or an employee who chooses not to belong to an industrial organisation of employees, with intent to coerce the person to join an industrial organisation of employees.
(3) A person who contravenes subsection (1) or (2) is guilty of an offence.
Maximum penalty: 100 penalty units.
(4) In a prosecution for an offence under subsection (3), it is not necessary for the prosecutor to prove the defendant's reason for the action charged or the intent with which the defendant took the action charged, but it is a defence to the prosecution if the defendant proves that the action was not motivated (whether in whole or part) by the reason, or taken with the intent (whether alone or with another intent), specified in the charge.
(5) For the purposes of this section, action done by:
(a) the committee of management of an industrial organisation of employees; or
(b) an officer, employee or agent of an industrial organisation of employees acting in that capacity,
is taken to have been done by the industrial organisation of employees.
(6) If an employer or an industrial organisation of employees is convicted of an offence under subsection (1) or (2), and a person affected by the offence has suffered any loss as a consequence, the Commission may order the employer or industrial organisation of employees to pay to the person such sum as appears to the Commission to be appropriate.
(7) On conviction of an employer of an offence under subsection (3) constituted by dismissing an employee, the Commission may order the employer:
(a) to reinstate the person to the position that the person occupied immediately before the dismissal or a position no less favourable than the position; and
(b) to pay the person the whole or part of the wages lost by the person because of the dismissal; and

Page 3536

(c) if the person has suffered any other loss as a consequence, to pay to the person such sum as appears to the Commission to be appropriate.
(8) In this Division:
"conscientious objector" means:
(a) a person in relation to whom there is in force a certificate under section 481 (1); or
(b) a person who has applied for a certificate under section 481 (1) and whose application has not been determined.

The bill provides that an award or former industrial agreement cannot confer a right of preference of employment in favour of a member of a trade union over a person who is a non-member. This displaces the current arrangements where a preference to unionists clause may be inserted into an award upon application to the commission. Preference to union members plays an important part in regulating industrial affairs by the legislative encouragement of union membership, that is, encouraging employers to engage persons who are union members or who are willing to become union members. The system of conciliation and arbitration is thereby assisted. In a string of decisions, the High Court of Australia, the Federal commission and the Industrial Commission of New South Wales have consistently found that preference to unionists does not amount to compulsory unionism. Rather, the idea of preference to members of trade unions means that where competent and qualified persons are competing for a particular position at the point of engagement, preference to members of trade unions is to be applied and this encourages union membership rather than requiring or rendering it compulsory.

The courts have determined that preference to union members, when coupled with the rights of conscientious objection to union membership, is a useful device for encouraging the industrial relations parties into representative, registered bodies of employers and employees. The issue of preference was dealt with in the voluntary unionism bill which previously came before this Chamber and was purportedly the reason for calling the early election. Interestingly, it seems that despite the fuss created by the Government, it nevertheless in the original version of the bill which came before the Legislative Assembly allowed for the idea of preference to unionists in enterprise agreements. The Government moved an amendment in the other place to abolish even that form of preference to unionists. In his green paper Professor Niland, though generally recommending against the idea of preference to unionists, thought that the idea of preference had an ideal role to play at least in a limited sphere, that is, in the idea of preference to a member of union X as against a member of union Y.

Professor Niland thought that preference clauses of that limited kind would reinforce demarcation arrangements and prevent their disruption. Indeed, in
Page 3537
recommendation 61 he states that a preference clause may be inserted in an award or agreement provided such a clause relates only to preference in employment for members of one union over another union and that the effect of the preference clause is to reduce the scope of demarcation disputes and promote the goal of fewer unions exercising coverage within the establishment or enterprise. I refer to volume 1 of the green paper at page 157. This is yet another aspect in relation to which the Government has disregarded the recommendations of the green paper in a move towards a more extreme and ideologically rigid position. It has sought to ban any form of preference to unionists altogether. The Opposition amendment would allow the Industrial Commission - whatever the relevant tribunal is called as a result of this bill - to determine in its discretion that certain forms of encouragement of membership of trade union bodies or employer bodies ought to be provided for. It seems sensible and practical to suggest that the independent tribunal ought to have that power to determine in particular circumstances that the encouragement of membership ought to be the subject of prescription.

The Hon. ELISABETH KIRKBY [10.2]: The Australian Democrats support this amendment not only for the reasons given by the Hon. J. W. Shaw or because Professor Niland suggested in his green paper that it would be a good idea under certain conditions to have preference for unionists; we support it because it has been brought to our attention by employers that in certain circumstances they too want preference given to one union over another. I believe that the Government included such a provision in the so-called voluntary unionism bill earlier this year at the express wish of certain sections of employers, particularly retail traders. They were anxious that their employees come under the umbrella of the Shop, Distributive and Allied Employees Association and they do not want to employ people who come under the umbrella of the storemen and packers. By removing that ability of employers to have the choice between one union and another in this bill the Government is not even meeting the needs of certain sections of the retail trade.

It seems ridiculous that something the Government thought was reasonable to include in legislation in February and March is believed by it to be totally unnecessary six months down the track. The Government has not included in this legislation a provision it was happy to have included in legislation in March. There is no logic in the position that the Government is taking. I believe it will cause a great deal of trouble to the retail traders of this State. That is not in the best interests of the State. At present the retail trade is very flat and with rising unemployment it probably will not pick up even for Christmas. For all those reasons and the reasons outlined by the Hon. J. W. Shaw the Australian Democrats support the amendment.

Reverend the Hon. F. J. NILE [10.3]: It seems we have been speaking on this provision for the past three years, contrary to some of the false reports put out by the Labor Council that the bill has been rammed through Parliament and there has not been any debate on it. So I do not believe we need to go into extended debate on it.

Page 3538

The Hon. Judith Walker: Both bills were gagged in the lower House.

Reverend the Hon. F. J. NILE: After the majority of members had spoken, in a way that was never allowed by the Labor Party. There were 36 speeches in the lower House. We support division 5, which relates to voluntary unionism. The Australian Democrats are voting against voluntary unionism. We support voluntary unionism and no preference to unionists in awards or agreements. Clause 480 is short and simple. The Labor Party wishes to delete the clause and replace it with one giving preference to union members. I have been hearing alarming reports that in some places where a reduction in employees has been necessary because of the recession brought about by Keating and company the unions have agreed to the sacking of non-union members, irrespective of how long the employees have worked there. The non-unionists go first. To achieve industrial peace employers have sacrificed people who are not in the union. The Federal Government, with its totalitarian attitude, wants to bring in preference for union members in many areas, including long service leave, superannuation and other areas. Adoption of the Australian Labor Party amendment would mean compulsory unionism. This bill brings in voluntary unionism, which we support. We support freedom of choice. The people of Europe are experiencing that and it is time the people of New South Wales experienced it.

The Hon. Dr MEREDITH BURGMANN [10.6]: One would think that if one opposed preference to one group of workers in awards, one would oppose any form of preference: one would want a totally level playing field. But the bill does not provide this. This clause allows for "preference in employment to persons who have served as members of the Naval, Military or Air Forces of the Commonwealth". So why is there preference for diggers if there is not preference for unionists? Surely the Government has to be consistent.

Reverend the Hon. F. J. Nile: We appreciate their fighting for our country.

The Hon. Dr MEREDITH BURGMANN: Reverend the Hon. F. J. Nile has it wrong. These are not people who have fought and died for us; these are people who have simply served in the forces. People who oppose preference because they want a level playing field should be fair dinkum about it and omit preference to those who have served in the forces. Government members should not tell us that they want one group of people not to have preference over another, because that is what already is being provided in the bill. Preference to unionists does not mean compulsory unionism; it is simply an encouragement to collectivity. Collectivity is the only way the industrial system can work. Clause 480 seems to allow by omission for preference in enterprise agreements. So if the Government is opposed to preference, why does it not fix up its own drafting. The Australian expert in the field, Gianni Zappalia -

[Interruption]

Page 3539
The CHAIRMAN: Order! The Hon. J. R. Johnson and the Hon. D. F. Moppett may contribute to the debate in the normal manner if they wish.


The Hon. Dr MEREDITH BURGMANN: I have looked at what various authorities in the field say about preference. Gianni Zappalia has written the two seminal monographs in the area. He is from the Australian Centre for Industrial Relations Research and Teaching, which is attached to the University of Sydney. He has pointed out that preference clauses have covered only a minority of awards. The total number of awards with some form of preference clause is falling. In 1954, 32 per cent of awards had some form of preference. The figure has fallen to 27 per cent. Another point he made is that a closed shop achieved through preference may not necessarily lead to increased bargaining power. The nature of certain industries and occupations makes voluntary recruitment difficult, and a closed shop may be the only viable option. For instance, it was in industries subject to casualisation and high turnover rates, such as the stevedoring and construction industries, that the closed shop originally arose. Then there is the free rider problem. Is it right for all workers to enjoy the fruits of a few without contributing to this effort? Obviously Government members believe it is right. The closed shop may lead to more efficient management-labour relations through increased stability and procedural ease for both management and unions.


The Hon. J. R. JOHNSON [10.11]: I believe firmly in preference to unionists. Under our current industrial relations system who benefits from the work the trade union puts into the preparation of logs of claims, negotiations with employers, site inspections and appearances before the various tribunals? All the preparatory work involved before an award is ratified by the commission is paid for by union members and no one else. Unions do not receive a State subsidy to present logs of claims or to protect employees. That is paid for by unionists - it comes out of unionists' pockets. So why should non-unionists receive benefits paid for by unionists?


Reverend the Hon. F. J. Nile: Non-unionists should not receive wages different from those received by unionists.


The Hon. J. R. JOHNSON: There used to be a provision in some awards that union members received higher wages than those of non-union members. Needless to say, there were no non-union members. If I am not a member of a medical benefits fund, a friendly society or a funeral fund, I cannot receive the benefits. I can make an application to a funeral fund for a benefit but if I am not a member, I cannot receive a benefit. A friendly society will not pay out a benefit to a non-member.


The Hon. D. J. Gay: How much do non-unionists in Broken Hill get paid?


The Hon. J. R. JOHNSON: I have no idea.

Page 3540
The Hon. D. J. Gay: Nothing; they cannot get a job.

The Hon. J. R. JOHNSON: If I am not a member of a medical benefits fund, I can make a claim but I will not get paid. I do not believe in anyone sponging on the trade union movement, and non-unionists are nothing more than spongers on the trade union movement. I do not know of any employer who gave employees a wage increase until the union negotiated for it. I know of some who, from time to time, have paid overaward payments, but every time the award wage increased they maintained their overaward payments. Award wages are minimum wages only. They are the lowest wages one can pay. I believe that one should be able to pay the basic wage - the lowest wage - to a non-unionist and the award wage to unionists. If that were the law, non-unionists would be lined up from here to Bourke to join a union. Without trade unionism the industrial arbitration system of this country would collapse. Unionism must be encouraged. No country in the world with a free, democratic and independent trade union movement ever went to the extreme left or to the extreme right. Had there been a free and independent democratic trade union movement in eastern Europe and in Russia the imperfections of that dreadful system would never have been imposed on those countries for the past 70 years. A free and independent trade union would not have stood for it, as they would not stand for it in this country.

[Interruption]

The Hon. J. R. JOHNSON: The Hon. Dr Marlene Goldsmith does not know what she is talking about. She has been reading fairy tales. Those comments are not worthy of her. I do not believe that the benefits the trade union movement obtains for workers should be the lot of every worker; they should be available only to those who pay for them.

The Hon. VIRGINIA CHADWICK (Minister for School Education and Youth Affairs) [10.17]: As is well known, the Government does not accept the propositions put forward by the Opposition. The Government believes that preference in employment to unionists over non-unionists discriminates against the majority of workers in New South Wales.

The Hon. Dr Meredith Burgmann: What about non-diggers?

The Hon. VIRGINIA CHADWICK: I am pleased that the Hon. Dr Meredith Burgmann interjected. She seems to have a hang-up about the lack of a level playing field because, as she quaintly describes it, preference to diggers might be enshrined. I am sure that the honourable member, given her knowledge of the industrial arena and her professional background, would well know that preference is given to former Commonwealth defence personnel because the Commonwealth Defence Forces Act requires it. Therefore it is not a case of a level playing field. It is conforming with Commonwealth legislation. The Opposition would have us believe that preference to union members plays an important part in somehow
Page 3541
regulating industrial affairs by encouraging employers to hire workers who are union members or who are willing to become union members. What the Opposition fails to explain is the benefit, all that this provides to the 69 per cent of workers in New South Wales who work in the private sector and who do not belong to unions. It has been quite enlightening to hear how selective is the support of the Labor Party for workers in New South Wales and Australia. Does the fact that only 69 per cent of workers do not belong to unions suggest that these workers are spongers or that they should receive a lower wage, as was suggested by the Hon. J. R. Johnson.

[Interruption]

The TEMPORARY CHAIRMAN (The Hon. Beryl Evans): Order! The Minister has the call.

The Hon. VIRGINIA CHADWICK: Despite the fact that I am on this side of the political fence, and I am not and never have been a member of the Labor Party, I have always looked with some admiration to the Labor Party and its traditions and foundations - particularly in its formative years - with regard to the struggle it undertook on behalf of all workers. I was surprised this evening to learn that the Labor Party, the so-called workers' party, has an inbuilt preference; it supports only workers who are members of the trade union movement. A member of the Opposition suggested that the others are spongers and should get a different wage. That is what the Labor Party now stands for. I am not sure that the majority of workers in New South Wales realise that the Labor Party is so selective. Australia is one of the last countries in the western world not to protect the right of an employee to choose whether or not to join a union. That freedom is enshrined in legislation and acknowledged in western European countries and in Canada, New Zealand and many states of the United States of America. Prior to the presentation of this bill it was important to have conscientious objector exemptions for those who, for conscientious reasons, did not wish to join a union. One of the most significant reforms of this bill is to ensure that all employees, not just those who fall into a category labelled conscientious objectors, are free to join or not to join a union. The bill provides also that such persons should not be victimised in their employment. For their sake I hope they are free from the insult of being called spongers by members of the Opposition.

The Hon. Judith Walker: Or bludgers.

The Hon. VIRGINIA CHADWICK: Or bludgers, as the Hon. Judith Walker says by way of interjection. The language and insults that have been hurled across the Chamber at the Government about non-unionists have been colourful and florid. If ever one needed proof positive of the need for voluntary unionism, one has witnessed it tonight in this debate.

The Hon. JUDITH WALKER [10.24]: I was amazed by the rhetoric of the Minister. To be perfectly frank, there is no such thing as compulsory unionism in
Page 3542
New South Wales or Australia. If anyone could show me legislation that proves there is such a thing as compulsory unionism, I would be surprised. There was such a thing as compulsory unionism some time ago in Queensland. That is the only State in Australia to ever lend itself to compulsory unionism. The words "preference to unionists" have been enshrined in legislation by governments of all persuasions throughout Australia. It lends itself to the proper conduct of industrial relations. I do not intend to become involved in an argument or to hurl insults across the Chamber and say that people are spongers or bludgers. I am a former secretary of the Australian Insurance Employees Union and a former vice-president of the Labor Council of New South Wales. To be brutally frank I acknowledge that some trade unions have not organised themselves correctly. Because of limited resources and the tyranny of distance a number of trade unions cannot attract people to join their ranks. Trade union representatives go to workplaces and invite workers to join their unions. There is no reason to be rough with them. There is no way that they can be forced, or compelled, to join.

Reverend the Hon. F. J. Nile: I could give you a few examples.

The Hon. JUDITH WALKER: I could give you a few examples too, but I do not know that your Christianity could stand it. Mine could, but yours could not. I do not need any examples. I have promised that I will not be side-tracked and get involved in argument. The simple fact is that in Australia the trade union movement has done a valiant job. I inform the Minister for School Education and Youth Affairs and other honourable members that I have finally found my piece of wood from the tree of knowledge. I recall in Queensland when the Australian Workers Union stood for the work force - and it still does, when all the rhetoric and emotion is stripped away. As a trade unionist and a member of the Labor Party I assure the Government that the members of the Opposition, though some became emotional in their contributions to debate, have the interests of all workers at heart. When members of the Opposition said that there is a requirement and a need for the retention of the concept of preference to unionists, they meant it in the very best sense.

I shall not become involved in an argument about who or who is not in a union or whether a union has the wherewithal to invite people to join its ranks, but later debate will show that not only does the Government not want preference to unionist clauses in its legislation, but also it is endeavouring to prevent unions from entering a workplace. A real difficulty arises in that regard. I trust that workers, whether or not they have had the opportunity to listen to the debate that has been conducted in this Chamber over the past weeks, do not believe that the union movement has been of no benefit to them. The awards under which they work were the subject of agreements between the union movements and employers. That has been the practice for more than 50 years. If my memory serves me correctly, the first conciliation and arbitration legislation was enacted in 1904. Unions, awards and preference to unionists clauses are longstanding features of the history of this State and nation. I will not resort to rhetoric or emotionalism. The fact of life is that

Page 3543
every person employed today, except those working in the most obscure places, is the beneficiary of award conditions negotiated by the trade union movement with employers and blessed by the Industrial Commission. I rest my case. I do not understand why the Government cannot accept the necessity of the amendment moved by the Opposition.

Question - That the amendment be agreed to - put.

The Committee divided.



Ayes, 15

Ms Burnswoods
Mr Dyer
Mr Enderbury
Mrs Isaksen
Mr Johnson
Mr Jones

Mr Kaldis
Miss Kirkby
Mrs Kite
Mr Macdonald
Mr Manson
Mr O'Grady

Mr Shaw

Tellers,
Mrs Symonds
Mrs Arena
Noes, 15

Mr Bull
Mrs Chadwick
Mr Coleman
Mrs Forsythe
Mr Gay
Dr Goldsmith

Mr Hannaford
Mr Jobling
Mr Mutch
Revd F. J. Nile
Dr Pezzutti
Mr Samios

Mr Webster

Tellers,
Mr Moppett
Mrs Nile
Pairs

Miss Gardiner
Mr Pickering
Mr Ryan
Mrs Sham-Ho
Mr Rowland Smith

Dr Burgmann
Mr Egan
Mr Obeid
Mr Vaughan
Mrs Walker

The TEMPORARY CHAIRMAN (The Hon. Beryl Evans): Order! The vote being equal, I give my casting vote with the noes and declare the question to have passed in the negative.

Amendment negatived.

The Hon. J. R. JOHNSON [10.35]: I move:

Page 176, clause 481. At the end of clause 481(1)(i), insert:

Page 3544
; or
(j) of the person's race, colour, sex, religion, genuine moral conviction, national extraction or social origin (except that anything done that is necessary to give effect to a distinction, exclusion or preference based on the inherent requirements of a particular position is not to be regarded as victimisation).

Division 5 of part 3 contains provisions for protection against forms of victimisation. Although division 5 is entitled "Voluntary unionism", it is a misnomer as the victimisation provisions go well beyond the issue of unionism. Paragraphs (d) through to (i) of clause 481(1) relate to issues that have nothing to do with unionism in a specific sense. For example, paragraph (d) refers to a person who is a member of a conciliation committee. Clause 481(1) as it now stands, although it addresses the issue of victimisation, does not offer a protection against victimisation in the workplace in regard to a number of key grounds. It is imperative that protection be offered against victimisation in the circumstances listed in the amendment. The amendment is similar to and consistent with an amendment I proposed in relation to unfair dismissal. All honourable members would agree that workers should be protected against victimisation on the grounds referred to in the amendment.

I ask members of the Call to Australia group to support this amendment, which goes to one of their fundamental concerns. The provision is consistent with other legislation that offers protection against discrimination. It is similar to the Anti-Discrimination Act, which goes further by offering protection against victimisation based on family responsibilities, pregnancy, religion and political opinion. The amendment would not only insert discrimination provisions into industrial legislation; also it would extend existing protection to important areas. I am sure that all honourable members who are fair, just and concerned will support this moderate and just amendment. As I said earlier when discussing the last amendment, today will prove for all time whether Reverend the Hon. F. J. Nile and the Hon. Elaine Nile have a hotline to God or a hotline to the Liberal Party. The amendment is clear and concise. I have never made those sorts of comments before about Reverend the Hon. F. J. Nile, but I make them tonight.

Reverend the Hon. F. J. NILE [10.43]: The remarks made by the Hon. J. R. Johnson prove that he has a hotline straight to the Australian Labor Party. I have already indicated that two pieces of legislation to come before this Chamber will deal with specific areas of conscientious objection. Had the Hon. J. R. Johnson read this bill, he would know that clause 481(2) states:

An employer victimises a person if the employer:
(b) alters or threatens to alter the position of the person in his or her employment with the employer to the person's prejudice . . .


Page 3545
There is no restriction at all. If this amendment is carried, it may be restrictive; it will apply only in those areas. The present clause has no limit whatsoever. If an employer is to punish an employee because of his or her sex, because of pregnancy, marital status, or religious preference, that employer would be breaking this law. There is no need for this amendment. These matters are spelt out more than adequately in the legislation.


The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-President of the Executive Council) [10.45]: The Government is opposed to the amendment. The amendment is quite unnecessary. The same considerations apply to this amendment as applied to Opposition amendment No. 40A. Clause 300 of the bill already provides that the Industrial Court, in the exercise of its functions, is to take into account the principals contained in the Anti-Discrimination Act 1977 relating to discrimination in respect of employment. Similarly, clause 351 provides that the commission, in the exercise of its functions, is to take into account the principles contained in the Anti-Discrimination Act 1977. The Anti-Discrimination Act covers discrimination on the grounds of race, colour, national extraction, social origin, sex and marital status. For example, sections 25 and 28 of the Anti-Discrimination Act prohibit employers and trade unions from discriminating against employees in their employment on the ground of their sex; sections 40 and 43 prohibit such discrimination by employers and trade unions on the ground of an employee's marital status; sections 49B and 49F prohibit such discrimination on the ground of physical impairment; sections 49Q and 49U prohibit such discrimination on the ground of intellectual impairment; and sections 49ZH and 49ZL prohibit such discrimination on the ground of sexual preference. Under the circumstances, the proposed Australian Labor Party amendment is superfluous and the Government rejects it.


Question - That the amendment be agreed to - put.


The Committee divided.



Ayes, 20

Mrs Arena
Ms Burnswoods
Mr Dyer
Mr Egan
Mr Enderbury
Mrs Isaksen
Mr Johnson

Mr Jones
Mr Kaldis
Miss Kirkby
Mrs Kite
Mr Manson
Mr Obeid
Mr O'Grady

Mr Shaw
Mrs Symonds
Mr Vaughan
Mrs Walker
Tellers,
Dr Burgmann
Mr Macdonald

Page 3546

Noes, 20

Mr Bull
Mrs Chadwick
Mr Coleman
Miss Gardiner
Mr Gay
Dr Goldsmith
Mr Hannaford

Mr Jobling
Mr Moppett
Mrs Nile
Revd F. J. Nile
Dr Pezzutti
Mr Pickering
Mr Ryan

Mr Samios
Mrs Sham-Ho
Mr Rowland Smith
Mr Webster
Tellers,
Mrs Forsythe
Mr Mutch


The TEMPORARY CHAIRMAN (The Hon. Beryl Evans): Order! There being an equality of votes, I give my casting vote with the noes and declare the question to be have passed in the negative.

Amendment negatived.

The Hon. J. W. SHAW [10.52]: I move:

Page 177, clause 481. After subclause (7), insert:
(8) Nothing in this section:
(a) prevents an employer entering into a contract of employment that requires employees to be members of a specified industrial organisation of employees or taking steps to enforce such a contract; or
(b) affects the operation of a provision inserted in an award in accordance with section 480.

This amendment has the conservative virtue of preserving freedom to enter into contracts of employment, which may specify that members of the work force must be members of a particular trade union. It is designed to ensure that where the employer desires to regulate his or her industrial affairs by dealing with members of a specified trade union, such arrangements can be lawfully entered into.

Amendment negatived.

Division agreed to.

Division 8

The Hon. J. W. SHAW [10.52]: By leave of the Committee I move the following amendments in globo:

Page 189, clause 505. From subclause (1), omit "(other than a donation or other payment for political objects) of a relevant amount, and of all donations or other payments for political objects", insert instead "of a relevant amount".

Page 3547

Page 190, clause 505. From subclause (6), omit "other than a donation or other payment for political objects,".
Page 190, clause 506. Omit subclause (1), insert instead:
(1) An organisation must, in accordance with this Division, keep and maintain at its registered office a register of loans, grants and donations made by the organisation.
Maximum penalty: 50 penalty units.

These amendments are consequential upon the earlier amendments moved by the Opposition concerning political donations.

Amendments negatived.

Division agreed to.

Division 9

The Hon. J. W. SHAW [10.57]: I move:

Page 218. After clause 551, insert:
Exemption from ballot: organisations related to federal organisations
552. Nothing in this Division requires organisations that are involved in a proposed amalgamation to conduct a ballot of their members if the Commission certifies that:
(a) the committee of management of each of the organisations involved in the proposed amalgamation has voted in favour of the amalgamation; and
(b) each of the organisations involved in the amalgamation is substantially related to an organisation registered under the Industrial Relations Act 1988 of the Commonwealth (in this section collectively called "the related federal organisations"); and
(c) each of the related federal organisations has validly undertaken and had approved an amalgamation in accordance with the Industrial Relations Act 1988 of the Commonwealth and the amalgamated organisation formed under that amalgamation is substantially related to each of the organisations that is involved in the proposed amalgamation under this Division.

This amendment is designed to prevent the necessity for two sets of amalgamation ballots where the State branches of the relevant unions are certified by the commission to be substantially related to Federal branches that have already validly undertaken an amalgamation process under the Commonwealth legislation. It would be an untoward and unsatisfactory result if Federal organisations that have successfully completed an amalgamation process should then be faced with the

Page 3548
necessity of undertaking a second and subsequent ballot in relation to New South Wales counterpart registered unions. There is at least the theoretical possibility that a different result might ensue in New South Wales, leading obviously to the prospect of chaos in the internal administration of an interrelated Federal organisation and State-registered industrial union. The amendment reflects the view that where there has been an appropriate and valid ballot process under Federal law the commission should be able to say that that is sufficient to satisfy the requirements for related State-registered unions.

The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-President of the Executive Council) [11.1]: The Government believes that this amendment is flawed. It does not take into account the fact that the membership of a State-registered organisation and the related Federal organisation may not be identical, which could lead to members of the relevant State-registered organisation being disfranchised. That is a serious deficiency because it would lead to the approval of the amalgamation by the Industrial Registrar. Though the relevant committees of management may approve the amalgamation, it would be at the expense of disfranchising members who may not agree with the amalgamation. Further, the term "substantially related" is not defined as it is too vague. Therefore the Government strongly opposes the amendment.

Amendment negatived.

Division agreed to.

Part agreed to.

Part 4

Division 3

The Hon. J. W. SHAW [11.3]: I move:

Page 254, clause 646. After clause 646(2), insert:
(3) Despite subsection (2), the Labor Council of New South Wales is not to be incorporated under section 421. The regulations may make provision for the appointment of trustees and, for that purpose, may apply the provisions of sections 8-13 of the Trade Union Act 1881 (as in force immediately before its repeal and with any necessary modifications) to the Labor Council of New South Wales.

As to excluding the Labor Council from the general provisions of incorporation, the Labor Council is now registered pursuant to the Trade Union Act 1881. That Act requires organisations such as the Labor Council to vest property in trustees. Trustees are accountable to the Labor Council and also to outside interests. This system has been an appropriate and effective method of managing the Labor Council for a considerable number of years. The amendment proposes that that system be retained and that the appropriate provisions of the Trade Union Act 1881 be
Page 3549
incorporated into the regulations and applied to the Labor Council. We believe that the position of a State peak organisation representing employees can be distinguished from the position of an ordinary trade union because members of a State peak council are affiliated unions, not individual employees. We think it is justifiable to make special provision to this effect.

The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-President of the Executive Council) [11.6]: The Labor Council seeks to maintain the status quo so as not to be incorporated under the new Act. It would be the only organisation to remain unincorporated once the relevant provisions of the Act commence to operate fully. The Labor Council has not presented any reason why it should be given this anomalous status. If the Labor Council is exempted, why should not exemption be granted to other similar organisations, such as the Newcastle Trades Hall and the South Coast Labour Council? The fact is that the incorporation provisions of the bill are designed to avoid problems associated with the quasi corporate status of trade unions registered under the Trade Union Act 1881. The incorporation provisions ensure that organisations or independent persons be legally capable of suing and being sued. From a business viewpoint, incorporation under the new Act will provide a better basis for conducting business than the outdated provisions of the Trade Union Act 1881.

Why has the Labor Council sought so late to seek to avoid incorporation under the new Act? Mr Easson has been aware for some time of the requirements relating to incorporation. The Government believes it must be consistent in its approach. There are reasons why the amendment is unsatisfactory. It purports to retain the provisions of section 12 of the Trade Union Act 1881. That would enable the accounts of the Labor Council to be "audited by some fit and proper person or persons" to be appointed by the Labor Council. Qualifications are not mentioned. Under the bill the accounts of organisations have to be audited by a registered company auditor. Again, section 13 provides a general offence provision relating to fraud by officers of a trade union. This provision would be duplicitous with the more precise provisions of the bill dealing with fraud. That would be unsatisfactory. For these reasons the Government rejects the amendment.

Question - That the amendment be agreed to - put.

The Committee divided.



Ayes, 20

Mrs Arena
Dr Burgmann
Mr Dyer
Mr Egan
Mr Enderbury
Mr Johnson
Mr Jones

Mr Kaldis
Miss Kirkby
Mrs Kite
Mr Macdonald
Mr Manson
Mr Obeid
Mr O'Grady

Mr Shaw
Mrs Symonds
Mr Vaughan
Mrs Walker
Tellers,
Ms Burnswoods
Mrs Isaksen

Page 3550


Noes, 20

Mr Bull
Mrs Chadwick
Mr Coleman
Mrs Forsythe
Miss Gardiner
Mr Gay
Dr Goldsmith

Mr Hannaford
Mr Jobling
Mr Moppett
Mr Mutch
Mrs Nile
Revd F. J. Nile
Dr Pezzutti

Mr Pickering
Mr Samios
Mr Rowland Smith
Mr Webster
Tellers,
Mr Ryan
Mrs Sham-Ho

The TEMPORARY CHAIRMAN (The Hon. Beryl Evans): Order! The numbers being equal, I cast my vote with the noes and the question so passes in the negative.

Amendment negatived.

Division agreed to.

Part agreed to.

Chapter agreed to.

Chapter 6

Part 1

The Hon. J. W. SHAW [11.13]: I move:

Page 259, clause 663. Omit "motor lorry" wherever occurring, insert instead "motor vehicle".

This amendment is proposed by the Opposition following representations from Ms Kathy Robertson of the Courier and Taxi Truck Association. It is agreed to also by the New South Wales branch of the Transport Workers Union of Australia. It will remove a discriminatory inconsistency in the bill. The significant factor in determining whether an owner-driver should be covered by a contract determination is the type of work they perform and not the type of vehicle they operate.

Reverend the Hon. F. J. NILE [11.14]: The Call to Australia group does not support the amendment. However, many involved in this type of work are concerned about this clause. Perhaps that concern is unjustified. I understand the term "motor lorry" is an innovation although it is contained in the existing legislation. I seek an assurance from the Government that the clause will be closely looked at and whatever changes are necessary will be made in the future.

The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-President of the Executive Council) [11.15]: This amendment was prepared by the Opposition in another place on short notice. The Minister for
Page 3551
Industrial Relations has indicated that the Government will not be rushed into taking any action without fully considering the facts. All honourable members would appreciate the need for that. An undertaking has been given by the Minister to consult with industry groups which will be affected by an amendment of this nature so that the views of all the interested parties may be taken fully into account. In a recent letter in relation to this amendment, the Minister said:

I acknowledge receipt of a letter from you concerning the matter of amendment to legislation which is being sought by the Courier and Taxi Truck Association.
It is important when contemplating legislative change, to consider the views of all interested parties. I have already stated I will not be deciding this matter until all those views have been received and considered.
I should also inform you that if it is finally decided to propose an amendment, at this stage it will not be put to the Parliament before next year.

When the matter has been properly canvassed in this way, the Government will be in a position to consider an amendment if necessary. I should like to say by way of an aside that I am more than aware of the conscientious and capable work done by Kathy Robertson. I have absolutely no doubt that the Minister will continue to be pursued on this matter with some vigour. He will in an appropriate way, probably with some assistance from myself, consider the possibility of an amendment in the new year.

Amendment negatived.

Part agreed to.

Chapter agreed to.

Chapter 8

Part 1

The Hon. J. W. SHAW [11.20]: By leave of the Committee I move the following amendments in globo:

Page 289, clause 733 (1) (a) and (b). After "members of that organisation", wherever occurring, insert "(or persons who are eligible to become such members)".
Page 290, clause 733 (2). Omit the subclause.

The topic of the clauses to which the amendments are directed is that of right of entry of authorised officers and the right of such authorised officers to inspect wages records and other such books held by employers. Under the Industrial Arbitration Act 1940 trade union officers can be issued with authorisations issued by the Industrial Registrar, known as right of entry permits. The permit allows union
Page 3552
officials to enter workplaces at reasonable times for the purposes of interviewing existing members and or potential members. Such officials are also authorised by the permit to check the time-sheets and paysheets in relation to suspected breaches of the Act, awards and agreements. However, under the bill officials will not be allowed to enter the premises unless they already have members at the workplace. The legislation will preclude the union officer from entering the workplace where there are no members of the union in an effort to recruit such persons or persuade such persons that they should enrol in the union.

Under the bill officials will not have the right to enter premises where there are potential members for the purposes of recruitment or checking for suspected breaches of the Act or awards or agreements. If union members are employed at the workplace, the employer must be given seven days' notice of the union official's intention to check the books for the purposes of investigating any suspected breach of the Act or award. This seven-day notice proposal is quite ridiculous and excessive. It will give employers, that is, those employers who are minded to act in contravention of awards or statutes, the opportunity to rearrange their books so as to conform with the appearance of complying with the law. Moreover, the provisions of the bill do not recognise that trade unions are parties to the award which is being enforced by the process of inspection of books and unduly restricts the rights of officers of trade unions to participate in the enforcement or superintendent process.

Whether or not trade union members are involved, the union has a demonstrable interest in ensuring that the award is observed. The award enforcement section of the Department of Industrial Relations is under considerable pressure. It suffers from a lack of resources, and, if this bill is passed, it will be placed under excessive pressure, restricting the capacity and the right of trade unions to participate in the enforcement process. The amendment to clause 733 (1) (a) and (b) is really consequential to the matter I have put already. The second amendment is to remove the requirement to give seven days' notice of intention to inspect the time-sheets and paysheets of employers.

The Hon. Dr MEREDITH BURGMANN [11.24]: These clauses show the real underlying position of the Government. This is a union-busting bill and these clauses show it more clearly than any of the others. The restrictions on union officials so hampers them in their right to organise that it will make them virtually unable to do so. I mention the proposal that there be seven days' notice of the union official's intention to check the books. In the present Act there is wording along the lines that union officials have the right to check the books at the convenience of the two parties. If it does not suit the union or the employer, sometimes it turns out to be seven days. That part of the present Act has never caused any problems. A clause which says seven days' notice must be given is introduced for one reason only, that is, so that the crooked employers can cook the books in those seven days.

The Hon. JUDITH WALKER [11.25]: When the Minister gave his second reading speech in the other House he did not spend too much time on this present clause. One does not have to wrack one's brains too hard to understand why. My

Page 3553
colleague the Hon. J. W. Shaw stated on this amendment that he was sure - and the Minister might even agree - that the Department of Industrial Relations has been seriously understaffed with regard to inspectors who inspect the books of companies. A much stronger directorate is needed, and money has been withheld in that regard. At one stage the Minister held the view that the Opposition should be briefed by various members of the Department of Industrial Relations in an effort to explain the legislation more fully. Some time ago officers of his department addressed a seminar in the theatrette of this Parliament. Arising from that seminar it was clear to members of the Opposition that significant difficulties existed with departmental staffing, particularly in the area of award inquiries. Clear breaches had been made as to the payment of wages under the awards. The Minister in the other House would not deny that it has been a major problem.

It may well be that the Minister cannot obtain sufficient funds from the Greiner Government to be able to provide a better service. Within a few short minutes this bill will somehow pass through the House. The Minister and his Government, particularly the Minister in the other House, will find that more money is needed. I cannot see that it will be forthcoming. It certainly does not appear in any of the Budget Papers. Because of this particular piece of nonsense, right of entry to the offices of industrial organisations of employers is restricted to at least seven days' notice. Without going into too much rhetoric, one can imagine the difficulties employees will encounter in receiving their rightful pay if union organisers and secretaries are not allowed to enter the employer's place within seven days to correct these types of breaches. The Australian Workers Union has spent considerable money and effort over the years in retrieving members' money. It has sent me a considerable number of cases with which I shall not weary the Committee at this late stage of the industrial relations legislation debate. This debate has been ongoing for three years and has the propensity to overtake War and Peace.

I shall not weary the Chamber reading verbatim the list of complaints but I assure honourable members that in a number of areas workers under enterprise agreements in small enterprises will be seriously disadvantaged. Until now Australian Workers Union officials have been able to get prompt action. Hairdressers trading as Hair by Elle were served with a claim for substantial amounts - $1,849.61 for the senior and $1,663.75 for the apprentice. The union was advised by both members that they had been advised to withdraw all action against the company. The senior advised the union that no further action should be taken on her behalf and eventually admitted that some threats had been made against her and she finally took $1,269 as holiday pay. The apprentice decided to push on regardless. He felt that as he had right on his side he was entitled to be paid correctly for the work he performed. By this time both union members had found alternative employment. The matter finally was placed before the conciliation commission for determination. Days before the hearing the union member was physically assaulted by two persons who intimated to him that by pursuing the claim he was not helping his employer.

The Hon. E. P. Pickering: On a point of order. Whilst I find this a fascinating exposé at this last hour, I see no relevance of what the honourable
Page 3554
member is entertaining us with to the bill. Mr Chairman, I would ask the honourable member, through you, to come back to the bill.

The Hon. JUDITH WALKER: Mr Chairman, I do agree that we had come to an arrangement some time earlier that I would address all my remarks through the Chair and not the crossbenches or wherever and also that I would not deviate from the bill. I note that the Hon. Dr B. P. V. Pezzutti is not here, so he will not tell me that I am canvassing your ruling. I am clearly saying what has occurred. There is no doubt that amongst unions such as the Australian Workers Union a great deal of time, energy and money is expended in making sure that members are paid the correct moneys under the award prescribed by the commission. There is no question of that. How does the Minister tell us now -

The CHAIRMAN: Order! I ask the honourable member to address the point of order rather than continue her speech.

The Hon. JUDITH WALKER: I am sorry, Mr Chairman. I thought we had forgotten about the point of order. I was continuing with the debate. I will stick to the subject. The Opposition is making the point that clause 733, unless seven days' notice is given, makes it very difficult for a union official to enter the workplace. It is not a matter of trying to get what is rightly, properly and justly the member's correct salary; what will prevent certain employers from cooking the books? It is a fact of life that they do. The Government has been trying to tell us that this bill is not aimed against the union movement, but in the final part of the bill at clause 733 is a provision which is clearly an attack on the trade union movement and the way it operates. Why should we be precluded from operating as we always have? Why is the Government trying in the last gasp of the bill to keep the trade union movement and its officials - they have been granted entry by the Industrial Commission - from having access and requiring them to give seven days' notice? Why should they be prevented from organising the membership of unions? I would like to hear the Minister explain how this provision is not aimed against the union movement. What steps will the Government take to expand the Department of Industrial Relations, Employment, Training and Further Education, particularly the section containing inspectors who deal with adherence to awards? How much money has been made available for that purpose? Are any problems in the policing of awards by the department expected?

The Hon. J. R. JOHNSON [11.36]: In my speech at the second reading stage I said that this provision should be renamed the protect the crooks provision. It protects crooks.

The Hon. E. P. Pickering: It stops thugs.

The Hon. J. R. JOHNSON: It protects employers who underpay wages. Under the current Act the industrial registrar has the right - indeed in my view the duty - to withdraw rights of entrance when trade union officials do not play the game. That power is available under the Act but the Government will not use it. A gentleman in the President's gallery comes from a country town. He can tell the
Page 3555
Minister that when I was a trade union official I had a good name with employers and with employees.

The Hon. E. P. Pickering: There is no doubt about that.

The Hon. J. R. JOHNSON: The Minister says that there is no doubt about that. In country towns employers dob in other employers who are underpaying wages, who are not doing the right thing, who are trading illegally. The other employers saw the union as a protection for them as well as the employees. The local co-operative store may be following the rules and the people over the road may not be following the rules. The general storekeepers and the smaller storekeepers who were doing the right thing would say that there were employers who were breaking the law, and had been for years. In a town such as Bourke an employer would say that three or four other establishments were not paying the correct wages, not paying holiday pay, and point blank refused to give long service leave. I would tell the employer in that establishment that I was not there to catch him but to put him right where he might be wrong. I did not ask him to take my word; I asked him to contact his association - probably the Country Traders Association in those days or the Retail Traders Association.

The union official indicated that he would accept the adjudication because he had been through similar instances on numerous occasions and the employer bodies would agree with his interpretation. It was no good trying to put something over on the employer because that would be inviting him to check with the employer association. When the union official went to country towns such as Bourke - and he would visit Bourke only every six months - he would not know until he got there that employers were underpaying wages. The other employers would tell him. Under this provision the official would have to come back, placing a further encumbrance on the union to protect employees and the employer. Now the industrial inspectorate will have to do that. No industrial inspector knows an award as a union official does. The union official knows every provision of his or her award. The industrial inspector might be out inspecting boilers one minute, the next he is looking at rural accommodation in another area, and at the next place he is looking at a dry cleaning business where the shop assistants are not covered by the clothing trades awards. He might then go to a wool tops place.

Individual unionists going to establishments know every provision of the particular award and can point them out and get out quickly. In country towns on the periphery of the State, such as Tweed Heads, Albury-Wodonga or Balranald, employers will say "My accountant is at Southport" or "My accountant is at Albury-Wodonga". The employer would be told to get the wages book because the Act says the wages book must be kept on the premises where the work is executed. There is co-operation. The giving of seven days' notice does not present a major problem, but it is a problem. The major problem is with the crooks who are underpaying wages. They must be given seven days' notice. Is there anything similar in Australia where a person must be given seven days' notice? If the Pastures Protection Board representative goes on to a property, does he give the property-owner seven days' notice? Does the agricultural inspector give seven days' notice
Page 3556
if there is foot and mouth disease on a property? Does the stock inspector in the far North Coast have to give a grazier seven days' notice that he is coming to inspect stock for black leg, tick fever, red water or anything else? No, he does not. That is a nonsense, as this provision is a nonsense.

The Minister knows that of the approximate 300 trade unions registered under the Act in New South Wales only about two are offending. He had it in his hands to take the right of entry from those who were offending. Instead of doing that in regard to those two or three trade unions that were offending - and only some of their officials were offending - he wiped the board clean for every trade union official in the State. That is an injustice. The Minister is perpetrating an injustice on those people, particularly in country towns, who are being touched for their wages. When I was a trade union official I inspected wages books at the behest of members of the Liberal Party and members of the National Party. Now a trade union official cannot do that. The trade union official cannot go to a place where he or she does not have a member. That is bonkers. People say that sort of thing does not happen, that in the main employers are good people; and they are. But a considerable number of employers underpay wages. When I first became President of the Legislative Council, 13 years ago on the seventh of next month, one of the first things I discovered was that the Parliament of New South Wales was underpaying wages. That was rectified, but it did happen. Injustices will flow from that provision.

Reverend the Hon. F. J. NILE [11.46]: We support the provision as it is worded. It should be allowed to stand. It seems that Labor Party members cannot read or understand the bill. Clause 729 makes it clear that the powers of inspectors will allow them at any time to enter premises; no seven days' notice is required. They may question any employee in any industry as to the prices for piecework and the rate of wages paid to the employee, and as to the employee's hours of work.

The Hon. J. R. Johnson: There must be union members on the premises.

Reverend the Hon. F. J. NILE: No, this is a reference to inspectors in clause 729, which requires the employer "in any such industry, to produce at such time and place as the inspector may specify, for the inspector's examination any time-sheets or pay-sheets of employees in the industry". I challenge the Labor Party and the union movement, if they know of any crooked employers, to advise the inspectors immediately to inspect the books. That would get rid of these so-called crooked employers.

The Hon. Judith Walker: The honourable member must be joking. I know of employers -

Reverend the Hon. F. J. NILE: If the honourable member knows of them, she has an obligation. She should not sit on her hands and do nothing.

The Hon. Judith Walker: I have some listed in this document. Would the honourable member like to go through them all?

Page 3557

Reverend the Hon. F. J. NILE: The honourable member should hand them on to the Department of Industrial Relations, Employment, and Further Education. Undoubtedly clause 733 which is sought to be amended provides for an officer of any industrial organisation of employees authorised for the purpose to enter the premises. That puts to an end the lie spread by the Labor Council that no union official could enter premises without giving seven days' notice. It is seven days' notice to inspect the books and so on. That has caused unnecessary concern in the community. There may be need to employ more inspectors. I understand there are only 45 of them. They should conduct regular spot checks.

The Hon. J. R. Johnson: Now I shall tell honourable members the story of Goldilocks.

Reverend the Hon. F. J. NILE: The Hon. J. R. Johnson and the Labor Party seem to believe that union officials are in some special category. In the past we have seen that unions are above the law and their officials have powers almost like those of an arm of government. I represent people of this State who object to that union stand-over attitude. I have received reports that in some companies a union official has arrived filled with his own attitude of arrogance when the employer was not present. The official saw a girl clerk working on the wages sheets, ripped them out of her hand and took them from the premises to inspect them.

The Hon. Judith Walker: It is amazing that the honourable member never tells us who it is or where it was.

Reverend the Hon. F. J. NILE: Because I do not trust you. You might discriminate against these people. I do not trust the Labor Party or the trade union movement to guarantee that no action will be taken against these employers, workers or union members. I will give the honourable member their names and addresses -

The Hon. Judith Walker: On a point of order. Reverend the Hon. F. J. Nile is threatening me because of my attitude and what I might do to the people concerned were he to give such information. He is suggesting to the Committee that I would employ standover tactics. I ask the gentleman to withdraw that immediately.

Reverend the Hon. F. J. Nile: On the point of order. I am not suggesting that the honourable member will do anything of the sort. I said I cannot give the names publicly as I cannot guarantee that they will not be discriminated against.

The CHAIRMAN: Order! No point of order is involved.

Reverend the Hon. F. J. NILE: There is no doubt that most employers are co-operative. Perhaps if union officials did not use standover tactics they would have co-operation from employers to gain right of entry. The Government has made a commitment that within 12 months there will be a full review of the legislation by the full bench of the Industrial Commission. Unions will be able to present to the full bench for its consideration evidence of exploitation. The Industrial Relations Bill will be reviewed and I believe that is more than adequate. I personally object to any
Page 3558
non-government organisation such as a trade union or any other group adopting a policing type role in society.

The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-President of the Executive Council) [11.51]: It could be asserted that the Opposition seeks these two amendments in recognition of the fact that there are provisions within the bill designed to prevent what has been a history of abuse. I was pleased that the Hon. J. R. Johnson was honest enough to admit that that abuse has occurred, albeit minor abuse. The honourable member was prepared to identify the two unions that he suggested have been involved in that abuse. He then said that under the current legislation the commission had the power to withdraw the right of entry but was negligent in not doing so. In reality the commission has done so on a number of occasions. The commission has exercised its rights under the law. Despite the fact that the commission has so properly acted, that abuse still exists in one form or another.

Clearly union officials have used their power to enter premises that do not employ members of their union in order to abuse their power and harass employers. The Hon. J. R. Johnson would be the first person to accept that it has happened. The first amendment has no validity whatsoever. In my view there is simply no right, either morally or legally, for any union official to storm on to premises where no union members are employed. The second amendment deals with the requirement for a union to give seven days' notice. The point made by Reverend the Hon. F. J. Nile is entirely valid, that the official inspectorate is entitled to proceed to any employer's place of work to inspect the books without prior notice. Under ordinary circumstances the general community would see that as being a total safeguard but the union seeks the belts and braces approach. The Government does not object to union officials entering the workplace with due notice to inspect the books. However, the Hon. J. R. Johnson suggested in his own crude way that the seven-day notice requirement is there to protect crooks. He suggested that somehow or other the books would be cooked. It would seem to me that the first thing a trade union official would want to do when approaching a workplace to inspect the books is to ask employees what they were being paid. Surely they would look at the pay packet. How does one cook the pay packet?

The Hon. Dr Meredith Burgmann: Has the Minister not heard of fiddling the tax?

The Hon. E. P. PICKERING: The tax paid by an employee must be shown on the pay slip. The suggestion that the seven-day notice requirement is a rule to protect crooks who cook the books clearly does not stand logical scrutiny. What it does prevent is those trade union officials who were clearly identified by the Hon. J. R. Johnson - and I am not suggesting that this practice is widespread - from storming on to a workplace and acting in a way that can only be described as the way a thug would act. For those reasons the Government most strenously opposes these two amendments.

Question - That the amendments be agreed to - put.

Page 3559

The Committee divided.



Ayes, 20

Mrs Arena
Dr Burgmann
Ms Burnswoods
Mr Dyer
Mr Egan
Mrs Isaksen
Mr Jones

Mr Kaldis
Miss Kirkby
Mrs Kite
Mr Macdonald
Mr Manson
Mr Obeid
Mr O'Grady

Mr Shaw
Mrs Symonds
Mr Vaughan
Mrs Walker
Tellers,
Mr Enderbury
Mr Johnson


Noes, 20

Mrs Chadwick
Mr Coleman
Mrs Evans
Mrs Forsythe
Miss Gardiner
Dr Goldsmith
Mr Hannaford

Mr Moppett
Mr Mutch
Mrs Nile
Revd F. J. Nile
Dr Pezzutti
Mr Pickering
Mr Ryan

Mr Samios
Mrs Sham-Ho
Mr Rowland Smith
Mr Webster
Tellers,
Mr Bull
Mr Jobling

The CHAIRMAN: Order! The numbers being equal I cast my vote with the noes and the question is resolved in the negative.


Amendments negatived.


Part agreed to.


Chapter agreed to.


The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-President of the Executive Council) [12.3 a.m.]: I move:

That the Chairman do now leave the Chair and report the bill to the House without amendment.


Question put.


The Committee divided.

Page 3560
Ayes, 20

Mr Bull
Mrs Chadwick
Mr Coleman
Mrs Evans
Mrs Forsythe
Miss Gardiner
Dr Goldsmith

Mr Hannaford
Mr Jobling
Mr Moppett
Mr Mutch
Mrs Nile
Revd F. J. Nile
Mr Pickering

Mr Ryan
Mr Samios
Mrs Sham-Ho
Mr Webster
Tellers,
Dr Pezzutti
Mr Rowland Smith
Noes, 20

Mrs Arena
Ms Burnswoods
Mr Dyer
Mr Egan
Mr Enderbury
Mrs Isaksen
Mr Johnson

Mr Jones
Mr Kaldis
Miss Kirkby
Mrs Kite
Mr Manson
Mr Obeid
Mr O'Grady

Mr Shaw
Mrs Symonds
Mr Vaughan
Mrs Walker
Tellers,
Dr Burgmann
Mr Macdonald

The CHAIRMAN: Order! The numbers being equal I cast my vote with the ayes and the question passes in the affirmative.

Motion agreed to.

Bill reported from Committee without amendment.

Adoption of Report

The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-President of the Executive Council) [12.10 a.m.]: I move:

That the report be now adopted.

Question put.

The House divided.

Ayes, 21

Mrs Chadwick
Mr Coleman
Mrs Evans
Mrs Forsythe
Miss Gardiner
Mr Gay
Dr Goldsmith
Mr Hannaford

Mr Jobling
Mr Moppett
Mr Mutch
Mrs Nile
Revd F. J. Nile
Dr Pezzutti
Mr Pickering
Mr Ryan

Mr Samios
Mr Rowland Smith
Mr Webster

Tellers,
Mr Bull
Mrs Sham-Ho

Page 3561
Noes, 20

Mrs Arena
Ms Burnswoods
Mr Dyer
Mr Egan
Mr Enderbury
Mrs Isaksen
Mr Johnson

Mr Jones
Mr Kaldis
Miss Kirkby
Mrs Kite
Mr Manson
Mr Obeid
Mr O'Grady

Mr Shaw
Mrs Symonds
Mr Vaughan
Mrs Walker
Tellers,
Dr Burgmann
Mr Macdonald

Question so resolved in the affirmative.

Motion agreed to.

Report adopted.

Third Reading

The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-President of the Executive Council) [12.14 a.m.]: I move:

That this bill be now read a third time.

The Hon. J. W. SHAW [12.14 a.m.]: I move:

That the question be amended by the omission of all words after "That", with a view to inserting instead:
this House declines to give the Industrial Relations Bill a third reading, because it contains provisions which:
(a) abolish the present Industrial Commission and create a new and separate Industrial Commission and Industrial Court;
(b) establish an industrial relations system based on a distinction between interests and rights;
(c) propose that the maximum ordinary hours would be 40 hours per week averaged over a 52-week period;
(d) establish limited minimum conditions for enterprise agreements;
(e) permit the review of enterprise agreements by the Industrial Court only after the agreement is registered, and only upon application of a party to the agreement;
(f) abolish industrial agreements by preventing new industrial agreements being made, except for specific construction projects -

[Interruption from gallery]

Page 3562

The PRESIDENT: Order! There is far too much noise emanating from the gallery.

The Hon. J. W. SHAW: I continue:

(g) require an employer to approve a father's application for parental leave;
(h) require any union official to give 7 days' notice to inspect an employer's books;
(i) establish large and severe penalties against unions, union officials and individual employees;
(j) abolish award provisions dealing with part-time work;
(k) require workers to continue normal work during grievance procedures even if the dispute concerns occupational health and safety matters;
(l) duplicate sections 45D and 45E of the Trade Practices Act of the Commonwealth banning secondary boycotts;
(m) permit enterprise agreements to be negotiated without the involvement of unions;
(n) permit works committees to be established to negotiate enterprise agreements;
(o) abolish and prevent preference clauses being negotiated and inserted in awards and agreements; and
(p) prevent unions raising and distributing funds for political purposes.

This bill is the triumph of doctrine over practicality and common sense. It constitutes an attempt at extreme transformation of industrial relations as opposed to an evolutionary and considered piece of reform. It constitutes extremism as opposed to the incremental change that the parties to our industrial relations in New South Wales actually seek. The Committee of the Legislative Council has divided evenly on amendment after amendment, many of them eminently sensible. Those who have witnessed the debate objectively would acknowledge that the Government has been unable to present viable answers to many of those sensible and moderate attempts to trim the extreme features of the Greiner Government's industrial relations package. We have witnessed from Reverend the Hon. F. J. Nile and the Hon. Elaine Nile a complete disinclination to accept any amendment however moderate, well formulated, and properly defended before the Committee. In giving support to the Government's bill Call to Australia has supported legislation that will have the inevitable effect of oppressing people who are not in a proper position to defend themselves. The position of Call to Australia flies in the face of the considered views of sincere Christian groups in our community.

This bill lacks community support and it lacks support amongst those who really know about industrial relations. The Government has no mandate for the
Page 3563
legislation. The Government crept back after the last election, hardly mentioning the industrial relations issue and certainly not announcing to the people a number of critical features of the present package, for example, one being the idea that enterprise agreements should be registered without any scrutiny from any independent tribunal. This view is antithetical to notions of fairness at work and represents a wholesale assault upon the conditions of employment of working people in New South Wales. We have heard much debate about the role of industrial tribunals as standing between employers and trade unions. Members of this House know that this bill will severely limit the role and function of those independent arbiters in preserving industrial peace. Some mention has been made in the debate about a highly controversial case concerning the Shepparton Preserving Company, or SPC, in Victoria. The real lesson to be learned from the SPC dispute is that it was the Australian Industrial Relations Commission which was able to intervene and provide a fair, practical solution to that problem. On 28th October an article in the Australian Financial Review made the point that it was the Industrial Relations Commission which was asked by SPC to intervene in the dispute and on 3rd January the commission handed down a peace-making deal, saving SPC some $2 million in wages and overaward and extra payments in a 12-month agreement, but without undermining the basic award conditions of its factory workers.

How ludicrous it is for this Government to be undermining the role of industrial tribunals. A Labor government in this State would repeal this drastic and unsatisfactory piece of legislation. It would consult widely with employers and trade unions. A Labor government would present a package that would have widespread support in the community and that would have practical support from people concerned with productive enterprises in this State. We would have a rounded package, a balanced package which really would represent an acceptable alternative to the extremism of the Greiner industrial relations agenda. I am absolutely confident that we would have employer groups not expressing dismay at the Government's action but expressing support for a balanced and reasonable set of propositions. We will not put forward legislation to the Parliament that undermines basic conditions of employment but we will present legislation that has three themes - efficiency, productivity and fairness - and which will achieve some symmetry among those themes as distinct from the unbalanced and unfair package that this Chamber has been considering over the past days.

The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-President of the Executive Council) [12.23 a.m.], in reply: It would seem to me that a reading of the amendment, which lists a number of objections to the bill, is a perfect listing of good reasons why one would support the legislation. Indeed, I thank the Opposition for the compilation of what can only be described as speakers' notes for members of the Government who will use them from here on to explain to the community the positive attributes of the legislation. This third reading amendment is a desperate and final grasp for power by those puppets opposite whose strings are pulled by members of the powerful trade union movement in this State. The honourable member has in effect told us this evening that a future Labor
Page 3564
government - and I have no doubt there will be a future Labor government in this State some time, as the wheel can be expected to turn - will repeal the legislation. Let me remind the honourable member -

[Interruption]

The PRESIDENT: Order! I remind the Deputy Leader of the Opposition about my rulings on previous occasions. Honourable members will not be addressed by their Christian names.

The Hon. E. P. PICKERING: Let me remind members opposite that any repeal of this legislation would require an Act of Parliament to be passed by this House and I suspect that this House will not be disposed in future to repealing this legislation.

The Hon. B. H. Vaughan: May I say to the Hon. Ted Pickering: you will not be here.

The Hon. E. P. PICKERING: I certainly will not be here. Whenever there is a Labor government in this State I certainly will not be serving in this House. In moving this third reading of this most important bill, I would now like to take the opportunity to make some general observations. I suggest to honourable members opposite and to those members on the crossbenches from the Australian Democrats who have opposed this viable measure that it is likely that history will not judge their opposition kindly. I say this not out of any desire to continue the political debate on the measure, which is now basically over, but merely to point out to them that in opposing it so unreasonably they have exposed themselves to the community as a whole as people who are out of touch with the needs and aspirations of our nation. They have opposed this bill. They have simply overlooked the obvious facts that have made the passage of this carefully drafted bill so vital to the future of this State and, indeed, the nation. Those who oppose the bill have simply ignored the facts of the massive unemployment that is today spreading hardship and suffering throughout our nation. Today it is not uncommon for a single job to have hundreds of applicants. That is the nature of the work force today, yet we have members opposite and some crossbenchers who are determined to stick to the policies and practices of the past. Opposite we have those who are from the same group as the man who gave this nation the recession it had to have.

Australia is a fantastic country. We have everything any nation could possibly want - a great variety of climates; seemingly endless supplies of mineral and agricultural wealth; a highly educated multicultural society with the opportunity to educate the young and adults. In spite of this we somehow seem to have availed ourselves of just about every opportunity to get it wrong. At last in New South Wales we have finally got it right, and that has not been easy. I hope what will now happen will be this: the Labor Party and the Labor Council will not attempt to frustrate or obstruct the working of this legislation and employees and employers will
Page 3565
ensure that it is used in a sensible manner for the benefit of the nation. This is undoubtedly an historic moment. Honourable members opposite and the Australian Democrats may not realise it yet but I am sure history will support me. The passing of this legislation gives this State a unique opportunity to realise the enormous potential that has been denied it by the straitjacket that has restricted industrial laws in this State for many years. This legislation will allow - no, it will encourage - employers and employees to work together in a manner hitherto foreign to our industrial relations scene. If both sides seize this golden opportunity it will be the dawn of a new era in this State. If other States and the Commonwealth have the sense to follow our example, they will succeed in sharing the benefits that obviously will result from this most valuable legislation. For those reasons I oppose the amendment before the House and proudly commend the bill.

Reverend the Hon. F. J. NILE [12.29 a.m.]: On behalf of the Call to Australia group I oppose the amendment moved by the Hon. J. W. Shaw. Call to Australia is pleased -

The PRESIDENT: Order! I am reminded that, the Minister having spoken in reply, Reverend the Hon. F. J. Nile may speak to the motion only by leave. Is leave granted?

Leave not granted.

The PRESIDENT: Order! The Minister for Police and Emergency Services has moved that the bill be read a third time, to which the Hon. J. W. Shaw has moved an extensive amendment which I will not read. The question is, That the words proposed to be omitted stand part of the motion.


[In division]


The Hon. J. R. Johnson: On a point of order. Mr President, you indicated that the Minister had moved that the bill be read a third time.


The PRESIDENT: Order! Would you please stand.


The Hon. J. R. Johnson: Standing orders provide that I sit.


The PRESIDENT: Yes; proceed.


The Hon. J. R. Johnson: Mr President, you indicated that the Minister had moved that the bill be read a third time. When - six months' time, three months' time or now?


The Hon. E. P. Pickering: I said "now".

Page 3566
The Hon. J. R. Johnson: The President indicated that the Minister had moved that the bill be read a third time, and Hansard will show it.


The PRESIDENT: Order! I do not believe there is a point of order. If there was an error on my part, I apologise to the House. The motion of the Minister, to my recollection, was that the bill be now read a third time. I will put the motion in correct form. The Minister, for Police and Emergency Services moved that the bill be now read a third time, to which the Hon. J. W. Shaw moved an extensive amendment. The question is, That the words proposed to be omitted by the Hon. J. W. Shaw's amendment stand part of the motion.


Question - put.


The House divided.

Ayes, 21

Mr Bull
Mrs Chadwick
Mr Coleman
Mrs Evans
Miss Gardiner
Mr Gay
Mr Hannaford
Mr Jobling

Mr Moppett
Mr Mutch
Mrs Nile
Revd F. J. Nile
Dr Pezzutti
Mr Pickering
Mr Ryan
Mr Samios

Mrs Sham-Ho
Mr Rowland Smith
Mr Webster

Tellers,
Mrs Forsythe
Dr Goldsmith

Noes, 20

Dr Burgmann
Ms Burnswoods
Mr Dyer
Mr Egan
Mr Enderbury
Mrs Isaksen
Mr Johnson

Mr Jones
Mr Kaldis
Mrs Kite
Mr Macdonald
Mr Manson
Mr Obeid
Mr O'Grady

Mr Shaw
Mrs Symonds
Mr Vaughan
Mrs Walker
Tellers,
Mrs Arena
Miss Kirkby


Question so resolved in the affirmative.


Amendment negatived.


Question - That this bill be now read a third time - put.


The House divided.

Page 3567
Ayes, 21

Mr Bull
Mrs Chadwick
Mr Coleman
Mrs Evans
Mrs Forsythe
Miss Gardiner
Mr Gay
Dr Goldsmith

Mr Hannaford
Mr Jobling
Mr Moppett
Mrs Nile
Revd F. J. Nile
Dr Pezzutti
Mr Pickering
Mr Samios

Mrs Sham-Ho
Mr Rowland Smith
Mr Webster

Tellers,
Mr Mutch
Mr Ryan
Noes, 20

Mrs Arena
Dr Burgmann
Ms Burnswoods
Mr Dyer
Mr Egan
Mr Enderbury
Mrs Isaksen

Mr Johnson
Miss Kirkby
Mrs Kite
Mr Macdonald
Mr Manson
Mr Obeid
Mr O'Grady

Mr Shaw
Mrs Symonds
Mr Vaughan
Mrs Walker
Tellers,
Mr Jones
Mr Kaldis

Question so resolved in the affirmative.

Motion agreed to.

Bill read a third time.