No Vacancies

With Particular Reference to the Democrats

Senator Rod Kemp

Industrial relations will continue as a central political issue for the foreseeable future. Senator Cook, the Minister for Industrial Relations, has already signalled the prospect of a new Bill which will entrench union power. It will achieve this goal by putting industrial relations in Australia beyond the reach of the civil courts.

The Australian Democrats currently hold the balance of power in the Senate. The Labor Party holds 32 out of 76 Senate seats. The Government therefore requires the support of the Australian Democrats to pass its legislation.

The Coalition has outlined a detailed industrial relations reform program which it sees as vital if Australia is to tackle its serious economic problems. The Liberal Party leadership has stated that a double dissolution will be held should the Senate fail to pass the industrial relations legislation of a Hewson Government after the next election.

In the first five years of the Labor Government the Australian Democrats joined with the Coalition to reject major legislation which would have helped entrench union power and privilege.

Following the retirement of Don Chipp as Leader of the Democrats in 1986, the leftward drift of the Party he founded has become more pronounced. This is particularly apparent in the area of industrial relations.

Don Chipp positioned the Democrats clearly in the centre on a number of issues. The industrial relations platform of the Democrats was an effective counter to accusations that his Party was too left wing.

The industrial relations policy was important to the Democrats in maximising their appeal to disaffected Liberal voters. It also helped broaden the Democrat constituency to business men and women.

The Democrats were able to tap into the strong antagonism the Australian community feels about the irresponsible exercise of trade union power without having to face the counter argument (as used to occur with the Liberals) that they were too close to big business. Senator McLean, Industrial Relations spokesperson for the Democrats, has decisively rejected the Chipp approach on industrial relations. The significance of these changes is not widely appreciated.

This new approach of Senator McLean, if it is accepted by the other seven Democrat Senators, could have a major impact not only on the future of industrial relations in Australia but on the future of the Australian Democrats.


The Chipp Approach

Before 1987 the Democrats were strong supporters of voluntary trade unionism1, enterprise agreements outside the centralised wage fixing system, the use of common law in industrial disputes and the banning of secondary boycotts. In recent years, the Democrats' commitment to each of these policies has significantly weakened. Other key elements of the industrial relations policies of the Democrats included strong support for secret ballots before strikes, industrial democracy and worker collectives.

Attacks on powerful sectional groups was often a central theme of Senator Chipp's major speeches. He regularly criticised the close ties between the trade union movement and the Labor Party.

In the 1980 policy speech, Senator Chipp argued:

    'We are not bound to the dogma of the left or the right. We're the only party totally free from the influence of powerful vested interests whether they be trade unions or big business.'

In the 1983 policy speech, he said:

    'The Labor Party and the trade union movement are by definition, inseparable. With these intractable vested interests, there's no way either of these parties can 'bring Australia together' ... would you feel contented to have that power transferred to Bob Hawke, knowing the extravagances of the trade union movement could be ruthlessly impacted on him?'2

Under Senator McLean the Democrats now are developing close links with the most powerful vested interest in Australia---the Australian Council of Trade Unions (ACTU).

Voluntary trade unionism has always been a central plank of the Democrats' industrial relations policy. A Morgan poll found that some 87 per cent of Democrat voters thought that membership of trade unions should be voluntary.3

Senator Mason in 1987 spelt out the Democrats' approach:

    '... if membership of a union is not compulsory the organisation has to make itself useful enough to attract membership. That is as it should be ...

    '... it is not the case that because a union is not a compulsory organisation people will not join it.'4

Sections 45D and 45E of the Trade Practices Act -the secondary boycott provisions---were supported by the Democrats (see Appendix A).

Section 45D was inserted into the Trade Practices Act in 1977 by Mr John Howard, then Minister for Business and Consumer Affairs, as part of wider amendments following the review of the Act by the Swanson Committee.

The Democrats joined with the Coalition to defeat the Government's Conciliation and Arbitration Bill (No.2) 1984 and Trade Practices Amendment Bill 1984. The purposes of these two bills were to:

  • repeal sections 45D and 45E of the Trade Practices Act,
  • give the Trade Practices Commission power to deal with secondary boycott disputes by conciliation instead of arbitration, and
  • prohibit resort to common law injunctive relief in such a dispute while the Commission was exercising its conciliation powers. Other common law rights were not to be affected.

Enterprise bargaining was the central theme in a private members' Bill introduced in 1986 by the Democrats' Industrial Relations spokesperson, Senator Siddons.5 He argued:

    'This Bill offers a practical alternative to centralised wage fixing. It puts in place a voluntary collective bargaining mechanism alongside the present conciliation framework. It gives a clear alternative to wage fixing while keeping in place the centralised wage fixing system.'

The civil courts would have a central role in this industrial relations system.

    'A collective agreement will be a civil contract between the parties. Parties will have recourse to the Federal Court to ensure compliance by other parties.'

    'This is the crux of this Bill that collective agreements should be enforceable at law.'6

The next major test of the Democrats' commitment to the secondary boycott provisions came early in 1987 when the Government introduced a number of industrial relations Bills based on recommendations of the Committee of Review into Australian Industrial Relations Law and Systems (Hancock Committee).

The Government sought to establish, among other things, a Labour Court. Jurisdiction over secondary boycotts would be transferred from the Federal Court to the Labour Court. The legislation would have prevented causes of action at common law being brought against trade unions. The Bills aroused great employer opposition.

With the 1987 election in the offing, the Government decided not to proceed and the Bills were never presented to the Senate. The Democrats, however, had indicated some sympathy with aspects of the Government's proposals.7

The Democrats did not accept that removing the jurisdiction over 45D and 45E to the Labour Court would weaken the secondary boycott provisions. Senator Haines argued:

    'There is no doubt that we support the essential principle...which is that there is a need to maintain the effectiveness of the secondary boycott provisions of the Trade Practices Act as a readily available remedy for abuses of trade union power.'8

The Democrats announced that they would have supported the compliance measures in this Bill.


The McLean Approach

Following the appointment of Senator McLean as industrial relations spokesperson in 1987, the Democrats' opposition to union power weakened considerably.

In 1988 the Hawke Government introduced a major Industrial Relations Bill to replace the Conciliation and Arbitration Act. One feature of the Bill was to promote union amalgamations. The Coalition was opposed to the Bill because it believed it would force smaller, often moderate unions to amalgamate with larger, often militant unions.

The Democrats generally supported the Government and voted against Opposition amendments. However, the Coalition supported the Democrats' amendment to the Bill to reduce registration threshold requirement to 1,000 from the Government's proposed 3,000.

The decisive break with the Democrats' previous approach to industrial relations came with the Right to Strike Bill introduced by Senator McLean in 1989. The airlines dispute and the Dollar Sweets case had led to arguments that Australian unions did not possess the right to strike. Senator McLean argued:

    'The possible legal implications of the recent decisions on the Mudginberri and Dollar Sweets and the airline pilots' disputes means that the issue of the right to strike must be resolved by Australia's industrial, legal and political leaders otherwise it shall become accepted, through precedent, that if one or more people go on strike then they can be sued under common law, for breach of contract.'9

The significance of the McLean Bill was that it gave immunity to unions from liability under sections 45D and 45E and eliminated an employer's right to bring an action at common law resulting from inducing breach of contract or conspiracy. In other words, it sought to eliminate the major means of redress that business had been able to use against the capricious exercise of power in relation to union strikes. As this protection applied only to organisations registered under the Commission, it further buttressed the power of established unions.

The quid pro quo was that strike action had to be endorsed by a secret ballot of employees which would be carried out by the Industrial Relations Commission (IRC). This clause was strongly opposed by trade unions.

In summary, Senator McLean wanted to trade the right of business to protect itself from militant union action by forcing trade union leaders to consult more effectively with their members. Once a strike had been initiated in line with the legislation, business proprietors -large and small---would not have the protection of common law and the Trade Practices Act. In his second reading speech Senator McLean argued:

    'Just as the use of the right to strike should be seen as a last resort so access to tort action should be limited to those disputes that are not ratified by the Industrial Relations Commission or are designed to cause physical harm or result in property damage.'

Senator McLean with his Right to Strike Bill was therefore seeking, among other things, to reverse the Chipp approach of 1984 when the Democrats stopped the Government from limiting causes of action of common law and removing 45D and 45E.

The McLean Bill totally rejected the philosophy expressed in the Collective Agreements (Corporation) Bill introduced by Senator Siddons.

Senator McLean's statements on the Dollar Sweets case contrasted dramatically with those of Senator Siddons. Senator McLean described those who upheld the Mudginberri and Dollar Sweets cases as 'the extreme right in industrial relations politics who need to update their precedents''.10

Senator Siddons had said that 'the [Dollar Sweets] dispute is a perfect example of a militant union trying to pick off small business by isolating it and applying great pressure. Dollar Sweets is to be commended for withstanding the pressure so far...''11

The McLean Bill was never debated in the Senate and lapsed from the notice paper following the 1990 election. The Bill was reintroduced in May 1990.

The Democrats' lack of concern about increasing trade union power was demonstrated when the Government introduced its Industrial Relations Bill of 1990 which sought to fulfil the ACTU policy of creating 'mega' unions. The Democrats supported the substance of the Government's Bill but not the detail and proposed an amendment to reduce the registration requirement from 20,000 to 10,000.

In adopting this approach to force union members into 'mega' unions Senator McLean had little regard to the attitudes of Australian Democrat voters; almost 70 per cent of whom believe that employees should be able to form new unions instead of joining existing unions if they are dissatisfied with their union's performance.12

In the earlier Bill dealing with amalgamations13 Senator McLean supported a minimum registration requirement of 1,000, arguing that the Government's figure of 3,000 was likely to lead to:

    '... an ideological family of unionists whereas a requirement for a minimum of 1,000 members is likely to be more specifically based and therefore to produce the type of union structure that is able to operate more functionally in the workplace.'14

Two years later Senator McLean had totally dropped this approach supporting smaller unions. His view that smaller unions were better attuned to workplace demands was replaced by his view that the rate of amalgamations needed to be increased. He argued that 10,000 was an appropriate compromise.

The 1990 Industrial Relations Bill also provided for union preference in employment. This was criticised by the Coalition for being in conflict with the Democrats' policy supporting voluntary unionism.

The voluntary unionism principles stated by Senator Mason have been significantly watered down by this support for union preference in employment. It is hard to reconcile union preference with the Democrats' policy which incorporates item 20 (2) in the UN Declaration of Human Rights; '... no-one may be compelled to belong to an association.'

The Democrats' support for union preference provided the trigger for the NSW election. The two upper house Democrats in NSW voted with a Christian Independent and the Labor Party to defeat the Industrial Arbitration (Voluntary Unionism) Amendment Bill (No. 2) in April 1991. The Bill was not radical; it allowed for closed shop agreements to exist if they were supported by 65 per cent of the workforce.

The Democrats rejected the Bill because of the absence of preference clauses.

    '... if the Minister were willing to have agreements of preference negotiated by management and unions, compulsory unionism would not be the result.' 15

However, the issue of voluntary unionism can cause splits in the Democrat ranks. In December 1990 the Government's Higher Education Funding Amendment Bill (No.1) sought to further entrench compulsory student unionism. Democrat Senators Lees and Kernot joined with the Coalition's attempt to defeat this section of the Bill. Senator Bell expressed some sympathy with voluntary unionism but voted with the Government.

The Australian Democrats are vigorous supporters of the centralised wage fixing system and have even criticised the trade unions for not showing enough commitment to the system.16

The SPC dispute of December 1990 highlighted the very restrictive approach the Democrats now have towards enterprise agreements, compared with their policy in 1985 when these agreements were being actively encouraged outside the centralised wage fixing system (Collective Agreements (Corporation) Bill Agreements Bill).

Senator McLean said:

    'Of course they have a right to negotiate about their own work circumstances, but they do not have the right to throw away the awards and conditions of people across this country because they will not go to the legitimate umpire who is in place by the law of the land.'17

Democrat voters (66 per cent) on the other hand strongly supported the SPC workers in their decision to take voluntary pay cuts.18 This is hardly surprising as some 54 per cent of Democrat voters believe that wages and conditions should be decided between employees and employers, compared with only 23 per cent who believe that wages and conditions should be determined between unions and employers.19

(See also Appendix B.)

It is interesting that Senator Chipp has strongly endorsed enterprise agreements.

    'Legal contracts are enforced in every other activity in our society and appropriate damages sought and won for any significant breaches of them. Why not in the area of industrial relations?'20

The new approach of the Australian Democrats to industrial relations under Senator McLean has helped forge closer links between the Democrats and the ACTU.


The ACTU/Democrat Link

On the 15 March 1991, Senator McLean paid a much publicised visit to the ACTU. Senator McLean said he could 'brief the executive on the Democrats' industrial relations policy and review legislation likely to come before Parliament in the next two sessions''.21

He indicated 'the appearance will cap off a strengthening of relations between the two, which began after the ACTU secretary, Mr Bill Kelty, and the president, Mr Martin Ferguson, took office.'22

Senator McLean has not made any statement about the nature of the discussions or any agreement reached with the ACTU.

Some 11 days later the Government announced its options for reforming the Industrial Relations Act. Newspaper reports indicated one option included strengthening the IRC's power to impose penalties for unauthorised industrial action while giving unions immunity from most other legal sanctions currently available to employers outside the conciliation and arbitration system.

Another proposal floated by Senator Cook would give unions immunity from all existing legal sanctions against industrial action both within the conciliation and arbitration system and outside the system---but only in cases where industrial action meets certain criteria such as having been approved by a secret ballot of union members.23 This proposal is similar to the McLean 'Right To Strike' Bill.

The industrial relations policies of the Australian Democrats under Senator McLean, with the exception of secret ballots before strikes, are now fully compatible with the ACTU's political agenda.

For the first time this year the Democrats were represented in the Australian delegation to the ILO. According to The Australian Financial Review:

    'The Australian Democrats will join the International Labour Organisation this year---at the invitation of the Federal Government.

    'The party will become a regular member of Australia's tripartite delegation to the annual conference of the world industrial relations body from June.

    'Its inclusion, initiated by the Minister for Industrial Relations, Senator Cook, is a formal acknowledgement of the pivotal role the Democrats now play in the increasingly divisive politics surrounding industrial relations.'24

On the 8 May 1991, Senator McLean challenged the Government 'to legislate for the Right to Strike at the earliest opportunity.' He said:

    'I have today taken this controversial issue of the Right to Strike and Sections 45D and 45E of the Trade Practices Act to our party room again and have very clear directions from my colleagues.

    'If the Government is not prepared to do so I will bring on a Private Member's Bill in the first week of the next session, which updates my Right to Strike Bill which I have had before the Senate for 12 months.

    'Australian Democrats believe there must be clear legislative entitlement to withdraw labour without legal liability. There must be absolute distinction in law between responsible and irresponsible industrial action.' 25


McLean's Five Reasons

Senator McLean has stated five main reasons for proposing a major shift in Australian Democrats' policy.

First, Senator McLean argues that 45D must be set in the contemporary situation rather than the environment in which it was framed in the 'eighties by the Fraser Government.

    'Its drafting was a fairly frantic action by the Fraser Government with the intention of emasculating the unions ... it projected the impression, and was built on the assumption, that all industrial action was irresponsible.'26

His statement has three errors:

  • Section 45D was not framed in the 'eighties: it was inserted on 3 May 1977;
  • the clause was the result of the considered recommendations of the Swanson Committee, not an 'invention' of the Fraser Government;
  • the assumption that the section was introduced with 'the intention of emasculating the unions' is incorrect. The Swanson Committee's recommendation was based on the belief that: '... no section of the community [italics added] should be entitled to be the judge in its own cause in matters directly aimed at interfering with the competitive process between firms.27

The Swanson Committee was concerned that under law existing at the time:

    'there remains some conduct (where employees of one employer place a ban on the dealings of that employer with another person) which falls outside the operation of the Trade Practices Act, the Conciliation and Arbitration Act and most State industrial legislation'.28

And in fact concluded that:

    'That some procedures for solving the matter should be available was something on which submissions of interested parties were virtually unanimous'. (emphasis added)29

Section 45E is not used often. It was inserted into the Act in 1980 to deal with an extension of secondary boycotts which allowed a company and a union to agree to refuse to supply a person or another company. As with 45D, a major aim of the clause was to provide protection to small, independent businessmen and women. The need for section 45E arose when the Transport Workers' Union combined with Amoco to cut off the petrol supplies to Leon Laidley, wholesale petrol distributor.30

The second reason put forward in December 1989 was that Right to Strike Bill was in response 'to the growing unease and confusion that is being felt within the Australian community following the recent common law decisions on the right to strike'.

No evidence to support Senator McLean's contention was indicated. There was, of course, considerable 'unease' (indeed outright opposition) among trade union leaders over the effectiveness of common law and the Trade Practices Act sections in tackling destructive union actions.

The community, judging by opinion polls, strongly support employer actions of the type taken under common law and the Trade Practices Act. For example, 89 per cent of people who identified themselves as Australian Democrat voters believed that employers should have the right to take action in the Supreme Court against a union using intimidatory tactics.31

Attitudes to trade union power by those who describe themselves as Australian Democrats also seem to contradict Senator McLean's industrial relations initiatives. A recent survey undertaken by the School of Social Sciences at the ANU, among other things, asked the question: 'Do you think that trade unions in this country have too much or too little power?' Only 4 per cent of Democrat voters thought that trade unions had too little power. By contrast, 96 per cent of Democrat voters felt that trade unions had either, 'the right amount of power' or 'too much power'.

It is worth noting that this poll was taken under the current industrial agreements when causes of action in common law and the use of 45D and 45E formed part of the industrial relations environment.

Some 70 per cent of Australian Democrat voters think that governments should introduce stricter laws to regulate trade unions.

In other words, Australian Democrat voters want stronger protection against radical unions not weaker protection of the type proposed by Senator McLean.

The third reason, stated by Senator McLean in a recent Bulletin article32 was that legislation had to recognise that industrial action can be responsible.

    'Legislation now had to acknowledge the fact that labour can be withdrawn by workers responsibly in Australia: There is a feeling now that industrial action can be responsible and because people taking part in it do behave responsibly, they should not be liable either under common law torts or section 45D ... It's been a big gun that has been held to the head of unionists, and anybody else who wants to take industrial action.'33

Again, no evidence was put forward by Senator McLean to sustain his argument that there is a new community mood towards strikers who, in Senator McLean's terms, 'behave responsibly'.

If common law torts or Section 45D had been a 'big gun' held at the head of unionists or anybody else who wants to take industrial action, it has not cowed the union bosses. Despite the protections afforded in common law, Australia still has a comparatively high rate of industrial disputes.

This has occurred in an environment when the trade unions are 'part and parcel of the Government' and causes of action at common law have been available to employers.

In its first ten years of operation, there were about 130 cases involving 45D and 45E. As Mr John Howard has pointed out, the legislation has been used as a last resort and not as a first resort by employers. 'Employers have not been trigger happy, keen to resort to court action at the slightest pretext.'34

Certainly the use of common law actions and the relevant sections of the Trade Practices Act have been important in helping to redress some of the imbalance between union and employer power. They have clearly not righted the balance because of the privileged position that unions have in our industrial relations system.

The secondary boycott legislation has provided a prompt and effective legal remedy to employers faced with unjustified industrial action involving secondary boycotts by trade unions.35

The most significant common law actions have been taken by comparatively small employers facing large radical unions such as in the Mudginberri and Dollar Sweets cases. Comparatively few unions have been affected by 45D and 45E actions:

    'Moreover, the main offenders have been repeated offenders, suggesting a pattern of behaviour which has little to do with a desire for genuine industrial co-operation, improved productivity, job enhancement or wealth generation.'36

Interestingly the Government strongly supported the use of civil action against the Pilots Federation (Ansett Transport Industries). It was possibly of even greater significance that the ACTU did not oppose the action.

The fourth reason stated by Senator McLean was that there was a moral imperative in certain circumstances for people to withdraw their labour:

    '... they can be morally obliged to do so because of circumstances. Now, in doing so, they must be free of an automatic liability under common law or torts because it happens to affect somebody else down line.'37

This is a remarkably callous statement. In Senator McLean's many statements on the 'right to strike' he gives no mention of the rights of men and women whose livelihood can be drastically affected by strikes. These include people in the company who are not on strike but cannot continue work because of a strike elsewhere in the enterprise. It includes people in other companies linked---as a supplier or consumer -to the company involved in the strike. Further, strikes can sometimes affect many thousands of people in the wider community who are dependent on a particular service.

Senator McLean is mis-stating how the law operates. Employees are free to withdraw their labour on proper notice without any 'automatic liability'. Senator McLean fails to point to the vital fact that no rank and file trade union member in Australia has been sued, jailed or fined for striking. Union leaders and their organisations, however, are liable to be fined if they induce people to break contracts.

As Mr Peter Costello, Shadow Minister for Corporate Law Reform and Consumer Affairs has pointed out:

    'Unions which induce employees to withdraw their labour (if they would not otherwise freely choose to do so) run the risk of civil liability. That liability is rarely incurred. The individual has freedom to strike. Others are not free to induce the individual to act in a way he or she would not voluntarily choose. Other citizens, businesses, employers, are subject to the same limitation. They may not induce others to breach contracts. The law protects freedom of contract and the right to have a contract performed.'38

The most important civil actions have been against radical trade unions. However, the number of cases in which unions have had to pay damages during the 'eighties can be numbered on one hand.

In 1990, a year in which Senator McLean argues Australians did not have the right to strike, more than 1000 strikes occurred. Very few have occasioned common law action. Even where it would be possible to bring unions before the civil courts, employers clearly prefer to negotiate not sue.

Certainly 45D and 45E and the common law have been useful in bringing about a resolution of some conflict. By weakening or abolishing these actions, Senator McLean will encourage more industrial disputes.

Don Chipp, in his autobiography, addressed the moral issue on the right to strike which has been recently raised by Senator McLean. He asked:

    'Does any employee have a right to strike, when that action has the most distressing impact on innocent members of the community? Secondly, should the right to strike be available to every member of the workforce?'39

Don Chipp argued an automatic right to strike should not be available to employees in essential industries. He argued that workers in essential industries should have agreements, including a substantial premium, for promising not to strike. If the worker should break this agreement, he should be liable for breaching his contract in the civil courts.40

The final reason stated by Senator McLean is what he calls the spreading incidence of action being taken under section 45D outside the trade union context. He argues in The Bulletin article:

    '... it has been used in cases involving fights between footballers and football administrators and in community rows over school closures. Just last week the 'Big Australian', BHP, backed down in a potentially explosive confrontation with the Australian branch of the world's most effective environmental group, Greenpeace.'

It is not correct to say that Section 45D has been used in football club disputes and school closures. There do not appear to be any such cases. There was a case relating to football clubs, taken under section 46 of the Trade Practices Act. It had nothing to do with the matters that Senator McLean is concerned about.

In the BHP case, the action under 45D related to the threats to life and property resulting from the tactics adopted by a Greenpeace boat. Interestingly, this type of action would still be available under the McLean Right ta Strike Bill. BHP did not proceed with the action. The company argued that:

    '...Greenpeace has a right to highlight environmental concerns but it has no right to endanger lives and damage property.'41

A great advantage of common law and secondary boycott actions is that they take place in the civil courts. Unlike the IRC and its predecessor, the Conciliation and Arbitration Commission, unions and governments have shown a greater respect for the actions and rulings of 'real' courts.


Problems of the Labour Court

There is a real fear that a Labour Court would simply mirror the problem employers have with the IRC.

The recent attack by the Hawke Government and the ACTU on the IRC following its decision on the national wage case demonstrates once again how the Labor Party and the union movement treat adverse decisions from industrial relations tribunals and the pressures they are prepared to exert in an attempt to overturn a ruling.42

A Deputy President of the IRC, Mr Michael Keogh, argued that the Hawke Government was failing to uphold the due processes of the law in its campaign against the IRC's national wage decision.

    'That rejection has been given notwithstanding the Commonwealth Government's acknowledgement in the national wage case proceedings that the Commission was required, under the Australian Industrial Relations Act 1988, to determine the case having regard to its statutory responsibilities and on the merits of the submissions of all parties to the proceedings.'

    'It is given notwithstanding the Commonwealth Government's responsibility to uphold the due processes provided under the legislation of the Commonwealth Parliament.'43

An article in The Australian Financial Review indicated that there was a strong view within the IRC that the Hawke Government's direct involvement in undermining the national wage decision is the most serious assault on the tribunal's independence since the Hughes Government's confrontation with the then Arbitration Commission in the early 1920s.44

Surprisingly Senator McLean, who had initially welcomed the IRC national wage decision praising the tribunal's independence45, did not make any subsequent statement criticising the assault by the Government and the ACTU on the tribunal's independence.

The attitude of the Government to the IRC indicates that it is expected to adhere to government policy of the day. In other words, it is unwilling to accept the judicial independence in the area of industrial law.

There is every reason to think that a Labour Court would be subject to the same pressures.

Senator McLean's Right to Strike Bill offers no practical alternative to the secondary boycott provisions, and would render them virtually unusable. A retired Federal Court judge, Sir Reginald Smithers, has strongly endorsed these sections of the Act:

    'Abolishing the secondary boycott provisions of the Trade Practices Act would result in most unpleasant situations in the industrial relations system. To engage in a secondary boycott is to inject a pernicious element into industrial affairs. A union which has no quarrel with a particular employer might threaten that employer to exert pressure on a target employer or 'we will deal with you and you will suffer'. It is that aspect that bothers me .'46

Senator McLean's industrial relations policies are not only a reversal of the traditional approach taken by the Australian Democrats: they also do not seem to be supported by voters who identify themselves as Australian Democrat supporters.

There appears to be no community demand for the radical changes proposed by Senator McLean which would give further privileges to trade unions.

Senator McLean's policies, if he can carry the support of his seven Democrat colleagues in the Senate, will enable the ACTU Executive to achieve one of its major industrial relations objectives---the institution of a Labour Court and the abolition of common law actions against trade unions and the secondary boycott provisions in the Trade Practices Act.

This development has wider implications for the future of the Democrats. Senator McLean is effectively removing his party's major link with the so-called middle ground making it very difficult for the Democrats to portray themselves as a centre party.

His willingness to accommodate ACTU demands certainly will make it impossible for the Democrats to claim to be a 'conscience' party.



References:

    1. See also page 3. However, the Democrats have always supported that a 'service fee' be paid to trade unions or a charity to avoid so-called 'free loading'.

    2. Policy Speech, 1983.

    3. Roy Morgan Research Centre, September 1989.

    4. Senate, Hansard. 18 March 1987, pp.895-96.

    5. Collective Agreements (Corporation) Bill 1986.

    6. Senate, Hansard, 26 November 1986, p.2738 (Senator Siddons).

    7. See in particular Senate, Hansard, 27 May 1987, p.3004 (Senator Mason's speech).

    8. Senate, Hansard, 4 May 1987, p.2228.

    9. Senate, Hansard, 14 December 1989, p.4504.

    10. Senate, Hansard, 19 October 1988, p.1590.

    11. Senate, Hansard, 11 September 1985, p.269.

    12. The Roy Morgan Research Centre, 8 No~ember 1989.

    13. Supta, p.6.

    14. Senate, Hansard, 29 September 1988, p.1083 (Senator McLean).

    15. Legislative Council (NSW), Hansard Proof, 10 April 1991, p.38 (Elizabeth Kirkby).

    16. Press Release, Janet Powell, 24 August 1990.

    17. Senate, Hansard, 18 December 1990, p.5869.

    18. Press Release, Roy Morgan Research Centre, 16 December 1990.

    19. The Roy Morgan Research Centre, 8 November 1989.

    20. The Sunday Telegraph, 8 July 1990.

    21. The Australian, March 4 1991.

    22. Ibid.

    23. The Financial Review, 25 March 1991.

    24. 11 April 1991.

    25. Press Release, Senator McLean, 8 May 1991.

    26. The Bulletin, May 7 1991.

    27. Trade Practices Act Review Committee (the Swanson Committee) 1976, paragraph 10.16.

    28. Ibid, paragraphs 10.13-10.14.

    29. Ibid, paragraph 10.19

    30. Howard's Law---The Value of Secondary Boycott Legislation, 1977-1987, p.1.

    31. The Roy Morgan Research Centre, 8 November 1989.

    32. The Bulletin, 7 May 1991.

    33. Ibid, p.29.

    34. Howard's Law---The Value of Secondary Boycott Legislation. 1977-1987, p.2

    35. Ibid, p.5.

    36. Ibid.

    37. The Bulletin, 7 May 1991.

    38. The Age, 5 April 1991

    39. Larkin, John (ed), CHIPP, Methuen Haynes, South Yarra 1987, p.160.

    40. Ibid, p.160.

    41. Press Release, BHP Petroleum Division, 26 April 1991.

    42. See also Victorian Bar Council's statement on the Government's attack on the IRC, Sun-Herald, May 18 1991.

    43. The Australian Financial Review, 14 June 1991.

    44. Ibid.

    45. Media Release, Senator McLean, 17 April 1991.

    46. The Age, 24 April 1987.


    APPENDIX A

    SECONDARY BOYCOTTS

    A secondary boycott occurs when persons (usually combinations of employees and/or trade unions), not employed by a target company, act in concert with a purpose to hinder or prevent the acquisition of goods or services from, or the supply of goods to, the target company. The purpose of the action taken must be to cause loss or damage, although this not need be the dominant purpose. Frequently, the target company is an innocent party in a secondary boycott which forms part of a wider dispute.

    In 1980, S45(E) was inserted into the Act to deal with an extension of secondary boycotts whereby a company and a union could agree to refuse to supply a person or another company---the boycott target---normally supplied by that company.

    Extract from Howard's Law, The Value of John Howard's Secondary Boycott Legislation 1977-1987, p.1.


    APPENDIX B

    ATTITUDES OF AUSTRALIAN DEMOCRAT VOTERS TO TRADE UNIONS

    A Morgan Poll on community attitudes to trade unions was conducted in September 1989. The results for respondents who identified themselves as Australian Democrat voters compared with the results for the total survey overall are as follows:

    Questions:

    'Looking back over the history of trade unions in Australia do you think the unions have been a good thing for Australia or not?'

    Attitudes of AD voters Total
    Australia % %
    Good thing 72 67
    Bad thing 18 24
    No Opinion 10 9

    'Do you think membership of trade unions should be voluntary or compulsory?'

    Australia % %
    Voluntary 87 87
    Compulsory 12 11
    Undecided 1 2

    'It's been suggested that if employees are dissatisfied with their union they should be able to form new unions, or associations, instead of joining existing unions. Do you believe employees should or should not be able to form new unions or associations?'

    Australia % %
    Yes should 69 62
    No should not 27 31
    Can't say 4 7

    'Which line on the bottom of the card best describes the job the Conciliation and Arbitration Commission does?'

    Australia % %
    Very Good Job 4 4
    Fairly Good Job 52 49
    Total Good 56 53
    Neither Good nor Bad 27 24
    Fairly Poor Job 12 14
    Very Poor Job 4 4
    Total Poor Job 16 18
    Can't Say 1 5

    'Do you think our standard of living would be lower, the same, or higher if there were no trade unions?'

    Australia % %
    Lower 72 58
    Same 19 20
    Higher 4 12
    Can't say 5 10

    'Do you believe trade unions have too much power, the right amount of power, or too little power?'

    Australia % %
    Too Much 61 64
    Right Amount 23 25
    Too Little 5 4
    Depends 9 4
    Can't say 2 3

    'Which one way would you prefer wages and conditions of employment to be decided?'

    Australia % %
    Employees & Employers 54 54
    Arbitration Commission 21 20
    Union & Employers 23 23
    Can't say 2 3

    'Do you believe employers should or should not have the right to take action in the Supreme Court against a trade union?'

    Australia % %
    Yes should 89 85
    No should not 4 7
    Can't Say 7 8

    'Are you, yourself, a member of a trade union?'

    Australia % %
    Member of a trade union 34 26
    Not a Member 66 74


Why HR Nicholls?

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