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
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
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
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
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
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
- 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
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
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
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
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
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
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
'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
- 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
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
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,
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
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
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
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
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
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.
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
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
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.
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.
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
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
45. Media Release, Senator McLean, 17 April
46. The Age, 24 April 1987.
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
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.
ATTITUDES OF AUSTRALIAN DEMOCRAT VOTERS TO TRADE
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:
'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
'Do you think membership of trade unions should
be voluntary or compulsory?'
'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?'
|No should not
'Which line on the bottom of the card best describes
the job the Conciliation and Arbitration Commission
|Very Good Job
|Fairly Good Job
|Neither Good nor Bad
|Fairly Poor Job
|Very Poor Job
|Total Poor Job
'Do you think our standard of living would be lower,
the same, or higher if there were no trade unions?'
'Do you believe trade unions have too much power,
the right amount of power, or too little power?'
'Which one way would you prefer wages and conditions
of employment to be decided?'
|Employees & Employers
|Union & Employers
'Do you believe employers should or should not have
the right to take action in the Supreme Court against
a trade union?'
|No should not
'Are you, yourself, a member of a trade union?'
|Member of a trade union
|Not a Member