1st Parliament · 2nd Session
Mr. Speaker took the chair at 2.30 p.m., and read prayers.
Sir PHILIP FYSH presented a petition from 1,750 electors’ of Tasmania, prayingthe House to pass into law the Bonuses for Manufactures Bill.
Mr. CHANTER presented a similar petition ‘ from certain residents of Kew South Wales.
Mr. WATSON presented a petition from the President, Secretary, and Executive Council of the Sydney Trades and Labour Council, praying the House to amend theConciliation and Arbitration Bill so that it shall apply equally to all vessels engaged in the Australian coastal trade, whether Australian, oversea, or foreign.
Mr. PAGE presented a similar petition from the Mercantile Marine Officers’ Association of Australasia.
Mr. WATKINS presented a similar petition from the Masters’ and Engineers’ Association of New South Wales.
Mr. KNOX presented a petition from the President, Vice-presidents, and executive officers of the Victorian Employers’ Federation, praying the House not to pass the Conciliation and Arbitration Bill.
Petitions received and read.
– I., desire to make a personal explanation. I was not in the House when the division was taken on the question of the New South Wales Federal electorates. I wired to the Government whip, stating that I was against the proposed division, and asking him to get me a pair. I wish to say that had I been here I should have voted with the Government.
– I desire to ask the Treasurer, ‘ without notice, whether he observed in the Argus of 22nd August, the following telegram : -
Vouchers for £1,800 were rendered to the Federal Government some timo ago in* connexion with the increased expenditure incurred by the Police Department in the collection of Federal rolls, and a request waa made for payment. Cp to the present time the Federal Government has done nothing in the matter.
I should like to know how it is that the Government are not paying for/ services rendered.
– I had no. knowledge of the matter, which does not come under the cognisance of my Department, but under that of tho Minister for Home Affairs. I suggest that the question lie placed on the notice-paper for tomorrow, in order to afford an opportunity -to -obtain the desired information.
– Will the Treasurer at the same time inform the House whether similar charges have been paid in the other States for services rendered by the Police in tho collection of the rolls 1
– I desire to ask tho Minister for Home Affairs, without notice, whether he has received a report made by Mr. Oliver, who was appointed by thu New South Wales Government a Commissioner to inquire into the question of the proposed Federal capital sites, and, if so, whether it will be placed on the table and every honorable member supplied with a copy. air JOHN FORREST.- - I shall be very glad to place a copy of the report on the table - in a few minutes, I hope.
– I desire to ask the Minister representing the Minister for Defence, whether he has received any information respecting the payment of the capitation allowance to officers of the partially-paid forces in New South Wales. I asked a similar question a fortnight ago, but have heard nothing since about the matter.
– T have no information here, but I shall be glad to obtain it for the honorable member. Some inquiries have been made, but I do not think that the payment has reference to a capitation grant. It refers, I believe, to the clothing supplies.
– No ; the officers are allowed £% per annum, which they have not received.
– The honorable member for Newcastle could not give me the full particulars himself as to the information he desired.
– I did give the information.
– If the honorable member will give full particulars I may be able to answer his question at once.
– When I asked the question a fortnight ago, I distinctly stated that the usual allowance of £2 per annum had not been received by the officers of the partially-paid forces in New South Wales.
– Is that allowance for the clothing t
– No ; the old regulation in force in New South Wales provides that the rank and Hie shall receive an allowance in the form of clothing, but that the officers are entitled to a distinct payment of £2 per annum, which they have not yet received.
– It is extraordinary that complaints so frequently reach honorable members, though those officers concerned make no representations to their superiors. If these officers complained to those under whom they serve, they would, I think, very quickly get what they want.
– The trouble is- that they might get what they do not want.
Sir JOHN FORREST laid upon the table the following papers : -
Federal Capital - A short review of the contents of the report of the Commonwealth Commissioners on sites for the seat of government of the Commonwealth (with annexures), by Alexander Oliver, State Commissioner, to inquire into and inspect sites for the seat’ of government of the Commonwealth.
Electoral Act 1902-
Report of the Commissioner (Mr. E. A. Counsel) appointed to distribute the State of Tasmania into divisions, together with a map showing the name and boundaries of each proposed division.
Report of the Commissioner (Mr. H. F. Johnston) appointed to distribute the State of Western Australia into divisions, together with maps showing the name and boundaries of each proposed division.
The Clerk laid on the table the following paper : -
Tasmanian Defence Forces, position of - -Return to an order of.the House, dated 21st August.
Bill read a third time.
Debate resumed from 21st August (vide page 4059), on motion by Mr. Deakin -
That the Bill be now read a second time.
– Honorable members may be congratulated on the tone in which this debate has been conducted, both by those who -support the measure and those who are opposed to it. It will be generally conceded that the debate has, up to the present, been conducted on a very high plane, in every way worthy of the great importance of the measure. ‘ However we may regard this proposal - whether we view it with favour or disfavour, or whether we believe that it will be productive of good or evil - we must all admit that the measure is of’ the first importance, and fraught with farreaching results. “ There is no doubt that the evils against which the measure is directed constitutes one of the most serious blots on our boasted civilization. Byron makes one of his heroes say -
Tis true that, like yon bird of prey, With havoc have I marked my way.
In like manner it may be fairly said of thehistory of industrial warfare that it has left a long train of heart-burning, misery, and of ruin and disaster in its wake. When weconsider the magnitude of the interests that are at stake and the serious consequences to the community of industrial strikes, it seems marvellous that the principal parties - the employers and the employes - havenot devised a more rational and equitable, method of settling them than the barbarousmethod of brute force and stolid endurance. Seeing, however, that they have not devised any other means of settlement, I cannot agreewith those who say that Parliament has no right to interfere. If strikes affected only the employers and the employes, therewould be a great deal of force in that contention ; but when we consider that thepublic constitute the battle-field on which these struggles are fought out - when weconsider the great loss which they involveto the community, which is compelled tosupport quite an army of police to keep’ the peace - it cannot be denied that Parliament has a perfect right to step in and settle the questions at issue, provided that it believes that it can do sohonestly, and in a satisfactory manner. I admit, however, the delicate nature of the question with which we are dealing,, and that it is fraught with serious danger. I wish I could view this measure in the samehopeful manner as do the Attorney-General and other whole-hearted supporters of theBill.
– I pointed out the dangersMr. A. McLEAN.’ - But the AttorneyGeneral treated them very lightly. Serious, obstacles will have to be overcome before we can hope to confer a fraction of the benefit that some honorable members seem toanticipate from the operation of this Bill. One of the first conditions of success for legislation of this kind is that the two principal parties to trade disputes should be, as far as possible, brought into line. If it isimpossible to induce them to agree we should at least endeavour to remove any legitimate objections that may be urged by either side. So far as I can ascertain, theworkers solidly support the measure, aud it is distinctly to their credit that they should be willing to abandon any powers of coercion that they may possess, and submit their case to any impartial tribunal that Parliament may appoint. The workers of Australia are entitled’ to all the more praise in this connexion in view of the fact that the workers of Great Britain and America, those great hives of industrial enterprise, are opposed to any interference by Parliament. Unfortunately the employers are almost unanimously opposed to the Bill. In dealing with this matter in a fair and equitable spirit, we must take fully into account the representations of both sides. Many employers take up the ground that Parliament has no right to interfere, and that they should be allowed to settle their disputes in their own way. I have no sympathy with that view, but I conceive that more weight is to be attached to the opposition directed to the duplication of industrial legislation by the Commonwealth and the States.
– That would not affect Victoria, because that State has no legislation of this kind.
– Victoria has legislation relating to factories and shops, which to a large extent answers the same purpose.
– No, it is totally different.
– It is in that direction that I anticipate difficulty, because Commonwealth and State legislation upon the same subject will be running side by side, and it is our duty to endeavour to remove the objection. There ,are other reasons why legislation relating to the settlement of industrial disputes should be dealt with by one body. Upon this point I differ from the great body of the employers, who believe that it should be left to the State, and the State alone.
– The Employers’ Federation say that they do not want any legislation of this kind.
– My opinion is that the Commonwealth alone should deal with industrial legislation, and it seems to me that the reasons are obvious. The power to legislate upon industrial matters should go hand in hand with the control of the Customs. Uniform industrial legislation is the natural and necessary corollary of a uniform Tariff. “What is the use of equalizing the conditions of trade between the different States by means of a uniform Tariff, if we allow them to be made unequal oy conflicting industrial legislation ?
– An amendment of the Constitution would be required to enable the idea of the honorable member to be carried out.
– I do not think so. Suppose that, by reason of industrial legislation, the cost of production in any State were increased by 5 per cent. That would be equivalent to the imposition of an excise duty of 5 per cent, upon the whole of the producers of that Stats, or to a 5 per cent, differential duty against that State and in favour of the other States. That would be a most undesirable condition of affairs, lt might handicap the production of one State to the extent of rendering it unprofitable in competition with other States in which the industrial conditions were entirely different. I suggest that when the Bill has been moulded into the best possible form, its operation should be suspended for a reasonable time, until, say, the 1st of January next, and that during the intervening period the States Governments should be consulted with a view to bringing them into line. If we handicap or hamper production, we must injure the worker as well as the em plover, and therefore there can be no valid objection on the part of the States to fall into line with the Commonwealth, and to enact uniform laws governing industrial conditions.
– .Does the honorable member think that the Queensland Government would agree to any arrangement of that kind ?
– Their constituents might compel them to agree. I am aware that correspondence has already passed on that point, and that the majority of the Premiers, if not all of them, have expressed themselves as opposed to action such as I suggest. But the Premiers did not then imagine that the Commonwealth Government would proceed with legislation of this character, whilst similar legislation existed in the different States. They would occupy a very different position if there we’re actually a law upon the Statute-book of the Commonwealth which would become operative within a reasonable time. In such a contingency, I believe that in the interests of the people they would fall into line with the Commonwealth Government, and that some amicable arrangement would be made, by means of which a uniform system of industrial legislation would prevail throughout the length and breadth of Australia.
– Would there be uniform wages under that uniform law t
– My honorable friend must see that there would not necessarily be uniform wages, because the conditions of production in one State may differ entirely from those of another. At the same time they would all be subject to a common tribunal, and consequently we should be much more likely to obtain a proper regulation of the conditions of employment iu the different States. Of course uniform wages under all conditions would be out of the question. -For example, the cost of living in one State might be 20. 30, or even 50 per cent, greater than in another. All these matters would require to be taken into consideration. For the purpose of so equalizing trade as to comply with the provisions of a uniform Tariff, I think that a uniform industrial law is absolutely necessary. To some extent I believe that this question was overlooked by the Convention, because we know that the Constitution provides for the establishment of an Inter-State Commission for the purpose of regulating trade. It will be the function of that Commission to deal with the very few anomalies which exist in our railway freights, all of which are under Government control, and should not prove difficult of settlement. But this is a far larger and very much more complicated question. That the conditions of trade shall be made uniform, seems to me to be much more important than are any of the functions to be discharged by the Inter-State Commission.
– Seven out of eight’ members of the Convention were of opinion that factory legislation should be left to the States.
– I think that my. honorable and learned friend will see the force of my contention.
– At the same time the matter was not overlooked.
– I think that the passing of this Bill would prove a lever by means of which that uniformity could be attained, because both employers and employes in the different States would bring pressure to bear upon their respective Governments, which could not well be resisted. The next point to which i desire to direct attention is the constitution of the Court. That is the most important question which we have to consider. It appears to me that the whole future success of the Bill must depend largely upon the constitution of the Court. In dealing with this matter we should not overlook the grave problems which that body will be called upon to solve. The functions of a Supreme Court Judge are easy compared with those which will devolve upon the members of the Arbitration Court. The Supreme Court Judges have to administer a written law which is before them, and it is their duty to interpret that law just as they find it. In the case of the Arbitration Court, however, its members will have no law or facts to guide them in their decisions. Their awards must be founded upon surmise. In this connexion I was sorry to notice that many of the ablest honorable members of this Chamber addressed themselves to the question as if it were one which could be settled by absolute proof. Indeed, the other evening the honorable and learned member for Indi, whose forensic knowledge we all admit and whose ability we all admire, interjected whilst the honorable member for Wentworth was speaking - “ Do you think that the Court would give an award without proof V Now, that is precisely what the Court must do. Let honorable members reflect upon the problems which this tribunal will be called upon to solve. It will not deal with matters of fact in connexion with which proof can be submitted, but it must settle the conditions of trade for the next five years. Now, I hold that it is as impossible to prove what the conditions of trade »vill be during the next five years as it is to determine what will be the weather conditions. No doubt the Court can obtain the opinions of experts, and those opinions may be fortified to some extent by facts relating to past conditions of trade. But trade and commerce are affected by a hundred and one contingencies, and, therefore, the questions with which this Court will be required to deal are surrounded by the very greatest difficulty.
Mi-. G. B. Edwards. - The Court can vary its judgments in twelve months’ time.
– But in the meantime the consequences may be very serious. I thoroughly agree with the principle underlying the proposal relating to the constitution of the Court. That principle is that an expert should be appointed upon each side, and that there should be a thoroughly impartial umpire as President. It appears to me that that is the best tribunal which it is possible to obtain. At the same time, this Bill scarcely gives effect to that principle. I hold that it is impossible for any single individual to be an expert in every branch of industry. He may be thoroughly conversant with all the conditions relating to a particular industry or to one or two industries, but it is quite impossible that his knowledge and experience can extend to all. I have given this matter very careful consideration, and it appears to me that the best course we can adopt is to appoint a thoroughly impartial and unbiased Judge as President of this Court. Personally, I believe that it would be better not to make any permanent appointments to the other two positions, but to obtain the services of an expert upon either side as occasion arose.
– We have power to do that as well.
– It is quite evident that the authors of the Bill have considered this matter. But why cumber the proposed tribunal with two superfluous experts? I do not think we can improve upon the method of arbitration which has been in force and has worked satisfactorily for centuries past, and which provides for the appointment of a thoroughly qualified expert upon each side. It may be said that they will be biased. Doubtless they will.
– Two permanent assessors would also be biased.
– Precisely. The same objection would apply to them. Moreover, the fact that they would be biased is not material. If we had an impartial umpire, he would hear all that was said upon both sides, and would be able to reconcile the differences of the two experts, or, at all events, to give an intelligent decision. Moreover, if experience showed that it was desirable to appoint two permanent assessors, that -course could be adopted later on. I certainly consider that it would be very much better to commence with the present time-honoured system of arbitration - to have a thoroughly qualified expert to act on each side, and a thoroughly competent and impartial umpire to -adjudicate between them. There is another matter to which I desire to draw attention, for it appears to me to be one of very great” importance. Honorable members will observe that at present I am criticising only what I believe to be the weak points in the Bill, and they must not infer from that criticism that I am opposing the Bill as a whole.
– It is a most useful kind! of assistance.
– Without criticism, we can scarcely deal with the matter intelligently. The Bill, as it stands, will extend to rural industries, as well as tometropolitan industries throughout the Commonwealth. But, before applying theprovisions of any measure of this- kind torural industries, we should first see whether that step is necessary. So far as I am aware, no occasion has ever arisen, nor is it everlikely to arise, for the application of the provisions of a measure of this character to rural industries. Permanent farm employes takeas much interest in the well-being of theiremployers’ business as if they were members of their families. We do not find anythingin the nature of a strike occurring amongst farmers, dairymen, and others engaged in rural industries. I am not referring in thisregard to coal mining or anything of thatkind
– The honorable memberdoes not refer to the pastoral industry - toshearing 1
– I have given a great deal of consideration to the question of theapplication of this Bill to those who follow the occupation of shearers, and I do not think that, as it stands, it would apply tothem.
– They are not permanenthands ; they are only casual employes.
– They are not employes in the ordinary sense of the term. Usually a pastoralist draws up a scale of” conditions, and shearers looking for work - or one or two of their number - inquire how much per hundred he intends to give. If the rate is not sufficient, they do not acceptwork, and they are at liberty to seek employment elsewhere.
– We have had some fairlylarge shearing strikes.
– But they have not been strikes within the meaning of thisBill.
– The point is open to argument. I have been considering how tomeet the difficulty.
Mi-. G. B. Edwards. - The shearers are an organization, and they might be broughtunder this Bill.
– I do not say thatthey should not be brought under its operation, but so far as I can determine from a study of the definition clause of the Bill, I »m disposed to think that they would not come within its scope. There is never a strike in the other branches of rural industry to which I have referred, and there is no likelihood of one taking place. Would it not be a matter for regret seeing that the employers and employes agree mutually as to the conditions of labour which should prevail in these industries, that we should throw an element of discord of this kind among them ? Why should we attempt to apply a remedy to an evil which does not exist ? I do not think it is necessary, nor do I think it would be wise to do so.
– Is there no dissatisfaction among farm labourers?
– I have never heard of any.
– Then they have not enough spirit to complain?
– That is not the point. The fact is that most of them are thoroughly satisfied with their position.
– And most of them in a few years become farmers themselves?
– Quite so. I could tell of many who commenced at the very bottom rung of the ladder - who started work at a moderate wage - and gradually improved their position until they became owners of farms.
– Farm labourers cannot become farm owners in Victoria because the State has no more land to offer them.
– But they can buy land. I could name many persons to-day worth £50,000, £60,000, or £70,000, who, to my knowledge, were at one time working for £1 a week, and al) honour and credit to them for having improved their positions to such an extent. I merely mention this matter in order that the Attorney-General may make a note of it, because 1 believe it would not be wise for us to apply the Bill to these rural industries. We must not regard this Bill as a blessing ; we can regard it only as the lesser of two evils. The less we interfere with industrial matters the better it will be. We are justified in interfering with them only when we find that the interests of the public are suffering at the hands of the parties to the dispute. Up to that point we should not interfere. I certainly think that those engaged in rural industries should be exempt from the provisions of the Bill. There is another pro”vision - that referring to the common rule - to which I would invite the very serious attention of the Attorney-General. Under the Bill as it stands the effect of an award made by the Court in one solitary case may be extended by it to every similar industry throughout the Commonwealth. “Mr. Poynton.- Does the honorable member think that the Court would take that action ?
– Why should we give the Court the power to do so ? It is no excuse for us to say that members of the Court will have more sense than we possess. If we place the provision on the ‘ face of the Bill, we shall really extend them an invitation to take this action.
– Will they not require the power in order to get over the first difficulty raised by the honorable member as to the rate of wages being greater in one State than in another?
– No. This is an essential corollary of the other provision, because if the Court extended an award to an industry throughout the different States, the position would be that we should have the same wage applying to it regardless of the varying conditions of life or the cost of living. We know that it would be impossible to apply that rule intelligently or satisfactorily. The narrower the range of interference the better it will be. Let us by all means interfere where a dispute actually exists - in cases where a difference arises between employer and employe - but let us not interfere with those who are working harmoniously with their employes. It would not be to the advantage of the workman, any more than it would be to the advantage of the employer, for the Court to interfere in a case of the kind. On some of the gold-fields of Western Australia the cost of living is very high, and would it be fair to determine that men working there should receive only the wage obtained by others residing in a State in which it was possible for them to live and to support their families i at a very much lower cost ?
– But the honorable member is putting an impossible case.
– No ; I am putting a case which is provided for in this Bill. I do not think that we should insert such a provision in the measure. I believe that it is a blot on the Bill, and hope that when we get into Committee it will be expunged.
– Would not such a rule be necessary in the case of the seamen ?
– We might easily make provision for its application, if necessary, to any particular industry. But let us not drag it in and apply it to a number of cases to which it would not be applicable, and in which it could only work mischief. Another matter to which reference has been made by one or two honorable members is the question of the appearance of lawyers before the Court. Having given the matter serious consideration, I have come to the conclusion that it would be very unwise to allow them to do so, and on this point I am entirely in accord with the honorable and learned member for Northern Melbourne. Honorable members will see that the function of a lawyer is to win his client’s case, if he can possibly do so, by any means. That is what he is paid to do, and he goes into the Court to perform that duty to the very best of his ability. We do not want to have lawyers crossexamining and heckling witnesses who come to give evidence upon the difficult, complicated, and intricate questions involved in industrial disputes.
– One of the parties to a dispute may be a lawyer.
– In that case he would appear, not as a lawyer, but as a principal. To my mind the matter is a serious one. If we wish the measure to work satisfactorily, we should remove any excrescences which we may find upon it-
– Is there not a danger of developing lay lawyers ?
– I do not think so. The experts would get up the case for each side.
– The lawyer would be on the Bench.
– Yes. The witnesses, too, will be very careful about their evidence, because they will be aware that two of the members of the Court are experts, and probably know at least as much about the matter in dispute as they do. Clause 65 gives preference to unionists over free labourers. That is a serious blot upon the Bill. Knowing that the measure had been prepared by the right honorable member for South Australia, I expected to find a strong impress of bias upon its provisions ; but, with the exception of the provision to which I now draw attention, I failed to find anything of the kind.
– Preference is given to unionists among employers as well as among employes.
– I object to the principle altogether. Why should a free labourer be deprived of the right to earn his bread because he has refused to join a union %
– The Court will see that the rules of the unions are such that they shut out no one.
– The Bill providesthat the Court may direct an employer togive preference to union labourers, which practically means that no free labourer need’ apply. That is a most unjust provision. Why should any person who, for some reason, chooses to remain outside the unions be deprived of the right to earn his bread’ if he is willing to work for it? I shall vote against that clause, if I am the only member to oppose it. Parliament will degrade itself if it supports the unionists simply because united bodies are likely to exercise more influence at the elections than are separate voters. The provision as it stands simply means that the Federal Parliament is to be a recruiting agent for unionism. Surely that is not one of our functions. I hope that honorable members will strike out the clause. How can we expect the Court to hold the scale of justice evenly balanced’ if we put into the Bill a provision directing its members to lean towards a certain set of persons ?
– How can the awards of the Court be enforced unless we have such a provision ?
– When the honorable member investigates the concrete cases in New Zealand and New South Wales in which preference has been given, he will be satisfied, I. think, that in those cases it was rightly given.
– I think that my honorable and learned friend would be the last to say that because a person for ‘some good, bad, or indifferent reason, objects to join a union, preferring freedom of action and judgment, we should deprive him of the right to earn his bread. The clause reminds me of the lines -
See yonder poor o’er laboured wight,
So abject, mean, and vile, Who craves his brother of the earth,
To give him leave to toil. And see his lordly fellow worm,
The poor petition spurn ; Unmindful though a weeping wife
And helpless offspring mourn.
I ask honorable members to give further thought to this matter. My present intention is to vote for the second reading of the Bill, but my attitude in regard to the motion for its third reading will depend upon the form in which, the measure emerges from Committee.
– I very much regret that an interval of at least a session is not likely to elapse between the introduction and final disposal of this measure by the House. I know, that the principle of State industrial arbitration has been considered in the press and on the platform during the last three or four years, but at the same time probably not one elector in a thousand ever understood that its application meant the introduction of a measure of such far-reaching consequences as this will have. I am rather afraid that in Federal matters the electors are beginning to feel that they have been somewhat deceived by phrases. How many of those who voted for the acceptance of the Constitution, or for the election of the members of this House, thought that under the guise of a Bill for the prevention and settlement of industrial disputes extending beyond the limits of one State, power would be assumed to make laws for Australia - to quote the words of a resolution passed by this House on the 28th June, 1901 -
As to wages and hours and conditions of labour?
Certainly not the Prime Minister, when in communicating the terms of the resolution to the Premiers of the States, he said -
It is by no means the wish of the Federal Government or of the House to arrogate to themselves any power in this direction.
Certainly not the Premiers of New South Wales, South Australia, and, I think, Tasmania, when they point-blank refused to give the requisite power. Nor was it so anticipated by Mr. Leake, the then Premier of Western Australia, whenhe expressed his opinion that the exercise of such a power would be inexpedient. Very few members of this House whenthey without opposition - because there was no division - allowed the motion to be passed must have understood its necessity if this Bill could have been introduced and constitutionally placed on the statute-book. I say, therefore, that we should be bound by the ordinary rules of constitutional government, which condemn the introduction without notice of revolutionary measures. We ought not to spring upon the electors a radical policy which they could have no reason to anticipate - we ought, not to force on the statute-book a measure of this consequence in the dying days of the first Federal Parliament. As regards the measure itself, I do not think we can get very much light as to its merits by indulging too much in those . generalities to which we have listened during the last week or so. Many of those generalities are truisms which might with equal force be used on either side in the debate. They may be harmless, but while they are incontrovertible they are certainly irrelevant ; such as the tremendous injury that is caused by some of those comprehensive strikes which latterly have not been frequent, but on the occurrence of which much insistence has been laid by some honorable members. Nor, no matter what our attitude may be, do I think there is much use in indulging on one side in calling those favorable to the measure mere “ dabblers in socialism,” or, on the other, in imputing the possession of anti-democratic tendencies to those whose reason leads them to stand in opposition. Personally, I consider I am quite as democratic as many honorable members ; at the same time, I know that the sacred term “ democracy “ is too often employed to cover the defects of mischievous legislative machinery. As regards socialism, it has been shown by several historic résumés in this House, that in some form or other - and ‘‘socialism” is not always or often used as a term of opprobrium - it has been the rule rather than the exception for centuries, its direction depending on the class in power. The legislative history of the relations of capital and labour has been marked by one long series of legislative meddlings directed, until the first quarter of the nineteenth century, against the interests of labour. From 1350 to 1824 - from the date of the Statute of Labourers until the abolition of that class of legislation; that is, its being wiped off the statute-books, though not altogether out of the common law - the hours of labour were regulated by law, not, as now, by way of limitation, but by the prescription of the minimum hours.I think it is Thorold Rogers who gives in one sentence the effect of this legislation when he holds that from 1349 until 1824 a conspiracy concocted by law and carried out by those interested in its success was entered into to cheat the English workman of his wages, to tie him to the soil, to deprive him of hope, and to reduce him to irremediable poverty. This legislation really seems to have shown a tendency on the part of those in power to keep the working classes - the men who chiefly bore the weight of the social edifice - in that position of subordination to which, under the assumed dispensation of a somewhat partial Providence, they had been consigned from their birth. When we remember that, it is just as well to be a little tolerant of the methods, even though they be mistaken, of one another, and not, at all events at first, rely too confidently on the probable success of legislative measures, however well intended they may be. On the other hand, it would be equally suicidal to “trust too much to the absolutely unregulated principle of competition, or what is- known as the principle of laissez faire.
– “ More lazy than fair,” as it has been described.
– Those words have been used in reference to the principle. At all events, we know that some of the very worst evils of the factory system were the result of the principle of laissez faire. ‘It was that principle which practically condemned men, and even children of six years of age, to work,, harnessed like dogs to coal trucks, in the bowels of the earth, and that at a time when,, according to Royal Commissions, the profits of the manufacturers of Lancashire ran from 100 per cent, to 1,000 per cent. It is just as well therefore - and I merely mention this in explanation of my attitude - that we should approach- this, subject with minds as clear as possible from class predelictions, cant, or pedantry of any description.. As regards State interference, I shall make some admissions. Remedial legislation as to factories commenced about 1850. I am not now speaking of the legislation of the early part of the century directed against the crying abuses to which I have merely incidentally referred. When the course of remedial legislation was begun with the Ten Hours Bill in 1848, it was confidently predicted that the growing commercial greatness of England would be checked, if not destroyed,, by the principle of that and similar measures. But what has been the result *1 Comparing 1850 with 1900 we find that the trade of England increased from £11 per head to £2.1 per’ head. As a matter of fact the better conditions produced greater efficiency of labour. We know that the efficiency of the English labourer, although he perhaps is less sober in his habits, is greater than that of the coloured labourer of China, India, or Japan, or even of the white labourer of Mexico. There is another reason which would influence me in always looking with considerable care on any measure directed towards the improvement of the condition of the working classes. I admit - and this was pointed out by the honorable member for Darling in .his general references to the introduction of machinery - that it is the working men who suffer from labour-saving appliances. The working men are really the vicarious sufferers from labour economies which ultimately minister to the general good. On that ground I certainly am disinclined to approach with any degree of prejudice, any measure which seems directed to the betterment of the working classes. In referring to these two great principles - the principle of excessive State interference, and the principle of undiluted laissez faire - we must remember that there is a middle line along which the course of legislative activity should be directed - that there is a point at which interference may be justified. As Macaulay pointed out, in speaking in 1848 on the Ten Hours Bill, it is one of the most difficult problems for the legislator to> determine the exact point at which the interference of the Legislature becomes justifiable. If legislative interference has to come,, we must exercise our best judgment in the matter and always, as we are bound to do as men of action, take some risks. I think that, on the whole, the middle line, the bine of development, has been struck in England. In that country factory legislation - and no less than thirty-six Acts were passed during the last ten years of the nineteenth century - has dealt with the subjects of overtime, machinery and child employment, leaving matters relating to the- hours and wages of adult workers to be settled by conciliation and arbitration between the associations and unions of employers and’ employes. I think that I can show that, that system in England has been attended by success. We must remember that the conditions necessary to successful voluntary conciliation have only recently been brought about in the United Kingdom. The fundamental condition was. organization.. »
– Mitchell says that the more organization there is the fewer the strikes will be.
– I wish to quote one or two authorities to prove my position ; I think that it is dangerous to rely on personal opinions in matters of this kind. Mr. John Bae, a writer upon labour questions, states -
Primary institutions which are the necessary basis for legitimate conciliation are the Trades Union and the Employers’ Association.
As a matter of fact, trades unionism was under a legislative ban until the passing of the Conspiracy and Protection of Property Act in 1875. As late as 1834 men were prosecuted for taking part in strikes. Some men in Dorsetshire who had struck for an increase of wages were sentenced to seven years’ imprisonment.
– They were transported.
– I believe the honorable member is right - they were transported for a period of seven years. Therefore, the chances of successful organization really only became marked on the passing of the Conspiracy and Protection of Property Act in 1875. Small concessions were made grudgingly until that Act was passed, and the chances of organization .were exceedingly few, arid, therefore, it is all the more noticeable and significant that organization, has progressed rapidly since then. Mr. Mundella, speaking in the House of Commons in 1896 on the Conciliation Bill of that year, said -
The better trades unions are organized, the more likely they are to agree.
That accords with the view expressed by Mr. Rae. It was really the dockers’ strike of 1889 that gave the great impetus to trade organization. I wish to give one or two instances of the increase of membership of the societies closely associated with the objects of this Bill. In 1888 the Seamen’s and Firemen’s Union had only 500 members, hut after the dockers’ strike their membership roll increased to 59,689. The Miners’ Federation in 1 888 had a membership of 36,000, which had increased by 1893 to 250,000. Inducements to organization, of the imperfect character then allowed by law, were held out by the Legislature at an earlier date. A Conciliation Act was passed in 1824, but was never availed of for various reasons. One of these was the ingrained antipathy to State interference on the part of chiefly, not the English classes, but the 9 f 2
English workmen. Then there was no possibility of enforcing the awards of the Boards as regarded the future.
– The workmen had no representation upon the boards.
– Yes, they had ; the justices were entitled to select the members of the boards equally from the workmen and the employers. The real obstacle, however, was the antipathy to interference, combined with the fact that there was no power to enforce the awards with reference to the future, because they applied only to past disputes. Moreover, the provisions relating to punishments inflicted were very drastic, including imprisonment and heavy fines. These facts strengthen my point that legislative interference in industrial disputes has not been fashionable so far as English workmen are concerned. I think that it could be shown that in the two great British communities - the United Kingdom and America - notwithstanding what has been stated by the honorable member for Melbourne, the principle of voluntary conciliation and arbitration has been attended .with unmistakable success. It is, as I have said, still young - its chief condition, organization, has only recently become effective. Take, for instance, the hosiery trade, which really gave the suggestion of conciliation to the other trades in England. The first Board of Conciliation was formed in 1S66. Mr. Mundella, who, I believe, was the first prominent public man in England to help this organization, made a statement with reference to that trade in the House of Commons in 1896. He said that for sixteen years he had been the President of the Board of his trade, and that during that period no strikes had occurred, but that before that time anarchy almost reigned. The first Board of Arbitration was formed in 1869, in connexion with the iron trade. Let me. quote the evidence of Mr. John Rae, who, writing about the Labour Commission of 1891, in the Contemporary Review of September, 1892, mentions that the operation of the Arbitration Board from its formation, in 1869, until 1892 was almost perfect. To quote his own words -
It had made strikes in the manufactured iron trades extinct, and almost practically as inconceivable as duelling.
There were then two boards in England, one in the north and the other in the midland counties. One -was formed in 1869 -
I think it was the northern board - and the other in 1872. Up till 1892 there were no strikes in the north, and there was practically only one strike in the midlands, which affected only a small number of unaffiliated workmen, who subsequently “ knuckled down “ to the conditions of the Board of Arbitration. Mr. Trow, the general secretary of the Iron and Steel Workers’ ‘ Association, one of the witnesses examined before the Royal Commission, said -
We cannot have a strike in our district; our rales do’ not allow it. If YOU search the pages of history you will not be able to find any parallel ease where any system adopted has been of so much advantage to the workmen and the employers in the trade of a district as arbitration tins been to the workmen of the north of England -
That is, the voluntary conciliation conceived and carried out by themselves. Mr. Aucott, who was one of the many representatives of the workmen, after describing the former state of affairs as one of “ incessant antagonism between master and man,” says -
But now we have got rid of all that.
There the principle first applied is conciliation, or, as they vulgarly term it, “ the long jaw.” If that fails, arbitration is resorted to; but purely upon the voluntary ‘principle. Leaving the representatives of capital and labour, and coming to others who have intervened, we have the evidence of Mr. Hingley, M.P., who says -
The effects of these meetings were an education to both sides.
Asked as to whether the employers carried on the iron industry without fear of strikes, he replied -
Yes, we have ceased to fear anything of the kind.
Their sanctions include dismissal of employes who do not obey the mandate of an award. In one case no less than 400 workmen were dismissed by the Workmen’s Union because they exhibited a disinclination to obey an award which involved a slight reduction of wages. Why, there are actually Wages Boards’ associations which are intended to support strikes against employers who do not obey awards, but their machinery is very seldom brought into operation, because the awards are so rigorously observed. The employers themselves actually contribute to the funds of these associations, the object of which is to maintain a strike against themselves. In addition, insurances are effected under which the workmen guarantee the employers that any awards which may be given upon the voluntary principle will be respected. Let us look at the magnitude of these associations in order that we may consider whether ther the old British instinct of self-reliance has failed in this matter of conciliation and arbitration. The Boilermakers’ and Iron Ship-building Society had, in 1S92, a membership of 37,300. It included 95 per cent, of the total mechanics engaged in the trade. It guarantees the good faith of its members in connexion with matters of conciliation, and it settles disputes even in Scotland and Ireland. Again, let us take the case of the Midland Iron and Steel Wages Board. Its jurisdiction extends over seven counties. FortY-two firms are members of the association, and these control 70 or 80 distinct ironworks. They are the full members of the association, but in addition there are 80 firms which are in informal alliance with it. My authority, Mr. Rae, speaks of them as being -
Guided by its settlements, contributing to its funds and having no say in its management.
Surely that indicates a very large measure of success upon the voluntary principle. Its decisions are so respected that societies not formally affiliated with it for the purposes of control contribute to its funds.
– But there the employers are agreeable to resort to that form of conciliation. Here they are not.
– Any excuse is better than none. I am endeavouring to adhere as closely as possible to the evidence of labour writers. This brings me to the year 1896. Has the principle of voluntary conciliation been a continuing success in England 1 Let me point to the Board of Trade returns in answer to that question. In 1901, 642 disputes occurred. Of these, 456, involving 143,470 persons, were settled by negotiations between employers and employe’s, before “ disputes “ in the true sense of the term had arisen. That is to say, 71 per cent, of the total recognised disputes, involving about 80 per cent, of the workers connected with the trade, were settled in this way. Now, let us look at the number which were settled by strikes. Only 5 of the 642 disputes were settled by the closing of the works, and the number of persons involved in them was only 1,288, as against 143,400 who were engaged in those which were settled purely by methods of conciliation. Besides that, there were 1,405 disputes which never reached the acute stage, and which were settled by the interposition of voluntary boards. Let me quote the Board of Trade’s reference to the success of this voluntary principle of conciliation. Let me point honorable members to the cold-blooded verdict of that body, which never gives very much colour to its pronouncements. They say -
The settlement of strikes and locks-out forms a very small proportion of the work of permanent conciliation and arbitration boards and joint committees. To appreciate these agencies at their true value an account should be taken of the numerous alterations effected in working conditions by them without stoppage of work having taken place. Thus, in the recent report on Chancres of Wages and Hours of Labour in 1901, it is shown that 75 per cent, of all the changes of the year, as measured by the number of persons affected, were arranged by sliding scales, wages boards, or other methods of arbitration and conciliation, while only 2 per cent, of the changes followed upon strikes or locks-out.
Again, is it true, as some honorable members seem to imagine, that the foundations of society are so shaken by the prevalence and intensity of strikes 1 The percentage of the workers affected by trade disputes - taking the mean percentage between 1897 and 1901 - was only 2.4. In other words something like 98 per cent, of the total workmen were not affected by strikes at all. How then can the evil be of such magnitude as some honorable members insist it is 1 It is upon the magnitude of the evils arising from strikes that the strength of their arguments seems to rest.
– The evils have been pretty pronounced in Australia.
– Upon some occasions they have, but, so far as the principal industrial troubles which would come under the operation of this Bill are concerned - I refer to maritime and shearing disputes - I would point out that we have had no great maritime dispute since 1890 and no shearers dispute since 1894. Within the last six or seven years there have not been any strikes of any very great magnitude or such as would come within the scope of a Federal law. The bulk of the arguments adduced by honorable members have been directed to the question of State arbitration as opposed to Federal arbitration. Therefore, I say that we find the English workman, true to his instincts of self-reliance and antipathy to State intervention in lines where liberty of action is unfettered, has framed for himself a method of arbitration which is independent of judicial machinery. It is this capacity for organization and autonomy, which is so marked in the relations of social and industrial life, that has made the British in modern times the great governing race of the world, and has enabled the traditions of the free institutions of the mother country to be perpetuated wherever British .. enterprise has founded a new community. Therefore, we should be exceedingly careful, lest, by too great reliance on State instrumentalities in spheres where voluntary action gives such promise of abiding success, we weaken those special qualities to which we owe the efficiency of our political institutions and the vitality of a vast Empire. Let me now say a few words with regard to the position in the United States of America. In that country there is no Federal intervention, but there are some State Acts providing for State compulsory arbitration.
– There is no legal Federal intervention.
– I am glad that the honorable and learned member has corrected any possible misapprehension upon the point. There is no legal intervention by the Federal power, and, although there are several State Acts relating to arbitration, most of them are dead letters. lacknowledge that in some of the States Federal voluntary conciliation is fostered under the encouragement of the Legislatures. I am not conversant with the details, but I think that it is on the principle of the English Act of 1896 under which the intervention of some governmental authority is allowed. On the question of the growth of voluntary arbitration and conciliation, I wish merely to quote the report of the British Iron Trade Commission on American industrial conditions. The report, I believe, was published last year, and it sets forth that -
In many trades the conditions of labour in not a few localities are determined by conferences between employers and employes, or between , representatives of organizations of employers and employes . . . The most conspicuous manifestation of the movement in favour of moreharmonious relations between employers and employes is found in the system of conference and joint agreement covering trades throughout the entire country or throughout large sections.
Thus we find in the report of the Commission evidence of the growing success of extensive voluntary arbitration. I may mention that four of the leading trades - the stove builders, the founders, the machinists and the printing trades - have en- tered into formal agreements between employers and employes in regard to the voluntary settlement of disputes, and that in the words of the report from which I have just quoted, their operations are of “a national character.” This, at all events, indicates that we should no.t be in too great a hurry in dealing with these matters. I may remind the leader of the Labour party, the honorable member for Bland, of a few lines by a poet who bears his name -
Impatient of the world’s fixed way, He ne’er could suffer God’s delay, But all the future in a day,
Would build divine ; And the whole past in ruins lay,
An emptied shrine.
Is there not a prospect that if we exercise a little patience we may witness the success of the voluntary principle in Australia ? I am led to the discussion of the question of State arbitration, not because the issue before us really depends upon it, and not that I would necessarily be antagonistic to a State Act providing for it. Owing to my desire that the interests of the working classes shall be conserved as far as possible, I have often given a trial to measures of whose efficacy I was doubtful. It was for that reason that I voted for the Bill which introduced the system of Trades Boards in South Australia. The debate,, instead of being confined really to the necessity of State intervention, the limits of the State power and the efficacy of the provisions of the Bill has followed the lines of an issue between State and voluntary arbitration; In South Australia, which here led the way in statutory intervention, conciliation has succeeded, not under the Act, nor by reason of the Act, but purely on voluntary lines. Mr. Russell is, I think, the President of the Conciliation Board in South Australia, and as President he has power to intervene in disputes. As a matter of fact, however, he does not intervene in that capacity. In the past he has simply taken action upon the submission of others, and he has settled disputes by way of voluntary arbitration. According to the report which Mr. Russell presented to the right honorable member for
South Australia, Mr. Kingston, he .has settled six or seven strikes since the introduction of the Act.
– When was it introduced t
– I think the Act was passed in 1894. Mr. Russell presided as an umpire in the settlement of these disputes, one of which related to a shearing trouble that was likely to overflow into other States. The dispute was settled by his intervention, but as he points out, he intervened not as President nor under the powers conferred upon him by statute. I should like to mention here that the reason why he failed to take action in that capacity was that, as he had no power toenforce any award, his intervention might have been resented and ultimately haveproved nugatory.
– He took action under the section in the State Act which threw upon him the duty of interfering in the public interest.
– I do not think so. I have his report.
– So have I.
– I have read his report, but the point is not of much importance. I believe that Mr. Russell stated in this document that he did not care to interveneas President, because he knew that he had no power to do more than to report.
– He had a power tointervene independently of the Court.
– We have the fact that, he interfered, and I will admit that his’ intervention was perhaps facilitated by the fact that he occupied an official position under the Act of 1894. He states that -
As a result of seven years’ experience and closeobservation of labour disputes, besides having to some extent helped in ending the great strike at Moonta mines, at an earlier period, I om sure that immense good is capable of being done in the public interest, as well as to the parties immediately concerned, by conciliation pure and simple.
– That is so. The powerof conciliation is vested in him independently of the Boards.
– -There is no power for theenforcement of the report which he presents,’ so that the position really boils down to this : That, owing to his intervention, there have been voluntary settlements of difficulties. The greatest concession that I can make to- the right honorable member for South Australia is that submissions to Mr. Russell have perhaps been facilitated by reason of the official position which he occupies.
– He has a duty in that respect.
– The right honorable member contradicts me in regard to the point that he interfered as President, and I do not wish to be too emphatic upon it. Perhaps I may be mistaken.
– Quite so. I know why we were induced at the last moment to introduce the clause in the Bill to which I have referred.
– I am sorry that the report has not been presented to the House, because I think that it supports my contention rather than that put forward by the right honorable member. I do not know that conciliation is a failure in New Zealand, but the fact that there is a State Act providing for arbitration probably militates against the success of conciliation. It is impossible to provide for that mode of settlement when there is a State Act in relation to compulsory arbitration. Although down to the year 1900, according to Judge Backhouse, the State Conciliation Boards were not availed of to any extent, I find that in an article written by Mr. McCrostie, and published recently in the 1’olitical Science Quarterly of March last, it is stated that though the Boards were not in. favour down to 1900, they are being latterly more availed of.
– The parties may skip over the Boards.
– They may go direct to the Court of Arbitration, but , nevertheless there is an increase in the proportion of settlements by Boards of Conciliation. Judge Backhouse says that one of the causes of the failure of the Boards of Conciliation in New Zealand was the somewhat political complexion of their membership, some of the members of the Boards thinking it their duty to act as partisans, thus making the procedure unpopular.. The Act of 1901 has to some extent cured the admitted imperfection. I do not deny, though at the same time I do not affirm, the success of State arbitration. I say that its success has not been proved ; and I insist upon that statement because honorable members have during the debate said so much about the superiority of State intervention over voluntary settlement.
– That is because State intervention stops strikes, while voluntary arrangements do not.
– Under the New Zealand legislation there have been 400 disputes, and seven strikes affecting about 300 persons, so that although it kills strikes, it increases disputes. Judge Backhouse, in the final pages of his report, points out that the Act seems to have been strained from its original intention, and is now used to obtain the fixing of wages rather than for the settlement of disputes. That is indicated by the registration of associations and unions. Workmen, possibly finding that when markets were good they could, by the precipitation of disputes, have their wages increased, have organized, and disputes have thus been stimulated. In December, 1901, there were 241 industrial unions of workers and 71 unions of employers. Inasmuch as this legislation is really on its trial in New Zealand, I ask if we should hurry unduly in this matter. The first New Zealand Act was passed in 1894, and was amended in 1895, 1896, and 1898. The law was consolidated in 1900, it being thought then that it had assumed its final shape. But it was amended again in 1901, and I believe that another amending Bill is now before the New Zealand Parliament. Those facts show, either that the powers provided are ineffective, or that the appetite of those who favour this kind of legislation grows by what it feeds on: The powers of the Court have been extended, and the scope of the Act as regards the persons affected has been very much widened.
– That argues satisfaction with its working.
– I do not think that the continual amendment of the Act argues satisfaction with its working. Without wishing to be dogmatic, I say that we have not given methods of conciliation a fair trial. I shall now endeavour to prove that the Convention contemplated that this power would not be exercised until the period of probation had been passed by the States. Moreover, the powers now proposed to be conferred far exceed those contemplated by the members of the Convention. To make good these contentions, I will quote some of the speeches of the pioneers of this legislation. The honorable and learned member for Northern Melbourne, for instance, is reported on page 782 of the Adelaide Debates to have said -
I do not want to ask members of this Convention to approach the matter and say that there should be Courts of Conciliation and Arbitration
I admit that if the honorable and learned gentleman had had his own way he probably would have created them under the Constitution, so that not very much is to be inferred from his speech. But he used those words to soothe those who opposed the proposal. In that he was successful, and the strong majority against it in Adelaidewas converted into a small majority for it in Melbourne. The right honorable member for South Australia is reported at page 185 of the Melbourne Debates to have said -
The subject is a difficult one, and we recognise its difficulties, and I think we might give the Federal Parliament credit for as much wisdom. The members of that body will recognise these difficulties just as we do, and will avoid any arbitration or unjust interference.
In the light of recent events, there having been a disintegration of the Federal Cabinet over this very question, the right honorable member’s prognostications were hardly justified. If the Attorney-General of New South Wales were a member of this House, and his action were consistent with his declarations in 1897, he would oppose the Bill, though his opinions may have since altered. He is reported on page 786 of the Adelaide Debates to have said -
There is no matter which the industrial population of Australia would more desire to confine to the local Parliaments, where they can make their influence upon membersfelt, than matters affecting industrial disputes. To give the Federal Parliament power to make laws affecting industrial disputes gives them authority to regulate by penalties every detail of the industrial life of every trade in the colonies.
The Vice-President of the Executive Council also stated that this was a matter to be left to the States. The Attorney-General, too, pointed out the difficulties with which intervention, such as that contemplated by the Bill, would be encompassed. He is recorded on page 784 of the Adelaide Debates to have said -
Although I am prepared to support the motion of the honorable member, I see grave difficulties in this proposal, which is to retain the State law and Federal law upon the same question, as both may have to be applied in times of emergency and urgency. If you had merely left power to the
State to legislate on industrial questions until the Commonwealth Legislature intervened - which was not done - then the situation would be comparatively simple. But I know that neither of my honorable friends desires that. They both desire to retain for their several States for all time the privilegeof controlling industrial disputes within their own borders.
Yet the very object of this Bill is to deprive them of that privilege. Of course, the Attorney-General may have changed his opinion since then.
– No. I am now, as I wasthen, in favour of a uniform Federal law.
– But the honorable andlearned member is trying to obtain it by means of a subterfuge. Twoor three years ago a deputation - I think of Victorians - waited upon the Prime Minister to ask that the Constitution might be so amended as to give power to the Parliament to enact uniform factory legislation. He replied that the Constitution now gave no such power, but he threw out the rather sinister suggestion that perhapsthe necessary authority might be found in its implied powers. I am afraid that therewill have to be a” stretching of these implied powers to cover the interpretation of the Bill if the Attorney-General thinks he can do constitutionally what he proposes to do What really is the true scope of the power ofthe Parliament ? I hold that it was never contemplated by the members of the Convention, and that the Constitution does not provide, that Parliament should have the power to’ deal with cases> other than those with whichthe States cannot deal. This is not a power to pass uniform legislation. It is, as thelawyers would say, a power sui generis. It is not a power to supersede the power of the States by Federal legislation, but a power to bridge over a gap left by want of jurisdiction in the States. It was never intended to destroy the jurisdiction of the States. A maritime strike extending from one State toanother would certainly come within the provisions of the Bill, but a shearers’ strike would probably not come within its provisions. Although an organization may be-, a Federal one, the conditions of labour, wages, and hours of the industry may vary in the different States. I believe that the Shearers’ Union is a Federal organization ; but the rules in New South Wales are not of equal application in South Australia, nor do the rates of wages prescribed in South’ Australia apply in Victoria. How can the fact that an organization is a
Federal one give Parliament power to interfere in disputes which are not identical in the States concerned, and in regard to which the method of settlement must be different ?
– That is what the Bill intends to do.
– Yes ; but it was not the intention of the framers of the Constitution that Parliament should have that power. The Attorney-General said something about a sympathetic strike. Does he think that if there were a strike of the seamen, and a strike of carpenters in sympathy with them, the latter would come under the jurisdiction of the Commonwealth ? Decidedly not. Because the power to settle it would be within the States. My contention is admitted by implication by honorable members like the honorable and learned member for Northern Melbourne, who, on the 28th June, 1901, moved -
That in the opinion of this House it is expedient for the Parliament of the Commonwealth to acquire, if the State Parliaments see tit to grant it, under section 51, sub-section 37, of the Constitution Act, full power to make laws for Australia as to wages and hours and conditions of labour.
That is an admission that the power cannot be exercised under the Bill.
– Except where disputes extend over more than one State. The honorable and learned member was asking for power to deal with all disputes, whether they extended beyond one State or not.
– Exactly; and that is what this Bill contemplates. There can be no doubt that the Bill attempts to impose the factory legislation of one State upon all the States of the Commonwealth.
– I contend that the honorable and learned member is wrong, but, even if his contention be correct, no great harm will be done.
– I think very great harm would be done. Surely we should not attempt to legislate beyond the powers granted to us under the Constitution? Surely we should not attempt by sinister means that which we are precluded from doing by straightforward methods ?
– One of the first clauses of the Bill limits its operation to those cases which are mentioned in the Constitution.
– No doubt, but what is the use of limiting the operation of the Bill in express terms when its whole machinery violates the principle laid down in the Constitution and set forth in the clause referred to?
– But the operation of the Bill is distinctly limited, and the machinery does not violate the principle laid down in the Constitution.
– Surely, the powers granted by the Constitution will be exceeded if we empower the Arbitration Court to make a common rule applying, not only to the parties to any dispute, but to persons - not merely organizations - who are not parties to it. Is not that, even though it may be guarded by a sort of religious homily, a violation of the Constitution ? The clause referred to by the right honorable and learned member contains a declaration of good intentions like those of Joseph Surface. The honorable and learned member for Northern Melbourne plainly stated what was in his mind at that time, and what is still. there. He said -
It will not do, with free-trade between the States, to insist that in “Victoria tailoresses and shoemakers shall not get less than £1 per week, while at the same time in an adjoining State tailors and shoemakers get 12s. 6d. a week.
– That was stated in connexion with the honorable and learned member’s motion seeking for an extension pf the power given by the Constitution.
– Although the honorable and learned member did not attain his end he does not follow up his admission that further p’ower was necessary by condemning the Bill which proposes to exercise powers which are not granted under the Constitution.
– The Bill cannot confer powers that are not granted by the Constitution.
– But the terms of the Bill prescribe that certain things may be done, and I contend that powers are sought which are a manifest extension of those granted under the Constitution. Apparently the principle upon which the Government are acting, is to gather into an Act of Parliament all the powers they consider expedient, in order to carry out their policy, and leave it to the High Court to decide whether those powers are constitutional or otherwise. What a splendid opening that would afford for the lawyers ? There would be daily disputes and weekly visits of migratory tribunals. We should not introduce uniform factory legislation, under the guise of an Arbitration Bill, before the effects of the operation of a uniform Tariff, upon the varying fiscal arrangements of the States, have been ascertained. Clause 51 provides that the award of the Court shall be binding upon all parties to an industrial dispute who are represented before the Court, and upon all organizations and persons on whom the award is declared by the Court to be binding. Then by clause 63 the Court is empowered to make any award the common rule of any industry affected by the award, and to direct within what limits of area, if any, the common rule so declared shall be binding. What is this but an attempt to enact uniform factory legislation ? Some of these powers are unconstitutional in other respects than I have mentioned. Paragraph e of clause 63 confers upon the Court power to direct within what limits of area, if any, and subject to what conditions and exceptions, the common rule shall be binding. That seems to me to be in violation of the spirit of section 99 of the Constitution, which provides that - the Commonwealth shall not by any law or regulation of trade, commerce, or revenue, give preference to one State, or any part thereof, over another State, or any part thereof.
The clause to which I refer gives power to the Court to fix different conditions for different States. The honorable member for Gippsland pointed out that it was not right to give preference to one State over another, owing to the difference in the character of the factory laws in those States, but the provision to which I have directed attention gives power to the Arbitration Court to give a preference. The Court may not make a distinction between any two States involved in a dispute, but it may go further by leaving the States affected by the dispute out of the question, or applying its award to another State which is not a party to the dispute. I ask honorable members if that is a proper provision to place upon our statute-book? Suppose that a dispute extended from South Australia to Victoria, the Court might differentiate with regard to Queensland by prescribing rules for that State which would not have to be compiled with in South Australia and Victoria. It may be said that these powers are incidental to the principle of the legislation contemplated by the Bill ; but surely honorable members will not regard them as being necessary for thesettlement of a dispute between, say,.’ the bootmakers of two States. Suppose that the bootmakers’ organizationswhose spheres of operations are in Victoria and New South Wales, had a dispute which could be regarded as Federal, and theCourt gave an award, would it be right to make a common rule which would applyto the bootmakers in the township of Terowie, in South Australia ? It cannot be contended for one moment that powers such as those now sought, are incidental to ornecessary for the purposes of the settlementof disputes such as those contemplated by the Constitution. 1 desire to mention oneor two other respects in which the provisions of the Bill are calculated to bring about confusion. We shall have a clashing between the States and the Federal Arbitration Courts. There is no power in the Federal Court to supersede the Arbitration Courts of” the States so long as a dispute is purely of a local character, and the line of demarcation must in some cases be very difficult’ todraw. Then we shall have State arbitration laws and Federal arbitration laws, and a State organization may mean onething, and a Federal organization may mean another, and yet both will have to exist under the terms of the States and Federal Acts. There will be Federal rules and State rules applicable to the same organizations, and possibly contradictory, and there will be no power to render them uniform. Clause 63 makes the award of the Court - binding upon parties other than those immediately concerned in the dispute, and it seems to me to be utterly unconstitutional to insert such a provision. The power given to us under the Constitution is to settle disputes, and if we settle a dispute between A and B, we have no justification for dragging in C and making him alsosubject to the award.
– But that power is necessary in order to prevent the extension of a dispute, and is covered by the word “ prevention.”
-Mv interpretation of the word “prevention” is that it is intended to cover anticipatory legislation providing for penalties with a view to prevent disputes. I have already mentioned clause 63, and I may also direct attention to clauses 92, 93, 94, and ‘97, which actually prescribe that a body of employers or employes may be made subject to certain rules, although they are not parties to a dispute. They may be declared organizations and then forced to come under the rules prescribed by the Act, although they may not have been in any way involved in a dispute. Can it be pretended that these powers are ancillary to those given under the Constitution ?
– They are ancillary to the power of compulsory arbitration.
– It was acknowledged at the Convention that the sphere of Federal control over strikes was very limited, and we must not pass a Bill which really attempts to apply, to circumstances that are entirely different, the principles contained in the State Acts. Assuming that we have the full constitutional power to deal with labour disputes in all parts of Australia, would it be possible for us to bring about uniform conditions? In connexion with this matter, I may mention particulars of one or two awards given by the New Zealand Arbitration Court in order to indicate the difficulties which the Court would have to overcome in introducing uniformity. In the boot trade dispute in New Zealand, in 1889, the Arbitration Court fixed 796 rates o pay. The tailoring dispute, as reported in the ‘ Journal of the Department of Labour in New Zealand, in June, 1903, was followed by an award extending from page 562 to page 596, twenty-five of these pages of close printing being taken up by the detailed prices to be paid for all descriptions of articles. Do honorable members suppose that a common rule could be made to apply all over Australia in regard to measures such as these? With regard to the constitutional question, over which trouble arose between the right honorable and learned member for South Australia, Mr. Kingston, and his Late colleagues in the Ministry, I cannot understand how any difference of opinion could have occurred. I regard the power to apply this legislation to foreigners as absolute. It was decided in the case of Ah Toy against Musgrave that we have power to exclude foreigners altogether, and that if an alien attempted to land in Australia we could stop him. The same principle runs through all the decisions, and our power over foreigners is conditioned only by international comity, the recognition of which is not so perfect as the Attorneygeneral seems to think.
– We need not observe it unless we like ; municipal law may be applied.
– The position taken up by the Attorney-General was that we had control over foreigners only as regards local matters, but that in other respects, such as the internal affairs of the vessels, our laws could not affect them. In connexion with this matter I desire to quote Hall, who, in his International Law, says -
To whatever extent the view that merchant ships possess an immunity from the local jurisdiction is in the course of imposing itself upon the conduct of States, it cannot as’ yet claim to be of compulsory international authority.
As a matter of fact under the Merchant Shipping Act of 1894 we do impose some of our conditions upon merchant vessels of foreign countries. Amongst others, the load line and the tonnage provisions apply under our legislation. Again, section 14 of the Imperial Customs Act of 1876 contains that provision with regard to ships’ stores which, incorporated in our own statute, was in the case of Kingston v. G-add declared by the Privy Council to be legal. Moreover, the trade and commerce sections of our Constitution are exceedingly comprehensive as against foreigners. In referring to these very clauses, Cooley upon Constitutional Law says -
It is a sovereign power, and therefore knows no limit.
He points out that in one case the Supreme Court decided that an embargo imposed in, I think, 1812, as against England and France was constitutionally imposed. Surely the provision could not have been put to a greater test than that. It may possibly be thought that, under the Merchant Shipping Act, there is a slight limitation as regard treaties made prior to 1869.
– We take larger powers under our Constitution.
– I was coining to that matter. It may possibly be that an obligation to respect treaties which were entered into by Great Britian prior to 1869 may attach to the coastal trade of Australia. But for reasons which I shall give, I do not think that any such obligation is imposed upon us. The Attorney-General has declared that, in this matter, we must legislate in conformity with the ‘ decision in Regina v. Keyn before our power can become operative. My answer is that the legislation passed in the Franconia decision was declaratory legislation - declaratory of the contention of those who dissented from the view that the law of England always did without legislation give power to exclude or affect foreigners.
– That was only the opinion of Parliament.
– We must take it to be mandatory as regards the construction of the common law in Australia. I do not think that the dictum of some text writers - and I know there have been some recent ones, including Taylor - that we must legislate before .our power becomes operative, can be maintained as a matter of strict law. But what difference does it make whether this power is inserted in the Navigation Bill or in this Bill ? Surely it is the difference between tweedledum and tweedledee, and I regret that it has occasioned the retirement of one Minister from the Cabinet. It may possibly be - as was telegraphed by Mr. B. R. Wise yesterday- that the Bill will require to be reserved if we incorporate in it the provision proposed. Personally, I do not think that the Merchant Shipping Act, which contains a condition as to reservation, applies now. Section 735 of the Merchant Shipping Act is, I think, superseded by section 5 of the covering sections of our Constitution, and by section 98. Section 5 is much wider in its terms than are the provisions regarding the coastal trade which are to be found in the Merchant Shipping Act. Section 5 seems to have been substituted for them, because it contains all that the other provisions contain and is still wider in its application, conferring, as it does jurisdiction over every British ship, even when it has passed beyond- the three miles limit, whose first port of clearance and first port of destination are within the Commonwealth. There is no condition as to reservations the Constitution regarding the exercise of these powers. Then section 51, subsection 1, to which the right honorable member for South Australia, Mr. Kingston, referred, confers all the power that we want. Further, section 98 says -
The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State.
That imposes no limitation. The powers conferred therein are not conditioned even by reservation, as is the case in the Merchant Shipping Act of 1894. If honorable members argue to the contrary, their> contention simply means that our Constitution is lopsided, because under the Trade and Commerce sections we should then have power to deal with Inter-State traffic upon land, and with traffic upon British ships, but our power to control the foreigner would be prescribed by the Merchant Shipping Act of 1894.
– Nobody has contended that.
Mi-. GLYNN. - That is what such a contention would amount to. In that case the exercise of our powers would depend upon an Imperial Act, and not upon an Act of the Australian Parliament. For that reason I think that the Attorney-General is mistaken in his view that the power to regulate the coastal trade, as regards British ships, is not equally co-extensive with, and subject tothe same conditions as apply to foreign, vessels.
– I did not deny that contention at all.
– The Attorney-General thought that that power ought not to be exercised.
– I thought that it ought not to be exercised by a simple declaration as to the jurisdiction of the Court. I held that it would require to be done by express language.
– The Attorney-General forgets that the express language in the case1 of Regina versus Keyn was an Act of Parliament. Without an Act of Parliament it could be enforced, up to low-water mark ; but it could not, it was decided, be enforced, up to the three miles limit.
– The thing has been donein Federal legislation - in the Immigration Restriction Act.
– No doubt it has, and theprinciple, as in the case of Regina versus Keyn, has been declared not to be the law. Consequently, I cannot understand why there should have been a split in theCabinet upon the question of the insertion of this power in a Navigation rather than in an Arbitration Bill. Before closing I desire to again refer to a fact which was brought prominently before the House by the honorable member for Melbourne. Headmitted that we are fighting for a very small amount of trade, although he spoke as if a very momentous question were* involved. He mentioned that £125,000 worth of shipping, the bulk of which represents passenger traffic, was likely to be affected annually. I do not know what profits are derived in the coastal trade, but his remarks imply that, at the present time, they are very substantial. For example, he set’ down the earnings in that trade at £2,250,000, and the outlay at £1,500,000, thereby showing a surplus of nearly £700,000. I should like more light to be thrown upon these figures. It seems to me that some of the vessels, which require greater protection, are making very substantial profits at the present time - profits which range from 10 per cent, to 25 per cent. - speaking of two cases as to which I have obtained definite information. To shortly summarize my views upon this Bill I object to it, because it contains provisions, some of which are of more than doubtful constitutionality, and involve an unnecessary and probably harmful interference with the province of the States. Its scope - as I have endeavored to show - goes far beyond the limits contemplated, if not prescribed, by the Convention, or than has been shown by anything better than mere rhetorical generalities to be expedient. While the principle is still on its trial in some of the States, and has not yet been adopted in all, while the industrial conditions of the units of the Federation - developed as they have hitherto been under different policies - are, still so dissimilar, Federal intervention, even if its eventual efficacy were unquestioned, is at least premature. We have, I hold, no mandate from the electors to legislate along the whole line of our delegated powers during the first two sessions of the Australian Parliament. Let the electors be given a little time to take a survey of our movements, and to accommodate their vision to the now wider field of policy. If, then, with a knowledge of the far - reaching character of this measure, of its effect upon local autonomy, its addition of a new set of tribunals to the already complex and elaborate judicial machinery of the States, its reliance against the healthier modern tendency of British working class traditions on State instrumentality for the re-adjustment of the relations of capital and labour, they still give their fiat to this Bill, we must only with a relieved sense of responsibility accommodate our judgments to the verdictof public opinion.
– After the number of very able addresses which have been delivered upon this Bill one would think that very little remained to be added. Yet volumes have been written without exhausting the subject, and though I cannot lay claim to any very great originality of, thought upon this question, I hope that I shall be able to assign reasons for the faith that is within me. I intend to support the Bill, and I wish that it had gone further and included in its operation a section of the public servants, the railway employes in particular. I say this, because in all the States, efforts have been made to free the Railway Department from political influence. Honorable members are well aware that Railway Commissioners have been appointed with that express object. Yet the fact remains that to-day political influence is just as rife in matters relating to the appointment and promotion of railway servants in the States as it ever was. I know of nothing which would be more calculated to promote the object for which Railway Commissioners were appointed than to bring that large section of State employes under the operation of a Bill of this character. Possibly, it may be thought outside that there has been far too much talk upon this Bill. Its issues, however, are of such far-reaching importance that it cannot be discussed too much before being crystallized into Commonwealth law, and that is my excuse - if excuse be necessary - for occupying a little of the time of this House. So far as I arn able to gather - and I have carefully read those speeches upon the Bill which I did not hear - the chief objection urged against it is that it will interfere with individual liberty. Isthat a new thing ? All law interferes with individual liberty. All law, I maintain, is essentially coercive in its nature. Some laws call upon certain persons, to perform certain duties while others forbid them to commit certain offences. . But whether they are laws compelling the performance of duties or forbidding certain offences, they each and all carry penalties with them, and that fact in itself proves that they are an interference with individual liberty. Even in the industrial sphere it is not a new thing for the nation to step in for the protection of the weaker members of the community. At the begin ning of the factory system in England in the early part of last century, there was very great danger of the destruction of the home life of Great Britain. Prior to the introduction of that system many industries, and especially those associated with the textile trade, were carried on in the homes of the people, and the institution of the factory system threatened to destroy certain forms of home life. Had it not been for industrial legislation, limiting in some degree the employment of women and children in these factories, the fabric of the British Empire would have been shaken to its very base; for, say what we will, it cannot be denied that the basis of our national life rests upon our home life. If we allow our home life to be undermined and destroyed, our national life will not survive. When the nation exercised its right to legislate for the restriction of the employment of women and children, it conferred a benefit not only upon those immediately concerned, but upon the whole industrial community. I contend that, in legislating in this way we, too, are acting not only in the interests of employer and employ^, but in the interests of the whole community. It is a question whether those not immediately concerned in a strike do not suffer quite as much, if not more, than do the masters on the one hand and the employes on the other. It seems repugnant to the British spirit that a man should not be allowed to do what he likes with his own. I have heard the argument that he should be not allowed to do so repudiated over and over again. But we do not allow that feeling to prevail in other matters. Even a man s life is not his own ; it belongs . to the com- .munity, and if he attempts to take it away, he is liable to be punished. A man may not burn his house down ; he may not do anything with his own property, if the doing of the act will cause injury to another. We restrict a man’s action in these ways, and if an individual so conducts his business as to cause injury to those who with him are engaged in it, or to the community in which it is being conducted, the State has every right to say that he shall not continue to do so. It has every right to say that the business shall be conducted in a way that will conduce to the interests of the employer and employe, as well as to the interests of the people at large. We legislate for the prevention of quarrels which result in injury to the body, or to the property of individuals, and we are equally justified in legislating for the settlement of disputes which cause injury, not only to individuals, but to the community. The people, through their representatives in Parliament, are perfectly justified in so legislating as to preserve the peace, and prevent the recurrence of these disastrous disturbances which in the past have caused so much suffering and misery, not only to those immediately concerned, but to innocent property’ holders, business people, and every one else resident in the community. This policy of State interference with private enterprise has been pursued for centuries, and is observed to day in a greater or lesser degree in relation to many businesses which are considered to be inimical to the best interests of the people by placing certain restraints upon them. We do not allow every one to sell liquor. We place restrictions upon the liquor traffic, as well as upon the sale of drugs ; and in many other ways the community steps in in defence of the people at large, and says that certain businesses shall be conducted only under certain conditions. When we have the right to take that action in regard to one business we have the right to take it in regard to all industries conducted in the Commonwealth. There is a fear on the part of employers that legislation of this kind will mean the ruin of a good many of the industries that are at present being conducted in Australia. A writer has expressed the opinion that -
The revolution in social, industrial, and political ideas has led to the conviction that a certain minimum subsistence must absolutely be secured to the worker; and that an industrial undertaking which can only pay by reducing the workers to the condition of “human cattle had better collapse.
I agree with that opinion. I do not think, that there is much to fear from the adoption of the principle, because the evidence of very large employers of labour goes to prove that well-paid labour is nearly always the cheapest. Even if the awards of the Arbitration Court, which, I hope, is to be established, tend generally in the direction of higher wages, shorter hours, and better conditions for the worker - and I am sure there is plenty of room for these improvements - I feel satisfied that they will not result in injury to the employer. In support of my opinion, I desire to quote the views of the late Mr. Brassey - Lord Brassey’s father - who was one of the largest employers of labour the world has ever seen, A writer points out that -
Lord Brassey has given his father’s experiences with respect to the value of high or low-paid labour in his book on Work and Wages. Lord Brassey has collected the material bearing on the wage question which he found in the course of preparing the biography of his father, whose experience was perhaps wider than that of any other employer of labour. In conjunction with his partners, M r. Brassey constructed railways in all parts of the world, and after long experience he found that the cost of constructing a cubic kilometre of railway embankment is almost the same throughout the world, whether the men employed are Hindoos or Chinese, who live on a handful of rice, or Frenchmen, Italians, or Germans receiving the medium pay ; or the highest class of wage labourers, Englishmen, Americans, or Australians. In fact, the labour of the highest-paid workmen was often preferred as the cheapest. Mr. Brassey was not actuated by philanthropic or patriotic motives in showing this preference, but was merely applying, as an experienced contractor, the sagacity to which ‘he owed his remarkable Success. Greater skill and industry and better developed physical powers often counterbalanced the higher pay.
As concrete examples of his contention, and in order to show that increased remuneration may mean cheapness rather than the reverse from the point of view of the employer, even when he is dealing with the same race and class of men I would point out that -
Mr Brassey, when constructing the North Devon railway, increased the wages from 2s. to 2s. Cd., and finally to 3s. a day. and the other conditions remaining the same it was found that the cost of production fell - ( Work and Wages, pp. 67, 68). Similar results were observed withregard to extensive drainage works in London. Brassey met with the same experience in constructing the Paris-Rouen railway. Although the English navvies had just double the pay of the French (5s. and 2s. 6d.) the same work was done more cheaply by English than by French workmen - (Work and Wages, pp. 81, 82). Similar results were obtained on a great number of Continental, Indian, and Australian lines. And we must remember that the workmen were not found by Brassey himself, nut by sub-contractors, whose interest was directly involved in the closest possible reduction of expenditure. This was not infrequently secured by employing higher paid workmen.
In view of that evidence, I think I am justified in asserting that even although the awards of the Conciliation and Arbitration Court may be mostly in favour of the workmen - may make for better conditions, higher wages, and shorter hours - that does not necessarily mean that the industries affected by it will be hampered, or that the employers will suffer. We know that the more leisure that is given to working men - the more time they have to cultivate their minds - the more intelligent they become. The more time they have to spend at home, the more anxious they are to make their homes comfortable and to remain in a good billet when they obtain one. These conditions produce a better class of workmen, who are more anxious to give satisfaction to their employers, and, instead of having men travelling about the country looking for work until their inability to find it causes them to become loafers, -we shall, in such circumstances, have a respectable, intelligent, and industrious class of workmen. These are not to be obtained when employes are subject to dismissal or to be locked out for periods of two, three, or four months in a year. If we look at the position of the world to-day, we find that the most progressive nations - the nations who are leading the van in commerce and industry - are those in which the best wages are paid. The most thriving businesses and the most colossal industries are those in which labourers are treated in the best way. I have a table which, I regret to say, I have neglected to bring with me, showing the cost of weaving calico in certain Continental-European countries as well as in England and America. The prices range from 2 1-1 2d. per hour in Switzerland, to 5½d. per hour in the United States of America. But the American weaver turns out about four times the quantity that is manufactured by his competitor in Switzerland. This shows that it pays the textile manufacturers better to pay 5£d. per hour for the intelligent, contented American workman’s labour than it does to employ a Swiss at considerably less than half that wage. These facts go to prove the contention that if men are well paid and the conditions of their life are comfortable - if employers make it worth their while to give good value for the money they receive that better value is invariably obtained by them. Improvements in the condition of the lives of the workers cause them to like their homes better, and that nation which is composed of happy and comfortable homes is the one which must eventually be the leading nation in the world. It is a workman’s business, as well as his duty, to do all that he can to raise a breakwater against the tendency of wages to fall to the lowest level, because when large numbers of men, as in the old world to-day, are living on the verge of starvation, some of them must topple over the precipice and starve. Such a position tends not only to bring trouble to the workmen who are in that unfortunate state, but causes them to become a burden upon the rest of the community. Instead of earning for themselves they swallow up a good deal of the earnings of others who have already too little to live upon. Under present conditions the workers engaged in any industry have no redress for their grievances, except in the way of strikes, while the employers cannot resist the demands of their workmen, except by resorting to locks-out. What is the result ? Men remain idle week after week. They try in vain to obtain work, and then hang about the corners of the streets, until the act of loafing becomes a confirmed habit. I have known hard-working, sober, industrious men, who have been thrown out of work, to hunt in vain for employment day after day, until, giving up the pursuit in despair, they have waited at street corners for employers to come to them, and have, eventually, as the effect of the economic and industrial conditions by which they were surrounded, become confirmed loafers. That state of things occurs, not only in the large cities, but even in the provincial towns. The conditions which have made for poverty and distress in the old world are to be found here too, and, unless we take steps to stem the tide, we shall be landed where people there have been landed. It is objected that this is expeiimental legislation. All legislation has been experimental at some time and in some place. Every law was at first an experiment. Are we going to keep always in the old grooves ? I would quote the words of Russell Lowell, and say -
New occasions teach new duties ;
Time makes ancient good uncouth ; They must upward still and onward,
Who would keep abreast of truth.
New conditions are always arising. The machinery of the world is being monopolized by those who have been able to secure the control of the stored-up labour of the centuries- what is known as capital. Capital is not the product of the efforts of one man, or of any one generation ; it is the product of the ages. But instead of the people of to-day being “the heirs of all’ the ages,” it is only those who have been able to secure a monopoly of the industrial machinery, and are using it to grind the very flesh and bones of the unfortunates who are asking for the intervention of Parliament, to whom the terra can be applied. It is necessary that some authority should step in between the two parties, and say to the employers - “Thus far shalt thou go, and no further. You have your rights, but these men and women also have their rights. You shall not use the power which you have been able to acquire by your monopoly of wealth to crush those who have not been so fortunate. You shall use it with justice.” This legislation provides that those Who are weak shall have the right to appeal to an independent tribunal, which will hold the scales of justice evenly between them and their employers. Although in a sense we are about to embark upon an experiment, we are following the just and the right course. _ The honorable and learned member for South Australia, Mr. Glynn, spoke of the voluntary Conciliation Boards in the North of England. I have read a great deal about them, particularly in a work of Dr. von Schultze.Gavernitz, a German economist who visited England to inquire into the great textile and iron industries there. I think that if the honorable and learned member will examine into the working of those boards he will find that their awards are not given on the grounds of ‘ equity and justice, but that evidence is taken, and that their decisions are based upon the old law of supply and demand. All the industrial conditions surrounding the dispute are taken into consideration. For instance, if there were a strike in connection with the coal industry, they would take into consideration the state of the market. If there were a large supply of coal on hand, and the market were slack, the chances would be in favour of the masters winning, because they could hold out until supplies were diminished and the market had become firmer ; whereas, if supplies were low, and the market brisk, the men would probably win. . The awards of the boards are given in accordance with the prevalence of these conditions. They are not based on the grounds of equity and justice, but upon the principle that might is right. We ask that a higher principle may be adopted, and that right, and not might, shall rule. We wish to establish a Court which will give an award in favour of whichever side is in the right, so that industries may be conducted fairly and with justice to all. One of the best features of the Bill is that it provides for the prevention of disputes. We do not wait until a boiler has burst before we try to arrive at its strength ; we provide a gauge to measure the pressure of steam before using the boiler. This Bill provides such a gauge for measuring the simmering discontent of employers and employes, and provides a safety valve by which dissatisfaction may escape without injury being inflicted upon either party to the dispute or to the’ community at large. There may be to the legal mind defects in the Bill. It may go a little beyond the express limits of the Constitution. I am not able to give an opinion upon the subject. But, having a knowledge of the distress and misery which is created by strikes and locks-out, I hail with great satisfaction the introduction of legislation which has been designed to prevent them. I believe that the provisions of the Bill will be effective, but that, if defects are found in them, those defects will be removed in Committee. I hope, however, that the Attorney-General will see his way to include among, those to whom the Bill applies the public servants of the State and of the Commonwealth. To say that that would be an interference with State rights is, to my mind, a weak argument. The Governments of the States not only maintain and work their railways, but in many instances they construct them themselves, and there seems to be no good reason why the men engaged upon such work, or under Boards appointed by the Governments of the States, should not be made amenable to the conditions which will apply to those similarly engaged under the control of private corporations or individuals. To my mind, this is one of the most important measures that has come before this Parliament. Although a great deal of time has been spent in discussing it, I do not think that “the debate has been too long, because the addresses which have been delivered have been masterly, and such as would do credit to any deliberative assembly in this or any other land.
– A previous speaker, who supports the Government proposal, twitted those who are opposed to the measure with not having expressed their views upon it, and having therefore left him nothing to answer. I think that those who are opposed to the measure are speaking so late in the debate, because, in the intense eagerness of its supporters to add their voices to their votes, they rushed the roster with their names to the temporary exclusion of opponents. The Attorney-General made a better speech for the Bill than the eagerness of its supporters to speak in its favour would seem to indicate. I can hardly suppose that their speeches have been designed to make up for the insufficiency of his, by supplying arguments which he omitted to state when moving the second reading of the measure. I do not complain because those who are in favour of the Bill, and who will obviously be in a majority when a division is called for, have expressed themselves so fully on the matter ; I draw attention to it merely to point out that if the delay which has occurred in connexion with its consideration is commented upon, those who are opposed to it cannot rightly be held responsible. . Speaking at this late period of the debate, I shall be able to omit much that I had previously intended to say. Other honorable members have fully developed many arguments, and have quoted many statistics and passages which I intended to use, so that I shall be spared the trouble of saying a great deal that I intended to say, and the House will be spared the weariness of listening to me. I shall not do what has been done to, I think, an unusual extent in this debate - attempt to deal with matters which should be dealt with in Committee. Consequently, I hope to be able to make my remarks reasonably brief. I am quite sure that I shall not convert anybody upon this question. I am certain that none, of the few members in this chamber will be converted, although I admit that there have been some wonderful conversions, both of Ministers and honorable members. I am not here to announce another conversion. It is not that I am disinclined to be converted. I sincerely hope that the New South Wales Act, which I opposed, or some other measure will have results as beneficial as its most sanguine supporters could hope for, but I do not feel justified in supporting similar legislation until I feel that it is likely to dispose effectually of the evils which it seeks to cure, and further that, in disposing of them, it will not bring about still greater evils. If I were assured that the experiments already made had proved satisfactory, I should support the measure.
– The honorable member has never been through a strike.
– Yes I have, but not as a striker. i was associated indirectly with the great strike of 1890.
– Does not the honorable member think anything is better than a strike 1
– I shall deal with that point presently, and tell the honorable member what some of his friends have to say upon that aspect of the question. The Attorney-General’s speech was able and eloquent, but to rae it was inconclusive. Instead of proofs he gave us . a picture coloured by his own vivid imagination. He created, if not a new Heaven at least a new earth, while the real creator of the Bill was beyond the gates, and - strange commentary on the message of peace and good-will which the Attorney-General brought to the chamber ! - had refused all efforts at conciliation or arbitration. I refer to the right honorable and learned member for South Australia, Mr. Kingston, the real creator of the measure, whose part in its preparation was fully and graciously acknowledged by the Attorney-General. The Minister regarded the. proposal for fixing wages and hours of labour, and regulating the relationship of employers and employed by law, as something new, as something so ingenious and perfect that it would inaugurate a new era.
– A “ new phase” was the exact term.
– Well, a new phase of existence. It has been shown by honorable members - I do not intend to again drag honorable members down the aisles of the ages along which I understand they have already been conducted - that, so far from being new and modern, this method has been applied for centuries. I quite agree that the proposal now before us is a revival of the old Tory notion of settling the wages of the people by law. This power has been conferred on justices, local bodies, and other tribunals, and exercised by guilds which were recognised by law, and which fixed within themselves the return to be rendered to the master craftsmen and the workmen. That system has failed, and why 1 In some instances it failed because the decision was? unduly against the worker and caused dissatisfaction, and, when opportunity offered^, a change of employment. In other cases it failed because the decision was against themasters to such an extent that the industryceased to be profitable, and was abandoned. As regards the guilds, the decisions weregenerally perfectly satisfactory to the master craftsmen and their employes, but thepeople outside the guilds rebelled against their impositions, and either restricted theconsumption of the- articles produced by theoffending guild by reducing the demand, orencouraged unregulated competition. It may be argued that what did not succeed. at one period of history might succeed at a later stage, but I think that the very circumstances which sustained those systemsin the past, in some cases for a considerable time, namely, the isolation of districts, the difficulty of competition from outside,, the difficulties in the way of migration of workmen from place to place, and the difficulties of consumers in obtaining theirsupplies from other districts, do not existtoday. The ends of the earth are nearer to each other to-day than were the ends of” Great Britain at that time. I do not for a moment say that we should not give thefullest consideration to any measures intended to secure an increase of wages forthe employes ; but we should be careful, in adopting such methods, to secure somethingpermanent in character and not likely to« break down and inflict great injury upon the industries and upon the people they employ. I do not fail to recognise the evilsattendant upon strikes and locks-out. I have seen them and regretted^ them, and if” I could find a method of prevention without bringing greater disaster I should certainly support it. But men who are affected by a chronic complaint which is not vital may beless fit for work and may accomplish lessthan the man who is generally in good health, but who at five or ten year intervals has a serious illness. In the same way an industry in which there is chronic friction from day to day, from week to week”, . and from year to year, may prove ‘less-‘’ productive than one in which more acute friction happens at long intervals. Somehonorable members may ask “How do you. think industrial discord can be brought to’ an end 1” My answer is, by the exercise of greater reasonableness by both sides.
– - That is the trouble.
– I propose to deal with that point. If we cannot secure the reasonableness required for mutual arrangement, how can we expect people to display the still greater reasonableness necessary to submit to continued adverse decisions when there is no serious penalty involved? If those engaged in industrial undertakings will not show reasonableness in one case, bow can we expect them to display it in the other? I am not saying that the unreasonableness has been all on one side. I have had a great deal to do with working men. I have been associated with them as a fellow employe”, and afterwards have had control of considerable numbers. I never had any trouble, and I never heard of such a thing as a strike or a lock-out proposed. I blame some of the employers for not trying sufficiently to establish community of interest between themselves and their employe’s.
– Or even community of understanding.
– I allude, of course, to employers in the more stable industries. I recognise that it might not be possible in cases where men are engaged by the hour, or for only short periods. While stating this, I may very well be asked the question - “Is there any indication of that greater reasonableness upon both sides which would accomplish the result honorable members desire? “ I would point out that in Great Britain greater reasonableness has been shown. The result is - as was pointed out by the honorable and learned member’ for South Australia, Mr. Glynn - that an enormous number of questions, many of which do not reach the stage at which they can be termed “ disputes,” are settled by voluntary boards of conciliation, and the proportion of strikes is thus being regularly and rapidly reduced. Both masters and men declare that these voluntary boards admirably meet the needs of the case, and secure as rigid an adherence to their decisions as could any Court. I say that if Australian employers and workmen are not prepared to move along the same lines they must be much more unreasonable than are their British comrades. I am quite aware that in many employs mutual consideration is exhibited between masters and men. There is community of interest. I know that in some efforts have been made to provide the workmen, not merely with the daily current wage, but with a share in the employer’s prosperity. I ‘ know that retiring allowances have been provided by some employers, and that in other cases sick funds have been created by joint contributions by the men and the masters. There are industries in whicli in a variety of ways mutual consideration is extended as between employer and employes. Whilst the Attorney-General in this Bill is seeking to do good in one direction, I fear that in another he will disturb the sympathetic and friendly relations which exist in certain businesses. Certainly the tendency of such legislation will be to make the employer say - “ I am compelled by the law, and I will be judged by the law ; therefore I will do no more than obey the law.” That is one regrettable result of legislation of this kind. I would prefer to see mutual interest and sympathy extended between employers and employes. The Attorney-General said in this connexion that other disputes are referred to law. Then why need either side, he asked, be dissatisfied or irritated, if we require that all disputes between employers and employe’s, or all demands made by either side shall be referred to a court of law ? But I would ask if the Attorney-General, in his experience of the law, has ever known litigation to produce good relations between the parties concerned ? Has it not frequently created the hatreds of a life-time ? I would also ask him - and this is the crucial question - “ Does he believe that if the judgments of any Court can be readily evaded, the losing side will submit to them very long 1” I am sure that he does not. What follows ? One party to any dispute in a compulsory Arbitration Court may, perhaps, be compelled very effectually to submit to an award, because it may resolve itself into a question of doing so, or of closing his business for ever. But the other party to it - if it wishes to evade the decision of the Court - has merely to endure the penalty, which is nothing as compared with the expenditure connected with a large strike, knowing that if the enforcement of the award means consigning some thousands of men to gaol, it will never be attempted. If people can, without great difficulty, evade a decision of the Court, I fear that when they are dissatisfied they will refuse to submit to it. In that case we shall revert to the era of strikes, whereas if we accepted the principle of voluntary boards of conciliation, by means pf which masters and men could meet and thrash out their difficulties without any need to enter a law court, there would be a much stronger guarantee of the willim? submission of both parties to any decisions arrived at.
– Provision is made in the Bill for the registration of industrial agreements.
– But as long as those concerned think that they can get better terms by going to court .than they can secure by voluntary agreement, they will go to court. It is well known that the British workmen have always declared themselves absolutely opposed to compulsory arbitration. They are intelligent men, and their attitude has not been prompted by a small majority. The Commission, which was appointed in Great Britain in 1894, consisted of some very able representatives of the working classes, every one of whom was opposed to this principle. The employers who were represented on that body, and others who were not employers, but comprised land owners and members of the aristocracy, went so, far as to propose the system of industrial agreements which finds a place in this Bill. But the representatives of the working classes were in direct opposition to it. At the Labour Congress last year, the number who voted against the principle of compulsory arbitration was nearly 1,000,000, as against 300,000, who were in favour of it.
– There were reasons for that.
– I know there were. In the discussions which took place at that Congress, the delegates assembled were not ignorant of the New Zealand Arbitration Act or of its working. They constantly referred to it. Yet the representatives of the boiler makers of Great Britain declared that they were better off under their arrangement than were the boiler makers in New Zealand.
– What attitude would they adopt if they could not secure any arrangement t
– Then we all know that Mr. Ben Tillett, who spent some time in Australia, declared that the New Zealand Act might suit the operatives of that country, but that it would not suit the British workmen.
– He advocated its adoption in America.
– I dc think so. It has been said that the oppalbion of the British and American workmen to compulsory arbitration results from a fear that, not having sufficient say in the law which would control the Courts, or as to the exercise of power by the Judge, they would not obtain justice. Is it then to be wondered at that the employers here argue that, if the Bill is passed in its present form and does not sufficiently satisfy the workers, the latter will either not submit to the decisions of the Court or will apply to Parliament for its amendment? That is to say, if they do submit for a time to antagonistic decisions of the Court, they will approach Parliament to obtain an amendment of the Act that will still further hamper industry and increase the difficulties of the situation. If it could be said that the decision of Parliament invariably represents the views of the people, that would be a complete answer to this objection. But the Labour Party, whose influence to day is quite out of keeping with its numerical strength, in the future may find weak Ministries, just as it has done in the past. A Ministry may agree to proposals in the direction of amending the Act without giving any real consideration to the interests of the community as a whole.
– That does not say much for our Ministries. *
– I am not referring to any particular Ministry. I am stating only that which I am sure the honorable member, if elsewhere, would admit. I shall not expect him to make such an admission in this Chamber. Already we find that in some of the States where conciliation and arbitration laws are in operation the workers are beginning to move towards securing the amendment of those laws. I do not know whether the paragraph which I am about to quote has already been put before the House, but I find that an adverse decision in Western Australia gave rise to serious discontent. A resolution was passed by the employes’ organization, which shows that they regarded the decision very seriously.
– But even that discontent was better than a strike.
– That may be. I am now speaking, not of strikes, but of the likelihood of the operation Le the Bill continuing to prevent the occurrence of strikes. The following paragraph is an indication of the feeling of discontent which was caused amongst the workmen in Western Australia in reference to a decision given by the Arbitration Court of that State : -
The Trades and Labour Council considered the matter -
That is, the award in question - on Thursday night, when the following motion was carried : - “That this Council is of opinion that the awards given in the saddlers’ and carpenters’ disputes issued by the Court of Arbitration are illogical and absurd -
I am not saying that they are not illogical and absurd. I do not know anything about them. But there is the expression of strong feeling on the part of the employes - and tend to bring the principle of compulsory arbitration into contempt.
– I think they should have been brought up for contempt.
– How long can we, with such feeling, expect submission to the decisions of the Court to last 1 The report goes on to state that -
Mr. Croft, who seconded the motion, said that awards given recently hod accentuated industrial disputes, and were calculated to create more strife in twenty-four hours than twenty dozen unions would. Employers had already reduced wages in consequence of it.
– How many verdicts in the ordinary Courts give satisfaction to both, sides ?
– Very few. Even those arbitrations which act upon Solomon’s rule in regard to the ownership of a child and propose to divide the difference do not give satisfaction. Cases similar to the one I have just referred to have occurred in New Zealand, although only in two or three instances has a reduction of wages been made by the Court. What I maintain is - and the future will prove or disprove my contention - that it will not be possible by means of a measure of this kind to obtain the continued adherence of the workers to the decisions of the Court. The employers assert with some reason that when the men become dissatisfied with the decisions of the Court an attempt will be made to secure an amendment of the Act which will still further tie the hands of those who are conducting industries and make it practically impossible to continue some of them.
– And yet all these industries are progressing.
– I am not aware that this Bill has yet become law. I am not at present dealing with the provisions of the measure itself. I am simply putting before the House the views which I hold in regard to the principle involved - not because I need to do so, but because On a question of this kind, and more especially as I am in a. minority, I do not feel inclined to shirk the responsibility of giving utterance to them. The following newspaper paragraph relating; to a meeting held at Temora gives an illustration of the initiation of attempts toamend the Conciliation and Arbitration Act in New South Wales : -
The Registrar of the Arbitration Court havingrefused the application of the Australian Workers’ Union to cancel the registration of the MachineShearers’ Union, a meeting to protest against the action of the Registrar was held last night in the Victoria Theatre. There was a representative attendance, and Mr. W. O’Leary (president of the local Labour League) presided. The only resolution moved was that by Mr. J. McManus, seconded by Mr. J. Duffy - “That this meeting emphasizes the need of an amendment of theArbitration Act to secure - (1) Applications beingheard by the Court and not by the Registrar : (2) the exclusion of lawyers from the Arbitration Court; (3) the restoration of the rights and privileges enjoyed by trade-unions prior to the Taff Vale decision.” 1 am not discussing whether these proposals are right or wrong, but the paragraph I have just quoted shows the effect of one adverse decision.
– That was not a decision of the Court; it was a decision of the registrar.
– It was a decision according to law, to which both sides were required to submit. If the registrar’s decision had been to the opposite effect the employers would have been expected to submit to it, and, therefore, when the decision is against the men they should also be prepared to submit to it. The employers believe that these difficulties, added to those associated with States laws already in existence - many of them being quite proper laws - will hamper industry to such a degree that it will be practically impossible for them to carry on operations. I remember speaking on one occasion to a New South Wales labour representative in regard to the working of the State Arbitration and Conciliation Act. In the course of the conversation which took place before the Act had been passed into law, I pointed out that these results might occur, but the answer was - “It will not matter to me if these industries are abandoned ; the State will take them up. That is what I want, because I am a socialist.” I have no objection to any one who holds such views expressing them, but are we prepared to say that they shall be carried into effect ? Are we prepared to commit ourselves to socialism ?
– We are committed now.
– But not to the extent which this gentleman suggested. We have not yet approved the communistic socialism of Bellamy, which I have heard the leader of the Labour party describe as “a beautiful but impossible dream.” We have not approved the extension of State socialism to all industries. I believe that is the goal which the honorable member for Coolgardie seeks to reach, and he may think it right to endeavour to do. so ; but is- the community prepared to adopt such a course ?
– Does the honorable member think that this Bill commits the community to socialism ?
– I am not saying that it does. I commenced my address by remarking that the objection which workmen in Great Britain have to compulsory arbitration might very well find a sympathetic echo in the objections which employers on this side of the globe entertain to the principle. It has been remarked that whilst the workmen of Great Britain and America are opposed to the principle, the employers, as a whole, of Australia are against it, and the workmen of Australia favour it. Employers may fear the consequence of the power of Labour parties in Parliaments, for example, to obtain amendments of the law; they may have reason to fear the fact that Ministries bow to Labour parties, and they may also object to the principle upon the ground of the eventual destruction of private industries, and their re-establishment upon a socialistic basis. It may be said that my views should have changed in consequence of the experience of. the operation of the New South Wales and New Zealand Acts. The New South Wales Court of Conciliation and Arbitration as yet, however, has given comparatively few decisions. It is really only in its initiator)’ stage, and although I have heard complaints from both sides in regard to the Court, and have heard it stated that its restrictions are exceedingly galling in some cases, I am not prepared to say myself what is going to be the result of ‘ its establishment. As to the New Zealand Court, it has already been correctly stated that, during the existence of the Court, New Zealand has been exceedingly prosperous, and that it was prosperous for some little time prior to its existence. Then, too, almost all the decisions given by the Court have been in favour of one side.
– Is not that to be explained by the prosperity of the colony?
– I have already said that the colony has been’ exceedingly prosperous since the creation of the Court, and I admit that the fact that the decisions have been almost entirely in favour of one side may be due to that. But it is quite impossible to persuade me that if, unfortunately for New Zealand, there should come a time when, owing to lessened prosperity, the decisions of the Court are as universally the other way, those decisions would be continually accepted. It is only experience that would convince me in that regard. During the operation of the Act in New Zealand, and in spite of the advance in the rate of wages to which I believe the men were fully entitled by reason of the prosperous state of the country, the employers generally have been exceedingly well off. I remember Mr. Wise, when introducing his Conciliation and Arbitration Bill in the New South Wales Parliament, giving a return of the dividends paid by a number of companies in New Zealand during the time that the Act had been in force in that colony. They were much higher than those shown by similar companies in New South Wales. What was shown by these returns was that, without an Act of this kind in New South Wales, the employers there were obtaining a less share of the product of industry than were the employers in New Zealand, where such an Act was in operation. How did that arise? It was due to the fact that the products of New Zealand - and the producers furnish the fund out of which all these expenses, including the cost of Government, and other matters, have to come - were prolific and bringing good prices. If the farmers received, say, ls. per bag more for their grain, and got, say, 20 per cent, greater yield from their grazing areas, they would not feel half or more of this extra profit being taken from them in order to benefit the workmen employed in other industries.
– But is there any proof that those workmen would have received any advantage if there had been no Arbitration Court?
– I have already stated that I am in favour of the provision which exists in Great Britain, where there are boards or adjustment bodies to enable those who are directly interested, and who know more about the prosperity or depression of their business than any one else can know, to come to reasonable terms. Under the boards to which I refer, when things are prosperous the workmen benefit. The same thing occurs in some of the States, by a national movement, where there are neither Wages Boards nor an Arbitration Court. It is not my desire that legislation of this kind shall not prove successful. If it does I shall be only too pleased to know that a means has been arrived at for stopping industrial disputes without injuring any industry or those employed in it. So far I have confined myself to the expression of my own views on the general question. I come now to deal with the measure itself. But before discussing its provisions I wish to point out the wonderful changes which have come over the views of Ministers in regard to the subject with which it deals. When in the Melbourne sitting of the Convention the proposal of the honorable and learned member for Northern Melbourne to insert a clause in the Constitution Bill enabling the Federal Parliament to pass legislation pf this kind was under discussion, the present Attorney-General of New South Wales, Mr. Wise, said that it would deprive the workers of local self-government. He opposed the proposal . The Vice-President of the Executive Council, Mr. R. E. O’Connor, said in regard to it -
We base our opposition to the insertion of this clause in the Federal Constitution upon this ground only, that the matter is a matter, not for Federal control, but for State control.
He went on to say -
I do not say for a moment that I would interfere with the right of any State to place this matter upon a compulsory footing. Any State may make that experiment if it thinks fit. Personally, I am not in favour of such a provision, but I say, on this short ground I oppose the introduction of this power into the hands of the Federal authority, because I feel convinced that compulsory power would be sought for and would be obtained.
What an extraordinary thing ! He opposed the insertion of this provision in the Constitution because he thought that compulsory power would be sought for and obtained, and he is now a member of the Ministry which is endeavouring to secure it.
– He is carrying out his own prophecy.
– Yes. The honorable and learned member for Northern Melbourne reflected upon the present.Minister for Home Affairs by saying, in .reference tolas proposal -
The only doubt I have, after all the debate about the correctness of my view, is that I am supported from such a quarter.
– I, no doubt, said something about him first to provoke that remark.
– It was probably said by way of return. The Prime Minister said -
I intend to content myself with adopting, in the main, the conclusions he -
Senator Symon, who was opposed to the proposal - arrived at, and in voting with him.
The honorable and learned member for Northern Melbourne stated by interjection that -
The dispute must be one extending beyond any one State.
The Prime Minister, replying to the interjection, said -
That gives a direct incentive for the extension of the dispute.
Yet the Prime Minister is now by his own admission giving a direct incentive to the extension of disputes. Then I come to the present Attorney-General, who said -
At the same time this is a power, like many others, not likely to be exercised by the Federal Parliament for many years to come. The Federal Parliament will be impressed by the importance of the experiments that are proceeding in the States, lt will watch them carefully, and will deal with the subject as soon as it feels itself competent to do so.
– He has had the New Zealand experience since then.
– The New Zealand legislation had at the time been in force for some years. I am with Mr. Deakin, the member of the Convention, but I am opposed to Mi1. Deakin, the- AttorneyGeneral, who, in introducing the Bill, expressed opinions contrary to those expressed by him at the Convention. Three members of the Ministry voted for the proposal of the honorable and learned member for Northern Melbourne. They were, the AttorneyGeneral, the Minister for Home Affairs, and the Treasurer. The right honorable member for South Australia, Mr. Kingston, also voted for it; while the Prime Minister, the Postmaster - General, and the Vice-President of the Executive Council voted against it. The Minister for Trade and Customs was present during the debate, but he did not vote on the question. Ministers are now ignoring the views which they expressed at the Convention. They are, at the end of the last session of this Parliament, trying to rush through a measure the introduction of which cannot yet be said to be . justified by the experience of similar laws in the States. I could understand the Attorney-General being, consistent in the introduction of a measure to deal with such a wide - spreading dispute as a maritime strike. This measure, however, is intended to apply to the smallest dispute that may extend beyond the borders of a State, and to any dispute in every industry in the States. If that is not the intention, a great part of the Bill will be merely waste paper. The endeavour is to get a grip of every industry in Australia by considering a dispute to be an Interestate dispute, because it is a dispute in which a Federal organization is concerned, or by the application of the common rule. I say that to prevent great and wide-spread disputes that is not necessary. It would be infinitely better to watch the different methods which have been adopted by the States, and to find out how each works. In the meantime, if Parliament must do something, we should pass n simple Bill - not this complicated measure - to deal with large disputes which may extend beyond the limits of any State. I am afraid that the measure will, as the Prime Minister said at the Convention, act as an incentive for the spreading of disputes. The honorable member for Maranoa was candid enough to admit that, by an interjection he made during a previous sitting. One of the parties will soon extend a dispute from one State to another to bring it under the measure, even if the fact that a Federal organization is concerned in it will not have that effect. That is not a desirable state of things. Then the most trivial questions may be brought before the Court. I have glanced over not more than a dozen decisions recorded in the monthly report of the Judge of the New Zealand Court, and I find that he is called upon to deal with the smallest matters. For instance, where a master baker chose to do some work in his own bake-house, he decided that he should do the sponging. I do not say that that decision was wrong. I do not know what it means ; but the matter was a very small one to bring before the Court. He had also to decide whether an employer should put on two youths instead of one man in some particular position. The .question whether a man to be appointed should be a unionist was dealt with in one case, whilst in another the Court had to .decide whether a man had been properly discharged. Just imagine the Federal Arbitration Court being required to go from one end of Australia to another to investigate questions of that kind. We find that an industrial dispute is defined in the Bill as - a dispute in relation to industrial matters arising between an employer or an organization of employers on the one part and an organization of employes on the other part, and extending beyond the limits of any one State. “ Industrial matters “ include - all matters relating to work, pay, wages, reward, hours, privileges, rights, or duties of employers or employes, or the mode, terms, and conditions of employment or non-employment ; and in particular, but without limiting the general scope of this definition, includes all matters pertaining to the relations of employers and employes, and the employment, preferential employment, dismissal, or non-employment of any particular persons or of persons of any particular sex or age, or being or not being members of any organization, body, or society.
That is sufficiently comprehensive to cover everything. It includes the most important matters, and also the most trivial ones, and no Court could successfully regulate the whole of the business affairs of the Commonwealth in the way .that the Bill seems to contemplate. The AttorneyGeneral compared the Bill to an elephant’s trunk, and said that it could pick up a pin or carry a great burden with equal- facility. That trunk will have to stretch from end to end of Australia. It will have to look for pins in the desert sands of Kalgoorlie, in the tropical areas of the Gulf country, or in the wilds of Tasmania, and it will have to carry a great burden, because it will be weighted with practically the whole of the industrial affairs of Australia. Every one will be included within the operation of its provisions excepting Government servants, domestic servants, and professional men. I suppose; however, that an effort will be made eventually to include these, and then, perhaps, it will be as well to give the Court jurisdiction to settle disputes arising between husband and wife. Wives sometimes work harder than domestic servants, often sixteen hours a day, and very frequently receive far less than their fair share of their husband’s remuneration.
– It would be rather a delicate matter for the .Court to interfere between husband and wife.
– Not more so than in many of the matters contemplated by the Bill. It must be evident to every one that if in addition to references, such as may be made to the States Courts, many others are added under the terms of the Bill, we shall bring about a state of the utmost confusion in industrial matters, and the expense of Federal administration will be altogether unjustifiable. It will be remembered that, in connexion with the High Court, objection was urged against superimposing one judicial body upon others to the extent first proposed in that measure. We were opposed to competition and rivalryin the administration of justice which the Bill would have brought about, and the same objection may be raised in connexion with the Court now proposed. We shall have a State Court giving a decision, and a reference being afterwards made to the Federal Court by means of an extension of the dispute beyond the State. Not only is there a possibility of opposite decisions being given by two different Courts, but the application of the Federal common rule to States in which decisions had previously been given by States Courts would bring about endless confusion. Furthermore, I believe that one Judge will not be able to transact all the business that will come before the Court. Disputes will occur in two States perhaps situated some distance from each other, and the Court will either have to attend at such places as may be convenient in both States for the hearing of evidence, or the witnesses and representatives of the parties will be dragged from one State to the other or to the seat of government. We know that the work- of the New South Wales Court is enormous, and when one considers the larger area of the Commonwealth it seems absolutely impossible that one Judge can do all that is likely to be required of him. There would be great difficulty about appointing another Judge to assist him, becausethat would at once open the way todiverse decisions and further confusion. Then again, the greatest difficulty would be experienced in dealing with the diverse circumstances of the Commonwealth as compared with those of any one State. We have already provided that three Judges of the High Court shall be required toconstitute a Court of Appeal, and if the time of one Judge is entirely taken up in settling trade disputes, the provision for the High Court will prove to be totally inadequate. There will be the greatest difficulty in carrying on industry under a complicated system of arbitration by States Courts and a Federal Court. There will, be delays in the hearing of disputes, and endless expense and trouble will be caused in making arrangements for securing decisions. It seems to me that the employers who have to prepare their case, who alone possess the information which must be submitted to the Court, will either be constantly before that tribunal or preparing to appear before it. Firms will almost require a Court partner, and there will be a fine opportunity for the admission of legal gentlemen who will devote their services especially to this branch of the business. _ Possibly some honorable members may think that I am exaggerating the position, but when I note the nature of the disputes which can be brought before the Court, I cannot regard the prospect from any point of view other than that which I have indicated. Then let us look at the difficulties connected with demands which may arise. A demand may .be made in a State Court, and an award may be given. The award may prove unsatisfactory to one of the parties to the dispute, and steps may be taken to extend it so that it may be brought before the Federal Conciliation and Arbitration Court. Or, a dispute may arise between organizations which are of an inter-State character and may be settled by the Federal Court. In such a case, owing to the application of the common rule, those in some other State who are perfectly satisfied with their working conditions may have all their relations disturbed. Then it must be remembered that the full demands do not arise simultaneously. A question of wages may be involved today, another as to hours of labour in the same industry a few months later, to be followed by others relating to privileges, rights, duties, and relationships. I hold that the -difficulties of conducting business under such circumstances will be enormous.
– Of course the honorable member realizes that the decisions of the Courts will not be given by the mere operation of law. They will be given by Courts which can adjust their findings to one
Another and to their work.
– I am quite aware that the Federal or State Courts may endeavour to adjust themselves to one another, but I would point out that a dispute may be brought before a State Court and that tribunal may simply decide it from a State stand-point. Subsequently, through the extension of the dispute to two States, or through a dispute in two States in which the Federal Court may apply the common rule throughout- Australia, the decision given by the State Court may be entirely reversed. The Federal Court may say in effect, “We know that the State Court has decided this question, but it has determined it upon State lines only. We have to regard it from the point of view of the Commonwealth, and there are circumstances which, in our opinion, render the decision of the State Court an undesirable one for the Commonwealth to adopt.”
– The Court is not obliged to make the same decision apply to the whole of ‘the Commonwealth.
– I am not arguing that at is. But we can quite conceive that a Court which is dealing with a part of the Commonwealth may consider that part only and decide accordingly. The Commonwealth Court, on the contrary, may have to take into consideration a great many other circumstances, and in adjusting these matters may not see its way to make the decision of the State Court fit in with its decision for the whole of the Commonwealth. The operation of this measure is not con-‘ fined to matters in regard to which strikes usually occur. It enters into the most minute details of every business, and references to the Court can come from the most distant parts of Australia. I am afraid that as a result we shall have complications with State laws. Even the State Arbitration Courts are encountering these complications at the present time. In New South Wales the Arbitration Court has given one or two decisions which have been declared illegal, as interfering with State laws. There, a certain number of employers and of employes connected with the butchering trade formed themselves into organizations, and arrived at an industrial agreement. The Court accepted that agreement. Then one of the master butchers retired ‘from the organization. He kept his shop open during the hours allowed under the Factories and Shops Act, and, as a result, was brought before the Arbitration Court, and told that, owing to the agreement, he .could not legally do so. His neighbours, however, who were no parties to the agreement, are quite at liberty to keep their establishments open during the period prescribed by the Factories and Shops Act, and the Court is powerless to interfere with them, because they are obeying another law. As a result, placards are now to be seen in many of the butchering establishments in Sydney, announcing that their proprietors will keep them open during the extended hours. I am afraid that a similar conflict will arise between the Commonwealth and the States Courts.
– The law merely ratifies an agreement which the organizations make for themselves.
– I am mentioning a case in which there was an agreement, but the parties to it no doubt thought it could be made applicable to all the trade. The State law allows the butchers, who were not parties to this industrial agreement, to remain open longer, and thus to unfairly compete with those who were parties to it. But, apart from that, in more than one case the Supreme Court has found that the decisions of the Arbitration Court were bad, because they interfered with the State law.
– There was a coal-hewing or measuring case.
– I am afraid that similar cases will occur here unless the Federal Act can override the State Acts. The honorable and learned member for South Australia, Mr. Glynn, who, upon this matter, must be a better authority than I am, does not think that this Bill will override the decisions of the States Courts. There is also a danger of faulty decisions occurring. ‘ I would point out that the men incur two risks of loss in connexion with decisions - first, the risk that a decision in favour of too high wages will injure the industry by limiting its output, and thus decrease employment^ and secondly that the decision may fix their wages too low. The effect of faulty decisions may be very serious to all concerned where there is not a large margin of profit to work upon. I will instance how small is the margin in some cases, even when the total profits derived from an industry are very considerable. Take the case of an industry which employs 10,000 hands, and the profits from which, after paying all charges, inclusive of interest, represent £150,000. If the wages of the employes are increased by a shilling a day, and the selling price of the product of the industry remains the same, the whole of the the profit will be obliterated. With an increase of sixpence’ per day, it might not be worth while to carry on the industry and to incur the inevitable risk. Of course, it may be said that the price of the product of the industry could be increased. That, however, would depend upon circumstances. In some cases it might be possible to increase it, but in a great many it would be utterly impossible. What does that mean ? It means either that the industry would go out of existence for the time being and the men out of employment, or, if there were merely a reduction in the output owing to higher cost, that possibly only half the number of men would be employed. Let us suppose that the men were originally receiving 7s. per day, and that that rate of pay was increased to 8s. per day. Ten thousand men at seven shillings per day would mean a wage fund distributed in that industry of over £1,050,000 per annum. If only half the number were employed at the increased wage of eight shillings per day the distribution of wages would be only £600,000 per annum, or a reduction of £450,000. Consequently, although half of the men received the advance of eight shillings per day, the total wage expenditure would be reduced by a very large sum, and that loss would be distributed amongst the employes in the industry.
– That has not been the effect of the institution of the Wages Board system in Victoria.
– I am speaking not of the Wages Boards, where employers and employed fix wages, but of the accuracy needed in the decisions of a Court of this kind. I am seeking to show the small margin of discretion. I am urging that a small error might destroy not merely theoperation of an industry, but the source of revenue of a large number of employes.
– The honorable member is quoting altogether imaginary figures in support of his view.
– I am assuming that there is a net profit of £150,000 in an. industry of the size I have named. As in other industries, some firms would be earning nothing ; some of them would find a difficulty in making ends meet, while otherswould make a considerable profit. If wetake an estimate of £150,000 per annum as representing the clear annual profit of an industry of the extent I have .named, we shall find that it is fully up to the average of the profits earned in most large industries. I quiteagree that there may be some small industries which give a larger proportion of return, but from my experience I think that the return I have quoted would be quite upto the average in most large industries. It seems to me that in view of the fact that we are legislating for the whole Continent of Australia - with its different climates, soils, productions, and industries - that weare dealing with industries large and small and of varying importance, it would requirea superhuman intelligence to prevent the decisions given by the Court in some cases from being attended by serious results. The more we limit the area within which the Judge is to act in these matters, the moreshall we be likely to obtain results which will not be seriously disadvantageous to certain industries and to those engaged in them. When we spread the area we increase the risk. Weare really attempting by this Bill to take these; important matters out of the hands of local institutions already established in certain States for the purpose of dealing with them, and to place them in the hands of oneJudge who will have to consider an area so wide and a variety of circumstances so great that he will require superhuman intelligence if we are to secure, not decisions satisfactory to both sides, because no Judge could ever give them, but decisions which will not seriously injure some of the industries of Australia. TheAttorneyGeneral’s answer to all this is that we should give the system a trial, that it may succeed, and that if it does, it will prove highly desirable. My answer, although different in detail, is the same in effect. It is - “Try it, but try it by means of the
States tribunals which have already been established.” Do not let us launch into a complication which, if the principle, in itself be good,’ may lead to its destruction. Let us make the experiment through the medium of the existing institutions. We have a variety of them based on different lines. Let us test the different methods by results ; let us gain a greater experience of the operation of those Conciliation and Arbitration Courts and Boards that we have. Let us see whether they will successfully meet the times of depression as well as of prosperity, and, from that experience, let us determine whether it is desirable for the Commonwealth to launch into the establishment of another Court which will add complications to business and make industry more difficult to carry on. I believe that is the proper course for us to pursue, and, as I have already said, I am not without support in that belief. The Attorney-General, speaking at the Convention, said that it was not likely that this power would be exercised by a Federal Parliament for many years - that the Federal Parliament would be impressed with the importance of the experiments which were proceeding in the States-
– He has grown since then.
– In this, respect he has not grown in wisdom, if that is what the honorable member means. The Attorney-General, speaking at the Convention, . said that the Federal Parliament would carefully watch the experiments which were proceeding in the States, and deal with the subject as soon us it felt itself competent to do so. If, in the meantime, the majority wish to meet the case of large and serious strikes extending beyond a State - which it was evidently only intended that the Constitution should cover - that intention may be carried out by passing a Bill enabling the High Court to deal with and settle each particular dispute instead of going into a number of other questions. Such strikes do not occur in regard to a great number of matters affecting the relationship of employers and employes ; they occur in connexion with some big question usually relating to hours and wages, and instead of a Court endeavouring to investigate all the minutiae relating to every enterprise within the bounds of the Commonwealth, it should at least be limited as I have mentioned. If that course were followed, I believe that the’ full intent of the Constitution would be met. I go further, and say that, in my opinion, we are in this attempt exceeding our powers under the Constitution. When we interfere with those matters which members of the Convention both in favour of and against the Bill declared to be purely State matters, I believe that we exceed our rights. I feel that we shall neither be giving a fair trial to the principle that some advocate, nor dealing fairly with the industries of Australia. Although I may represent the unpopular side, I have ventured to speak clearly, and to say my whole mind in regard to this question. I have no desire to in any way injure the workmen of the Commonwealth.
– We all believe that.
– I always believe that it is a good thing for the country that our working people in all industries should, where possible, earn good wages. It is far better for the rest of the community that they should do so. I also recognise that in any industry the wage earned, whatever it may be, must be yielded by the industry; and that the production of the Commonwealth, from which the wage fund and many other funds are drawn, must be equal to the strain put upon it. I fear ‘that if we trust the whole affairs of the Commonwealth to one man, leaving him to decide all the details of the relationship of employer and employe so far as wages, hours of employment, and other matters are concerned, we shall incur great risk. I have much greater faith in the success of that principle of voluntary conciliation and arbitration which we find making strides in Great Britain. The adoption of that principle is more likely to afford a real solution of the difficulty than is the acceptance of the proposal now before the House. I am afraid this measure will increase disputes, irritation, and even ill-will, and I fail to see why, if our fellow citizens in Great Britain - who are of the same flesh and blood - are making successful advances towards the settlement of this important question, we should not be able to proceed upon the same lines. If they are removing discord from industry bit by bit ; if they are reducing strikes and locks-out as the figures quoted have shown us, they are likely to reach a more permanent, more friendly, and more complete settlement of the relationship of employers and employed than we are likely to do by this means. I believe that if employers and employes set themselves determinedly to work in the matter - and I am not blaming one side more than the other for their differences - we shall more surely, and certainly more speedily, see that vision of peace and good-will which the Attorney-General in eloquent words laid before us when introducing this measure to the House.
Mr. L. E. GROOM (Darling Downs).In rising to support this Rill, I may, perhaps, at certain stages regard it from a stand-point different from that adopted by honorable members representing other States, because the principle of conciliation and arbitration has never been in operation in Queensland. Unfortunately for the welfare of our State, however, we have not been altogether free from the evils which result’ from strikes. The great shearers’ strike which took place in Queensland in 1891 was a convulsion of capital and labour, which, I think, I am justified in saying attracted the attention of nearly the whole of the British-speaking people. We then had a strike arising from a refusal on the part of an association to resort to that system of voluntary arbitration of which the honorable member for North Sydney has spoken with so much eloquence. We had the State practically in a condition of revolution for a period of about five months. Trade was paralyzed in some places. Free labourers were going about under the escort of the ‘police, and the militia were called out to keep peace and order. Arson, assault, and other crimes of violence, which no one could justify, were committed. That state of things resulted simply because there were in the community two large organizations - the shearers’ organization, which had a membership of from S,000 to 10,000 nien, and the squatters’ union, a strong body with money behind them, who took up the position that they refused to arbitrate unless the shearers allowed them absolute freedom of contract, and in effect abandoned their rights of combination. I do not say that either side was right . AVe have to look at these matters from the stand-point of th ree persons : the community, the employers, and the employed. We, as the custodians of the rights and liberties of the people, and responsible for seeing that intercourse, trade, and commerce are free and untrammelled, and industry undisturbed by social convulsions, must regard these disputes first from the stand-point of the interests of the community. There is inherent in the State the duty of preserving peace and order. Wherever we find that discontent exists we should’ examine the circumstances to see if it is remedial. If we find two classes of the community at daggers drawn, who, by their fighting, are upsetting trade and commerce, and refuse to come together, we have a right to say - “You must come together and agree to a reasonable settlement.” We are told that the parties should be left free to arbitrate. But are the parties to a large dispute, such as the Queensland shearing trouble, every ready to come together? The position that the stronger party, whether it be the Labour party or the employers, always takes is that it will consent to arbitration only upon the condition that its demands are granted. The honorable and learned member for South Australia, Mr. Glynn, stated that this House had had no mandate from the electors on the subject. I gathered from his statement that he meant that the question was not raised during the general election. I. differ from him there. If honorable members refer to the Maitland manifesto they will find that the Prime Minister there states that -
Among the powers of the Legislature of the Commonwealth is that of conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits ot any one State. This is a power the necessity for the exercise of which it is to be hoped will seldom arise ; but on this subject, in order to be prepared, Mr. Kingston will introduce a Bill. We realize that it is better to be prepared and to provide legislation to meet such cases, rather than have a serious and prolonged dispute sprung upon the country.
The statement that this matter would receive the attention of the Commonwealth Parliament was put in the forefront of the Ministerial programme, and the Bill asks us to give effect to the promise of the Prime Minister. The programme of Government measures would be incomplete if Parliament were dissolved before this measure found its place on the statute-book. The two classes of objections with which we who support the Government have to deal are objections against the principle of conciliation and arbitration, and objections against the Bill itself. We have been told, in the first place, that compulsory arbitration is wrong in principle because it is at variance with economic law. During the debate faint echo.es have been heard of the doctrines of the orthodox political economists that it is wrong to try to regulate by Act of Parliament what they term the competitive principle. We have been told that if we leave individuals alone to fight in the struggle of existence, and let the principle of competition have full play in the bargaining and selling of labour as well of other commodities, w6 shall in the long run get the best results by the mere operation of economic law. We are told that we must not interfere with freedom of contract and the right of individual bargaining. Those who oppose the principle of conciliation and arbitration say - “ Let employer and employe determine between themselves what is a reasonable sum to pay or receive, and you will get the best economical results.” But if we examine into the contention about freedom of contract, we find that in practical operation it never exists. From time to time, since the beginning of last century, the State Iras been saying - “ We find that freedom of contract is a principle which in its operation may work serious injury to the wellbeing of the community.” We were told at one time that freedom of contract should not be interfered with to prevent the employment of child labour. But the State said, “In putting children to work at too early an age, and under insanitary conditions, you are injuring the child-life of the community, and in injuring the child-life of the community yon are injuring the nation.” A similar argument was put forward to prevent the formation of trades unions. It was asked, “Why should men be allowed to bind themselves together, and conspire in restraint of trade 1 These combinations are running counter to the economic principle of free competition.” But the good sense of British communities led them to the conclusion that without the right of combination there could be no real freedom of contract, because to get actual and ideal freedom of contract, the contracting parties must be upon an equality, so that they may bargain fairly and reasonably with each other. If either side is all powerful it can exact what conditions it pleases, and there can be no freedom of contract.
– The Employers Union say now that they do not object to the imposition of restrictions upon the employment of women and children, but that they object to the placing of restrictions upon the employment of men.
– We have now arrived at an age when the system which is. known in some of the text books as collective bargaining has come into vogue. Men gather themselves into combinations on both sides, they have their disagreements, and they then turn round and say to society, “If we cannot force the other party to accept ourterms, we will throw the whole State intounrest.” In this State we have had the highways of commerce blocked by a disputein regard to the conditions of employmentin a certain industry.
– The provisions of the Bill would not affect a dispute such as that to which the honorable member refers.
– I refer to themaritime strike, not to the railway strike. The members of one party to that disputehad control of the ships, and were able to dislocate trade by a lock-out of theirmen, while those of the other party - the men who were engaged on the ships - were able to say, “ We refuse to work under certain conditions,” and were also able tocreate confusion, and the stoppage of tradeand commerce. What means has society at present for putting an end to such disputes 1 In some places there is in existence what is called voluntary arbitration, which to a certain extent is satisfactory ; but when the enforcement of awards is absolutely necessary, it is useless, because thereis no legal force in the obligations entered upon. If two individuals make a contract, it receives the sanction of law ; but if 500- men make a collective contract with thirty or more employers to serve under certain conditions, that collective contract has nob the force of law. The position is a very unsatisfactory one ; because, if eitherparty feel dissatisfied, it can set the contract aside, and resort to a lock-out or a strike in an endeavour to get better conditions. Now that it is proposed to establish an arbitrary tribunal for the regulation of the competitive principle, and the prevention of thesedisputes, it is said that we are acting contrary to economic law. We are asked by the honorable member for North Sydney tosubstitute voluntary for compulsory arbitration.
– I said nothing about economic law.
– No. But if compulsory arbitration is a violation of economic law, voluntary arbitration is equally so, because in each case we have two parties- ^submitting to the settlement of their dispute by a third party. In the one case, however, the arbitrator is. able to say - “ You shall do this,” while in ‘ the other case he says only - “You should do it.” Those who take up that position ask us to adhere to rules which would practically land us in anarchy, and to altogether ignore the gradual trend of legislation during the past century. Dr. Woodrow Wilson, writing upon the relation of the State to labour in his book on the functions of the State, -says -
The birth and development of the modern industrial system has changed every aspect of the matter ; and this fact reveals the true character of the part which the State plays in the case. The rule would seem to be that, in proportion as the world’s industries grow, must the State advance in its efforts to assist the industrious to advantageous relations with each other. The tendency to regulate labour rigorously and minutely is as strong in England, where the State is considered the agent of the citizen, as it was in
Athens, where the citizen was deemed the child and tool of the State, and where the workman was a slave.
Practically the whole trend of legislation has been in favour of the State taking up the position which we are now asked to support. Whenever trouble arises which injures the community as a whole the State has a right to step in and say that it shall cease. The objection with which I have just dealt is an objection to the principle of conciliation and arbitration. I wish now to deal with the objections which have been taken to the Bill itself. In the first place, it has been stated, especially in (Queensland, that the Bill is unconstitutional. I fail to see how it can be unconstitutional. It simply carries into effect and emphasizes :a .provision contained in the Constitution. But it also provides machinery for doing that, and that machinery may or may not, in certain cases, work unconstitutionally. I think, however, that when the proper rules of construction are applied to the Constitution it will be found that from no aspect is the measure unconstitutional. Our Constitution, when it is interpreted, will be interpreted on lines similar to those upon which the Constitution of the United States has been interpreted. The propositions governing this subject which have been laid down by Marshal will be found on page 378. of Bryce’s American Commonwealth: -
The second rule laid down is as follows -
When once the grant of a power by the people to the National Government has been established, the power will be construed broadly. The strictness applied in determining its existence gives place to liberality in supporting its application. The people, when they confer a power, must be deemed to confer a wide discretion as to the means whereby it is to be used in their service.
– There is a special subsection of section 51 of the Constitution which recognises that.
– Exactly. That sub-section confers upon us the power to legislate for the purpose of preventing any dispute which may extend beyond the limits of any one State. And when the Court has to interpret that power, I am sure that it will adopt the American principle and will not construe it in any narrow or limited sense. I have been unable to ascertain from those who argue that’ the Bill is unconstitutional the extent to which they regard it as travelling beyond the powers conferred by the Constitution. We are in duty -bound to stand by the Constitution, and we have no right to assume powers which have not been legitimately conferred upon us. It is our plain duty to avoid creating friction with the States Governments, and those honorable members who are so jealous of any invasion of States rights should make their - position quite clear. The only substantial objection raised by them relates to the extension of the common rule. The question has been asked whether the Court could extend the common rule from one end of the Commonwealth to the other. Some honorable members say “We object to this provision ‘because the Victorians are endeavouring to force their factory laws upon the other States.” But we have to look to the fact that power is given us by the Constitution for the prevention of disputes hich may extend beyond any one State.
– Is the word “may” used in the Constitution ?
– No; the word “extending” is used. We have the power of prevention under the Constitution, prevention when there is a possibility of a dispute extending beyond any one State. We have no power to so legislate as to regulate the whole of the conditions of the domestic industries of the various States ; but when a case conies before the Court for determination and a decision is given, which, in its effect, might bring about industrial peace throughout the Commonwealth, the Court will have . the power to so apply its decision. Suppose, for instance, that a dispute between the pastoralists and the shearers extended over Queensland and New South Wales, and that there was in that dispute an inherent possibility of extension to other States, the Court might express a desire to prevent the dispute from further extending and might make its award of general application. Some persons in Queensland have expressed the opinion that the Bill will have a ruinous effect upon the industries of that State, because it will impose conditions which have not hitherto been enforced. The most recent report of the Chief Inspector of Factories in Queensland, discloses a rather extraordinary state of affairs. He points out that. there has been a decline of 1,215 in the number, of factory hands in the State, and that in Brisbane alone there has been a falling off of 591. He says this result is due partly to the drought and partly to Federation, and he largely blames Federation for the reduction of employes in the boot, confectionery, tobacco, and jam-making industries. He points out that in 1900 Queensland imported from Victoria only £62 worth of boots. In 1901 she imported £490 worth, and in 1902, £6,951 worth. The imports of wearing apparel from Victoria were valued at £’2,69’7 in 1900, at £4,199 in 1901, and at £13,616 for the nine months of 1902. These importations were from a State in which the industries are subject to the operation of Wages Boards. In Queensland there is no such legislation. Yet we are told that in Victoria the Wages Boards are destroying the industries of Victoria, which are more largely contributing to the requirements of the Queensland people every year. The inspector says, speaking of this increase of importations - .
Whether this current can be stemmed I am unable to say, but it seems safe to say that so long as our best operatives are withdrawn from its to the markets where higher wages are obtainable, and practically little or nothing is done to insure the training of competent tradesmen from the youth of the State, the probabilities do not encourage the hope that it will be.
He practically comes to the conclusion that under the operation of the uniform Tariff the best labour is gradually gravitating tothose States in which the highest wages are given. In the -series of resolutions passed by the Brisbane Chamber of Commerce, honorable members are asked to stay theirhands because the provisions of the Bill go beyond the powers granted in the Constitution, because the proposal to empower the Court to apply a common rule is unconstitutional, and because the trend of such legislation is- to hamper and restrict tradeand industry. The last reason throws us back upon an inquiry as to the result of this class of legislation.
– There has been an increase in the operatives in the Victorian, factories regulated bylaw.
– That has been the case in New Zealand also. I have the lastreport of the Department of Labour of New Zealand for 1903, in which the following passages occur -
The general prosperity of New Zealand, steadily augmenting year by year, has reached a point in 1903 when even the most pessimistic and morbid of critics is compelled to acknowledge the progressive character of the colony’s industrial and commercial enterprises. The increase of £3,000,000 upon the value of the exports of the preceding year insures to the land-owner and themanufacturer profits greater than anticipated, while the increased activity of almost every branch of trade has absorbed not only the skilled and unskilled labour of the colony, but large reinforcements of labour trom abroad. There was an excess of arrivals over departures during the year to the number of 12,361, and of these gains to our population 9,535 came from Australia; where the terrible misfortune of long - continued drought affected the owners of cattle and sheep as severely as it did those whowere despairingly watching the parched-up grainfields. Nothing could speak more convincingly as to the buoyant position of employment in New Zealand than the fact that there was absorbed without effort or difficulty so large a body of foreign labour. It is true that many of the immigrants, especially those from Australia, were men of the very best type ; hardy, self-reliant, sinewy men, really seeking work, and only needing from the Labour Department information as to the best direction in which to look. That work, when earnestly desired, could be found by nearly ten thousand strangers is a good proof of the elasticityand soundness of the colony’s condition.
The honorable member for North Sydneyappealed to the Attorney-General to wait until this class of legislation had proved its value. We have already had experience which, I think, is sufficient to justify us in passing this measure. The report of theDepartment of Labour in New Zealand gives particulars of the increase in the number of operatives in the New Zealand factories since the Arbitration Act came into operation. The figures are as follow : -
Therefore while this experiment has -been in operation, and whilst, as we have been told, capital was being driven out of the country, the number of operatives increased by 29,168. If we could rely upon statistics alone in a matter of this kind, these figures would afford the most convincing proof that if the Arbitration Act has not done much to promote good-will and friendly feelings between employers and workmen, it certainly has not done any great injury to the industries of New Zealand. It was said that this class of legislation was desired only by the employes, and that the employers were opposed to it. A very interesting report which is to be found among the Victorian Parliamentary Papers was prepared by Messrs. Best and Trenwith in 1899. They remark -
We made careful inquiries as to how the operations of the Act were viewed from both the employer and workmen’s stand-point, and met leading representatives on each side. We were much indebted to the Premier for arranging a conference for us with the members of the Court representing the employers and workmen respectively, together with several members of the Board of Conciliation for Wellington, with whom we fully discussed the working of the Act. We were assured that the more reasonable class of employers regarded the Act as fairly satisfactory, but there were other employers who complained they had not the same exclusive privileges of managing their business as formerly…… The admirers of the
Act claim, we think with justice, that it has contributed to the maintenance of the industrial equilibrium by securing immunity from strikes, and that it has largely achieved the object for which it was designed.
They quote also the following extract : -
Speaking at the Dunedin Chamber of Commerce meeting, 19th October, 1897, James Mills, managing director of the Union Steam-ship Company, and one of the largest employers of labour in New Zealand, is reported by the *Otago Daily Time** to have said that “ personally he thought the Conciliation and Arbitration Act was a very beneficial one, and one of the most important that had been passed, and he felt that the)’ were under a debt of gratitude to the present Government and Mr. Keeves for maturing the Bill in its 9 g present shape. Probably the measure was capable of improvement, and it would be improved from time to time, but he was sure that compulsory arbitration was the true solution of all labour difficulties.”
Mr.. Outtrim, the Chairman of the Victorian Factories Commission, when interviewed in Sydney in 1902 by a representative of the Daily Telegraph, made the following statements, which are reprinted in W. C. Reeves’ State Experiments in Australia and New Zealand : -
We examined a very large number of witnesses . from both sides, and, with the exception of one employer, there was a unanimous opinion that the principle of the Conciliation and Arbitration Act is a sound one, and that they would be very sorry indeed to go back to the old order of things. Our witnesses were mainly representative of large organizations - men like the President of the Chamber of Commerce, secretaries and presidents of employers associations, and officers of the various industrial unions. They all say that it is a most beneficial law.
Those who advocate delay in legislating for the settlement of industrial disputes until evidence has been taken may well be referred to the report of that Commission. It is an excellent one, and takes cognisance of the operation of the Arbitration Acts in all the States. Dealing with the value of such legislation, upon page 23 the Commissioners say -
The law may fairly be said to have passed successfully through its period of probation. Its main principles have stood the test of time, and, while employers and workers alike keenly criticise each others actions in connexion with its operation in certain industrial centres, in no part of the colony which we visited did we hear any general desire expressed for its repeal. Man3’ suggestions were, indeed, made for minor alterations, but they were put forward with a view of improving the general administration of the Act, while preserving its main principles in their integrity.
Then they speak of the public confidence which exists in the tribunal. I recognise that, to be of any value in the community, a law must command the confidence of the people - that it must truly reflect popular opinion. Otherwise we should have people saying, as they did in England concerning the Education Act - “This Act has been made law, but we are not going to obey it.” Such a state of things has existed, but I do not think that it represents the general state of mind of the Australian public. I believe that the people as a whole feel that this Parliament was elected by them. Each had a voice in its composition, and if this Bill be passed I am confident that whatever decisions may be given by the Arbitration
Court will be respectfully regarded by all law-abiding citizens. We have been asked what is the use of passing a Bill of this character, for if a decision of the Court adversely affected 10,000 unionists they would not obey it. But in New Zealand we know that the workers have loyally submitted to the decisions of the Court.
– Practically in every case.
– Yes. That is characteristic of the Australian community. We know that we have powers of selfgovernment and that we can constitute our own tribunals. I believe that in each of us there is implanted a. love of law and order, and a willingness to accept the decisions of our tribunals. Speaking of this Court the Commissioners add - .
Where a tribunal is held in such general esteem, criticism in matters of detail in debatable questions is OUt of place. It is a pleasure to us to put on record our opinion of the high character of this Arbitration Court, and of the care and thoroughness with which its varied duties are carried out. While its success is, doubtless, in a large measure due to the able Judges who at different times lui ve filled the position of President, it is admitted on all sides that the two lay members chosen at the instance of employers and workmen have invariably exercised their functions with strict impartiality as well as ability, and have thus given the public confidence in the industrial administration of the law which they assist to interpret.
If we peruse the evidence given by the employers we shall find that they are all satisfied with the working of the Act. Foi example, Mr. J. H. Geddes, a master tailor, at Invercargill, was examined as follows : -
You are thoroughly satisfied with the Arbitration Court as it is worked here ?- Yes.
Do you appear in a representative capacity ? - Yes, to represent the master tailors .
In saying that you are perfectly satisfied with the Act. you speak for the others ? - Yes, I think that is the feeling of the employers, both here and, as far as I know, in Dunedin.
Then the views of the saw-millers, as voiced by Mr. James Leggat, may be gathered from the following : -
You are working under the Conciliation and Arbitration Act ? Yes. What is your opinion of it? - I think, on the whole it is a good thing. There may be some little things we do not agree with. One is, giving preference to the unionists.
Taking the Act generally, is it acceptable to you ? Would you like to see it done away with ? - No ; I do not think I should…..
Has it done any injury to general business ? - Not to ours. . . .
Has it placed the employers on a level basis ? - That is the best feature of it, as I just said - each has to pay the same wages.
Then we had the evidence of Mr. William Scott, President of the Master Tailors’ Association, and Vice-President of the Otago Employers’ Association. Upon page 815 of the evidence taken by the Victorian Commission, he is reported as follows : -
I may say as to the Industrial and Conciliation Acts of New Zealand, that I believe a lot of the employers believe in the Arbitration Act, and would be very sorry to see it taken off our statute-book, and I think with a few amendments it could be made such that all the employers in the colony would give it their hearty and full support. Of course the Act came in when things were becoming very prosperous in New Zealand. Trade was improving throughout the whole colony, and the masters at that time were particularly bus)’, so that they did not bother much as to the Act coming in ; they did not give it the consideration that the workers gave it. In fact, to a very large extent this matter was the outcome of the organization of the workers ; their councils represented the matters to the Government, and the Bill was brought in after consulting them rather than the masters. The earlier cases practically went by default, so far as the masters were concerned. They were not organized, and they did not conduct their cases before the Court, with the result that one side was put better before the Court than the other, and in many cases the first awards were bad from the masters’ point of view, in that the cost of manufacture was forced up beyond a fair thing. I do not lay the blame on the workers. I think they were perfectly justified in taking advantage of the Act, and doing what they could to better their conditions and get extra remuneration. I blame the masters for it. It is only within the last year or two that the- masters have realized . on their part that it is necessary to organize and have their side stated before the Court in the same way as the Unions have done. The)’ are doing that now, with the result that the awards given recently have been much fairer and have given greater satisfaction to both parties.
You are thoroughly in favour of the Arbitration Court ? - Yes, I think it is an absolute essential, but our own. is not perfect. With one or two amendments that I am mentioning I think our Act would give satisfaction to everyone. . . . I do not think that any of those associations (employers) wish to destroy the Act. They simply want to amend it and make it a fairer thing. … I do not think that there are many employers in New Zealand who would like to see the Act wiped out, but they would like it amended in the direction I have mentioned. I agree with a remark of Mr. James Mills of the Union Shipping Company, recently that where the cases have been laid before the Court, the awards have been fair, and where the awards have been unfair it has been through their not having the cases properly laid before them.
Most of the employers hold the same opinion. We have been told that the Act will have the effect of preventing the investment of capital in industry. In this connexion I would point out that whilst in
England Mr. B. R. Wise, speaking before the Australasian Chamber of Commerce, laid it down emphatically that instead of capital being scared by the operation of legislation of this character, greater security was given for its investment. He urged that capital would no longer besubjected to strikes and locks-out, and that a Conciliation and Arbitration Act would insure the continuous working of industrial machinery. Capitalists have merely to await an award : they know what period the award will cover, and they are thus afforded a greater sense of security. The statement by Mr. Wise is confirmed by the evidence of Mr. Robert Chisholm, of Dunedin, who gave the following testimony -
Has it (the Act) been the means of retarding investment in any way ? Speaking generally, I dure say it has in some cases, because one naturally understands that a measure of that kind introduced into a place such as this, where every one has his own opinions as to labour and capital, created a bit of a scare at first, but I think quite unnecessarily ; and unless some unforeseen development takes place, I see no reason personally why it should scare any one from the investment of capital in the manufacture of furniture. There may be manufactures for which the colony is totally unsuitable, but that is another point ; but taking any trade in the wood-working line, where you have the material here at your disposal, I do not think there is anything in the Arbitration or Conciliation Act that need have a tendency to scare capital.
Mr. Henry Demarest Lloyd, in his work, A Country Without Strikes, summarizes his ideas of the working of the New Zealand Act in twenty-two conclusions. Among these are the following : -
When, therefore, it is stated that the effect of similar legislation elsewhere has been to hamper industry, I unhesitatingly affirm that the statement will not stand investigation. Judge Backhouse, in his report to the Government of New South Wales, I would point out, arrived at practically the same conclusions as did the members of the “Victorian Commission. I desire to refer to only one other matter, namely, the question which was raised by the right honorable member for South Australia, Mr. Kingston. I think that the position takenup by the AttorneyGeneral is right. In his speech he said - .
I contend’ that just as we cannot bind the Crown, unless we use express terms, so we cannot deal with foreign ships except by legislating expressly and directly.
I hold that if a foreigner temporarily resides in the Commonwealth he is subject to its laws. For the time being he owes it allegiance. He may be brought before our courts, or sued in any action of contract or tort, and is liable for any criminal act committed by him. But his position is quite different when he is outside Australia, and carries on a trade within the Commonwealth. TheAttorney-General takes the view that if we desire to assert our powers in the case of persons who are domiciled outside the Commonwealth, and who simply carry on business along our coast, we must frame our laws expressly for that purpose. In the Bill as framed at the present time, no reference is made to the foreigner.
– It is expressly limited to shipboard.
– The Bill certainly on the face of it does not expressly refer to foreigners. The latest decision bearing on the subject that I have been able to find, is one that is very much in point. We are creating a Court, and the question is, what persons are going to be subject to the jurisdiction of that Court. In the case of In re A. B. and Co. (1900), reported in I.Q.B., 541, at page 544, Lindley, Master of the Rolls, said -
What authority or right has the Court to alter in this way the status of foreigners, who are not subject to our jurisdiction. If Parliament had conferred this power in express words, then of course the Court would be bound to exercise it. But the decisions go to this extent, and rightly I think in’ principle, that unless Parliament has conferred upon the Court that power in language which is unmistakable, the Court is not to assume that Parliament intended to do that which might so seriously affect foreigners who are not resident here and might give offence to foreign Governments.
The Master of the Rolls was dealing in this case with the power of a Bankruptcy Court. He was dealing with the question of whether an order for the appointment of a receiver could be made against a foreigner who carried on business in England, who had assets in England and had contracted debts, there. The question was whether the Court had jurisdiction over a foreigner, and the Court adopting this accepted rule of construction held that it had not. I am perfectly sure that the same rule would be applied to the Bill as it stands, and that although it might be construed as applying to any foreigner resident here and carrying on business in the Commonwealth ; it would not be held to apply to persons who, as I understand the position, are in most cases domiciled entirely outside our jurisdiction.
– The Bill is expressly limited in this respect to British ships.
– It was just as expressly limited before.
– Where 1
– In the words which the present words replace.
– If we desire to extend the operation of this Bill to foreign seamen, a clause will have to be inserted giving the Court express power to deal with them. The objection is also raised that we have no power under the Constitution to make laws that will affect the foreigner. That is a position with which I do not agree. I think we have full power to deal with them. Our Judges, however, are not in exactly the same position as the members of the English Courts. An English Judge must say, “ Here is an Act of Parliament which has been passed by a sovereign authority, and I am in a position, in which, if the person who offends against the Act even if the offence be committed outside the territorial limit is brought before me I must punish him ; I ‘ must obey the law which makes such an offence punishable.”
-“ If I can get him.”
-“ If he is within my jurisdiction.” The Court in Australia has to go a step further. The members of it have to satisfy themselves, first of all, as to whether the power is one conferred by the Constitution. If it is, and the Courts are told to punish the man who offends against the law, they must obey that law. We have had instances of this in our own Courts; We have Victorian decisions in which foreigners have been held to be bound by a service which has been made outside the territorial limit. This matter has been referred to in one or two decisions given by the late Chief Justice Higinbotham. The position is perfectly fair. This is the way in which the position is stated by the authorities -
If, however, “the Legislature of England in express terms applies its legislation to matters beyond its legislatorial capacity, an English Court must obey the English Legislature, however contrary to international comity such legislation may be.” And, “if,” as Cockburn, C.J., said in Regina v. Keyn (1876), 2 Ex. D. 160, “the Legislature of a particular country should think fit by express enactment to render foreigners subject to its law with reference to offences committed beyond the limits of its territory, it would be incumbent on the Courts of such country to give effect to such an enactment leaving it to the State to settle the question of international law with the Governments of other nations.” And in the Amalia (1863) 1 Moore P.C., N.S. 471, at p. 474, Dr. Lushington said : - “ I never said that if it pleased the British Parliament to make laws as to foreigners out of the jurisdiction Courts of Justice must not execute them. Indeed, I said the direct contrary.” And this result may also flow from necessary implication as well as from express enactment. Thus the Merchant Shipping Act, 1854, 17 and 18 Victoria, chapter 104, s. 267, enacted, “that all offences committed at any place out of British dominions by any seaman who at the time when the offence was committed or within three months previosuly had been employed in any British ship “ shall be liable to be tried at the Central Criminal Court. In Regina v. Anderson (1868) L.B., 1, C.C.R., 161, an American serving on board a British ship was indicted at the Old Bailey for the murder of a sailor while the ship was in the River Garonne in Prance. It was objected for the prisoner that the Court had no jurisdiction to try him. It was ultimately decided that the Court had jurisdiction independently of the above enactment, and consequently it became necessary to decide what was its effect. “ The difficulty,” said Blackburn, J. , ‘ ‘ as to the statute legislating for those out of the scope of its authority we must deal with it when it arises. As a general rule, no doubt, we should construe a British statute according to the principles of international law, and confine a legislative enactment to a British subject or to a person subject to British protection.”
It seems to me perfectly clear that under the Constitution we have undoubted power to deal with these matters in respect to our right to regulate Inter-State trade and “commerce, and I do not think that it is necessary to label that power every time we exercise it. The Court, in considering the constitutionality of our statute, would say - “ Is there any ground in this constitution upon which we can justify the constitutionality of this statute.” If they found that there was, I believe that they would uphold the validity of the statute. Undoubtedly we have power to deal with this question in this measure. Perhaps I may be permitted to refer to an American decision which has been brought under my attention. The case, which was decided in the October term, 1902, arose under a statute, section 10 of “the White Act,” which provides -
That it shall be, and is hereby made lawful in any case to pay any seaman wages in advance of the time when he has actually earned the :same, or to pay such advanced wages to any other person ….
In sub-section f of the section it was provided -
That this section shall apply as well to foreign vessels as to vessels of the United States.
That was an extremely important provision, extending as it did to foreign vessels. ‘The master of a vessel was brought up under the Act, ‘and a question arose as to its validity. The Court upheld the validity of the Act, and in one part of his judgment Mr. Justice Brewer said -
When a foreign merchant vessel comes into our ports, like a foreign citizen coming into our territory, it subjects itself to the jurisdiction of this country.
He went on to quote Chief Justice Marshall, and to refer- to the respect usually shown to the laws of other nations. He remarked that this was only a matter of comity ; that a nation always retains to itself its inherent sovereignty to deal with foreigners, or any one else who comes within its borders ; but that for certain international purposes the principle of comity is observed. He went on to say -
Without doubt the sovereign of the place is capable of destroying this implication. He may claim and exercise jurisdiction, either by employing force, or by subjecting such vessels - he was referring to foreign vessels - to the ordinary tribunals.
Then the judgment concluded -
We are of the opinion that it is within the power of Congress to protect all sailors shipping in our ports on vessels engaged in foreign or interstate commerce -
The Act exercised a power over foreigners.
– People shipping on foreign “vessels 1
– Yes, in that area “the Court held that it was valid for Congress to pass a law dealing with foreigners. The judgment continued - whether they belong to citizens of this country or of a foreign nation, and our courts are hound to enforce those provisions in respect to foreign equally with domestic vessels.
– What is the honorable member quoting from ?
– I am quoting from a newspaper report of the’ judgment which is given in full. No doubt the case will now be found in the official Federal reports. The position comes back to this : assuming that we have power to deal with foreigners, are we to deal with them under this measure, or in a separate Bill. That question seems to have been the cause of the unfortunate split between the late Minister for Trade and Customs and his colleagues. ‘ I am not giving a final opinion upon the matter, but it seems to me that there would be some difficulty in enforcing our power against foreigners in this measure. I believe that we have power to regulate the coastal service, and that we can extend the common rule to foreigners employed on vessels employed in the trade. But the question is what is to be the machinery by which we should bring this power in to force. The powers contemplated under this Bill for the enforcement of the awards of the Court are fine, followed by execution and seizure of the property of the person who has committed the offence, and also the power to order imprisonment and the granting of injunctions to restrain vessels from trading along our coast without fulfilling the conditions of the law; but it seems to me that there may be. some difficulty in enforcing an award, and I should like to hear the matter argued more fully before I come to a decision upon the point. Up to this stage ‘ we have had no real debate on that aspect of the question. It might be possible to make an award in such a way that if there were an attempt to evade it, the Court by injunction could prevent the offending vessels from engaging in the coastal trade. I think this Bill is an honest attempt to deal with a very serious question, and that it is not intended to be an invasion of any State light. It evidences an honest desire to deal with these disputes. All that is desired is that the Court to be created shall be able to deal with ‘ those disputes which are likely to extend from one State to another. The measure is a good one. I believe that it will tend to the security peace, and good-will of the community. It will not, of course, put an end to all labour troubles, for as long as we have the competitive system in existence there will always be strife and trouble. The community is entitled to say to the parties to a dispute - “ We feel that we have a right to step in and say this dispute must be settled; because it causes in: jury not only to those immediately concerned but to those engaged in a hundred subsidiary trades - it causes ceaseless trouble in the community, it causes suffering to other people - to innocent men, women and children.” We, as a State, have the power to see that good order shall prevail, and that industry shall be conducted on proper lines ; and therefore we propose to pass this measure in the hope that it will bring about a better state of things.
Mr. G. B. EDWARDS (South Sydney).When we in Australia find ourselves in doubt and that our convictions or decisions are -
Sicklied o’er with the pale cast of thought, we are said to be indulging in a “Yes-No” policy. I may at the outset of my speech remark that I find myself in regard to this measure in a peculiar “Yes-No” position. The principle of determining industrial warfare by industrial arbitration is one to which I have long ago committed myself. I have further committed myself to vote for the adoption of some such principle in relation to Federal legislation, and I find that I atn compelled to vote for the second reading of this Bill. After a careful perusal of its provisions, however, I am forced to the conclusion that there is a great deal in it, which, when we go into Committee I shall have to oppose very strongly in order that this measure may be brought within what, I think, are the only justifiable limits for us to adopt under the Constitution, and in the circumstances which call for legislation of this kind to be passed by the Commonwealth Parliament. To that extent I am compelled to feel myself in opposition to the measure as at present drafted, but I am also impelled by the conviction which I have entertained, since reaching manhood, that we can settle these matters only by arbitration, and that that arbitration must be compulsory, to vote for the second reading of the Bill. To vote against it would be to vote against one of the strongest convictions of my life, and against what I believe is the best policy for the State to adopt with regard to the settlement of disputes and to increase its own national wealth. The principle is one to which I am so fully committed that I was even pleased tolearn some time ago that this subject wasabout to be brought under the consideration of the House. I have long since given in my adhesion to the principle, having come to the conclusion that some such legislation as this is necessary. I have experienced in the conduct of my own business the need for legislation such as this. I have had a strike originating out of a mere trumpery blunder in my own office, when the whole of my employes wentout, and for four weeks I had to walk through gibing men and boys who had left off work for a mere nothing. That strikecost me a great deal of money, and brought my employe’s into severe financial straits, and it broke up what I believe .was one of ‘ the best instances of the good relationswhich should exist between masters and. men. The relations which existed between myself and my men were so good that I looked upon myself almost as a model master ; but for a sudden freak of fancy they left their work, and the result wasprejudicial to the-continuance of those relations. What I have experienced musthave been experienced by many othersThere is something of the bull - dog in human nature, and once you provokea fight you destroy the peace and thefriendly relations which formerly existed. I am compelled, therefore, not only by my intellectual convictions, but by my personal experience, to support some such attempt as this for the settlement of industrial strifewithout strikes or- locks-out. The debatehas largely taken the form of a discussion upon what are the right functions of Government. The strongest opposition to theBill has come from some of our most experienced politicians, who, rightly orwrongly, take the view that the functionsof Government should be severely limited. They have with considerable force pointed to instances in the past history of the world in which the Government have seen fit tointerfere in this, that, or the other way, the greater part of which legislation has since been repealed. From that fact, the deduction has been drawn that the more severely we limit the functions of Government themore likely we are to succeed. To put theposition in the bald phrase used by tho honorable member for Wentworth, the Government ought to provide only the policeman and the sanitary inspector. That may be a clever saying, but it does not comprehend what the most advanced thinkers are prepared to admit should be the functions of Government. Even the honorable member must admit that if there were no other instruments of government he would find his liberty very much interfered with in all directions. Government means something more than he has stated. No. one can place any limitations upon its functions, because as political and social evolution proceeds we find reasons for giving up certain functions and stronger reasons for assuming others which once were not regarded as rightly coming within the province of administration. The idea of the honorable member for Wentworth seemed to be that each man should be -able to do as he likes with his own. That is the falsest assumption of the philosophical idea of government. In contradiction to it we have the laws of all ages, regulating the relations of husbands and wives, of parents and children, and social duties and conditions generally, for the wellbeing of society as a whole. The trend of legislation during the last century has been in the direction of the State undertaking more and more to exercise its influence by the passing of enactments and regulations affecting social and industrial relationships. The argument of the honorable and learned member for Parkes, who is another strong opponent of the measure, notwithstanding his well-stored mind and extensive reading, -seemed to show a great want of perspective. It was as though he were up-to-date, but had not the slightest idea of the trend of development ; as though he recognised throughout the centuries a certain movement which- he thought had now stopped dead. His reading should have told him that in the past, and particularly during the last two centuries, the world has undertaken to regulate more and more, in the relations of one part to another, the organism which we «all society. But he seemed to take the position that we have arrived at the “Ultima Thule of all development. His reading on this subject seems to have stopped short at the year 1870. The political economy written up to that date he applied to this question as to other questions, but he “takes no notice of the advancement of thinkers and legislators since then. In his splendid opening speech when he referred to the development of the application of law in this and other matters, the AttorneyGeneral was undoubtedly quite correct in saying that throughout the history of our nation and of the world there has been a development of the recognition of the principle that law should be applied to the settlement of all disputes. We are not going to stop now and say that we have reached -the end of that development. Having got rid of the duello, and of other methods which existed in the past for settling private disputes, we are not going to say now that we cannot interfere with the relations between capital and labour, seeing that we have already interfered with those relations by applying restrictions to the employment of child labour and of female labour, by passing the Employers’ Liability Acta, and in other directions. Although we at this end of the world may be somewhat in advance of the people in the older countries, or of our neighbours across the seas, that should not stop us from making an earnest experiment to see if we cannot obtain better results from the regulation of these disturbances than we have secured from the free competition of the past. Our own experiences have taught us that there is nothing so destructive to national peace and good order as strikes and locksout. The Attorney-General was quite justified in using the glowing and eloquent words with which he referred to this measure as an attempt to bring about a new phase of civilization. I quite indorse his remarks. The honorable and learned member for Parkes, in trying to throw ridicule upon them, said that the speech was one which should be set to music. I think that it was set to music. It was set te the music of the march of humanity, whose melody is joy and whose harmony is peace. You could hear through it the rhythmic tread of marching men moving ever onward towards the ideal. When the honorable and learned member for Parkes was speaking you could again hear music, the music of the hoofs of Tennyson’s Northern Farmer’s horse, making the very stones resound with the words, “Proputty,proputty, proputty.” We had nothing else in his speech but an endeavour to frighten a community with the .bogey of capital, which would have 1 been exploded years ago if his political economy had been kept up-to-date. He seemed to have the idea that capital will fly from us on the electric wire ; that our money will be sent away by cablegram. It is true that capital can be transmitted, in the shape of credit, by cablegram, but he neglected to tell the House what amount of capital could be taken out of Australia by that means. You could not take away by that means, the land, the buildings, the machinery, the herds and flocks of Australia, nor can you in that way take away the men of blood, brain, and sinew, which is the best capital we have.
– The honorable member should come over to this side of the Chamber.
– I have no desire to do that. I think that there are on the Opposition side of the Chamber quite as good supporters of the Bill as sit behind the Government. I should like to refer now to what I consider the fallacies which underlie the position taken up by those who oppose this principle in the interests of capital ; who seem to tell us that if you do anything which will injure in any way the influence of capital, you will endanger and ruin the nation. That idea appears to rest on the old fallacies of the existence of a wages fund and the possibility of overproduction, both of which have been exploded long ago. The late consul for the United States in New South Wales, Colonel Bell, delivered a very brillant oration in Sydney one evening in regard to the latter fallacy. Rightly considered, no evil can arise from over-production. There may be some slight friction from improperly balanced production, but no nation which is producing a miscellaneous series of requirements can over-produce. The wages-fund theory was exploded when it was pointed out that wages are not paid out of any fund, but are paid out of the product of labour. That has been clearly demonstrated by several of the ablest writers on the question. If there is no necessity for a wages fund out of which to pay your workmen, who are paid out of the products of their labour, there can be no such thing as over-production, because the more you produce the more employment you give. The third fallacy underlying the objection to the measure is the Malthusian idea that population can increase out of all proportion to the means of subsistence. It seems to me that the honorable and learned member for Parkes, in opposing the measure, is a sort of Mrs: Partington, who, with a besom of obsolete political economy, is trying to stem the rising ocean of political development. It is impossible to do that. Legislation of this kind must increase. Although my interests are those of a small capitalist rather than of a workman, it is a good thing for me and for larger capitalists that industrial strife should be prevented. That we have nothing else to do-* but accumulate wealth is the falsest of all ideas. The best thing we can have is a contented working population, which is engaged in producing to the utmost. The curse of some of the half measures in industrial legislation which have been taken in Victoria, and elsewhere, has been that they have produced a spirit in the workman which makes for the limiting of the output, which is the worst thing that you can do. Thedifference between American and English workmen to-day is that the English workmen are coming more and more under the influence of trades unions, and are endeavouring in various ways to restrict their1 output, whereas in America larger wages areearned and paid, because the men are encouraged to produce, by their own efforts andwith mechanical aid, all that they can produce. Much of the trouble has been entirely dueto the false political ideas which have secured such wide recognition under theinflence of the Malthusian theory - as. logically false as it is biologically foolish - and to the false ideas regarding the existence of a wages fund aiming at restriction of output. They have fought against what they calledthe iron law of wages, and, in restricting production, have decreased the fund out of which they were paid. I believe that if capitalists and workmen had a fairer conception of the real truths underlying these* great economical problems, there would be greater agreement between them, because there is nothing so true as that their interests are one. It is-‘ only by their co-operation to the end of production that they can both succeed, and so long as they fight theywill fail to secure the advantages which would be brought within their grasp if they could regulate their difficulties and. adjust them as they occurred. We cannotlay up national wealth iri the hands of a fewmen. In the words of Goldsmith in the? “Deserted Village,” 111 fares the land, to hastening ills a prey, Where wealth accumulates and men decay.
While struggles between labour and capital go on, and employers and their workmen are at cross purposes, the greatest injury must be done to all classes of the community. We find that in England a Commission has been appointed to inquire into the physical deterioration of the people. We have not yet reached that stage, but we have a Commission sitting in one of the States inquiring into the cause of the low birth-rate, thus showing that some of the theories to which I have referred still linger amongst us. The true source of a nation’s lasting prosperity is justice, which redresses wrongs, protects rights, and gives stability to man and the social organism. We cannot show our belief in justice better than by making an effort to settle industrial disputes by means of a tribunal created by the State. We must not look to the interests of the individual. Scientists and political economists agree that society is an organism, that each part is related to the whole, and that every part is inter-related. The only way in which we can promote the advancement of the State is by fully considering the relations of all its parts, and reconciling their differences upon the principles of justice. We should not look so much to the present effects of this measure as to its future consequences. The honorable and learned member for Werriwa entertained us with a long discourse upon the past history of the efforts made to regulate production, and the relations between employer and employe’ ; but much more light would be thrown upon the subject if some one could tell us what would be the effect of legislation such as this upon the next century. In all our efforts we should endeavour to forget the immediate interests of the existing generation, and so frame our legislation as to provide something better for those who come after us. The most pronounced feature of modern political development is the gradual perception of the ideal, as yet but dimly discerned, that the great determining factor as to the justice of any social or political action is the conscious recognition of the interest of that majority which will come after us, and a refusal to be bound by the mere interest of the present generation. This and this only is the counter-blast to socialism. Our Education Act cannot prove of any benefit to present day legislators of from forty to sixty years of years. The question whether the children between the ages of ten and fourteen are educated or not will not affect the lives of present day legislators in any way, because when these children are grown up they will have passed away. We have framed our education system in the interests, not so much of present as of future generations, and of the future of the nation. And when we are dealing with matters of this kind we should cease to regard the interests of the present generation, and think more of those who are to follow. When we recognise what has been done in the past to remedy evils not in the interests of the people who lived then, but of those who are alive to-day, our own duty in that regard is manifest. A reference to what has been done in the old country in this direction is contained in the Principles of Western Civilization, by Benjamin Kidd, who summarizes the position as follows : -
A quarter of a century after Adam Smith had published the Wealth of Nations in England, we see Richardo already beginning to assume the absolute potency of the uncontrolled competitive forces to regulate the entire social process. This was the time when, under the conditions of uncontrolled competition, women and young children were being employed for twelve and fifteen hours a day in the factories of Great Britain in circumstances so terrible, and with results so appalling, that the memory of them still haunts like a nightmare the literature of the modern industrial revolution in England. It was the time when it was said that half the infants of Manchester died before reaching the age of three years, and in which, in certain factory districts, the surviving youthful population was said to be in large part physically worn out before reaching adult age. The first timorous attempt of the State to regulate such conditions of uncontrolled competition was made in England in the year 1802. In this it ventured as yet to interfere only on behalf of apprenticed pauper children ; attempting to make no limit us to the age below which young children should not be employed, and limiting only the working hours of pauper children to twelve daily. It was not till nearly two decades later that the State attempted to interfere in England on behalf of young children generally, prohibiting the employment of those under nine’ years of age, and fixing a twelve hours’ day for all young persons under the age of sixteen, In the fourth decade of the nineteenth century, when the Utilitarians had come to assert with almost the emphasis of a religious dogma, the tendency of economic evils to cure themselves without the interference of the State, the Manchester capitalists were still vigorously and successfully challenging the principle of State interference with the conditions of the employment of “ free “ adult labour ; and it is only from this period forward that there begins in England that long list of measures - the bearing of which in the development of modern society is even as yet not always full)’ perceived - in which the State, in response to the growing consciousness of the time, had interfered to an increasing degree in the relations between capital and labour.
The writer there gives us a bird’s-eye view of what has been done, and I do not see how any man pretending to be a thinker can come to the conclusion that that trend is going to end now. He must be forced to admit that it will continue, and that the justification for this among other measures lies in the fact that it is a legitimate attempt to carry us one step further along the path of progress. It has been admitted even by the supporters of the measure that it is an experiment, but it is one towards which we have been moving for some time,and one which has already undergone some trial. It is also an experiment which this new nation can well afford to make, if when launching it we take the necessary precautions for practical administration. I believe that the true solution of the difficulties which now exist will lie found in another direction, but the world is not sufficiently advanced to admit of the application of that remedy at the present time. I refer to the profit-sharing system. I believe that we shall ultimately legislate in that direction ; that we shall treat every employer as an organism in the shape of a limited liability company, and give every employe an interest in the profits of the concern. If that principle were adopted there would be no longer any disposition on the part of workmen, such as has been so strangely exhibited in Great Britain, to limit their efforts. We are doing the same thing in Australia to some extent. Cases have been quoted of ‘bricklayers declining to lay more than 400 bricks per day, although it is well known that a smart man can lay 1,000 bricks.
– Is that a fact 1
– I state the matter simply as it has been related to me by workmen.
-; - The Union officials deny it.
– A workman has told me that on one occasion when a skilled bricklayer had laid 400 bricks he was told to ease off because he was getting ahead of the rest of the workmen. The operation of such influences as this must be injurious not only to the employ^ but to the nation, because any nation that largely indulges in that practice must ultimately go to ruin. The true solution of labour difficulties will, I feel sure, be found ultimately ins profit-sharing, but I do not think that wehave yet evolved any system that is. practicable or workable. I notice that Mr. Mosely, in speaking of the difference between American and English workmen, refers tothe efforts of British workmen to limit production. I think that we may rely upon M.r. Mosely’s statements as being conscientiously made, because he was noparticular friend of either side. He says -
In England it has been the rule for generationspast that as soon as a man earns beyond a certain amount of wages, the price for his work is cut down ; and he, finding that working harder or running his machine quicker (naturally a greater strain), brings. in the long run, no larger reward, slackens his efforts accordingly. If this be the case, can we blame the workman ? Let the employer look at the matter fairly, and put himself in the man’s place, and say whether-he might not be inclined to act in the same way. In the United States a different system prevails, and the manufacturers rather welcome large earningsby the men, so long as they themselves can make a profit, arguing that each man occupies so much space in the factory, which represents so much capital employed ; and, therefore, that the greater the production of these men, the greater must be the manufacturer’s profit - a proposition more abundantly evident when it is remembered that the standing charges in any factory (always a heavy item) are practically the same, whether the production per unit be large or small. I am convinced that British manufacturers, if they are to obtain the best efforts from their workmen, must come to an understanding with the Unions as to a fair piece price, from which there shall be no “ cutting when the men earn large Wages. Such a system, I feel sure, is necessary if workmen are to be encouraged touse their best efforts and to look at the question broadly ; such is only human nature. Machinery must be run at its highest speed, whilst the workers must feel that they are reaping the fruits of their labour, and that the fruits are secure notonly for the present, but iii the future. In many trades a joint committee of employers and employes meet periodically to settle rates for piece work by mutual consent, and if such an arrangement were adopted all round, I am sure it would be found beneficial ; and this is what is practically done in all American industries. Of course the true solution of the whole problem is profitsharing in some shape or form, and it is towards this goal that I feel both masters and men alike should turn their eyes, lt is a difficult problem, but one that I am convinced can be solved in time. Capital and labour are partners, and they must work as such. One could talk indefinitely on the subject, but space does not permit. However, as I said, herein lies true in- dustrial peace and prosperity.
I believe that the ultimate solution of this problem will be found in co-operation or profit-sharing in some form or other. So far, however, except in very isolated instances,. that system has not been found to be practicable. True, it has been adopted in many instances, but it seems always to have died -out with the individuals who practised it. In considering this Bill we must have regard to the fact that there are some manufacturing institutions in Australia which are partially conducted under that system. We should be acting unwisely, I hold, if in this measure, we did not recognise them and provide for their increase as time goes on. If an employer has been in the habit of paying his workmen a living wage, and of allowing them to participate in the profits accruing from his industry, we should be acting very unfairly if we compelled him to go before the Arbitration Court and concede something in the nature of an increased wage, which would probably not benefit the employes so much as does the present arrangement. Further, I think that when the labour organizations imagine that they can achieve good by restricting production they are labouring under false ideas of political economy. Unless that notion be abandoned and they are *made to feel that their interests are identical with those of capitalists, we shall not accomplish much good.
– Does the honorable member wish to institute a compulsory system of profit-sharing ?
– I desire the system to be recognised in this Bill. Unfortunately, public opinion has not progressed sufficiently to compel its general adoption. I should like to refer briefly to the objections which capitalists have urged against this measure. The chief argument advanced against the Bill is that it partakes of a socialistic character. The fact is that no more effective weapon than this Bill was ever offered for the- repression of socialism. No socialist will be found supporting it. I believe in socialism, and would do nothing to hinder its development. I trust, however, that it will come slowly. Many of the arguments advanced against the Bill are those urged against the worst -features of trades unionism. I suppose I may be allowed to say that trades unionism possesses some bad features. It is by legislation of this character that we shall get rid of that feature which involves resort to the brutal system of strikes. Again, it is urged that the measure will interfere with the investment of capital. I deny that most emphatically. The great aim of any investor is to obtain security, and no greater security could be given to industries which employ large numbers of men than would be conferred by the abolition of strikes. A man to whom such security is extended can well afford to pay something for it. Why are capitalists prepared to accept 3 per cent, interest upon Government securities, whilst simultaneously demanding a return of 8 or 10 per cent, from a manufacturing industry 1 Simply because of the increased risk which they take. Similarly there are many men actively engaged in industry who would be glad to take 1 per cent, less profit if they were assured of immunity from future trouble with their workmen. On the other hand, the success of this measure will depend largely upon whether it is based upon the broad principles of justice. If any attempt be made to make it merely an instrument for the raising of wages, it will signally fail. That is the cause of the failure of the Act in New South Wales. In this connexion, I would remind the members of the Labour party of the story of Frankenstein, who constructed a monster in human form without a soul. It had no breath of divinity. It was so powerful for evil that, becoming conscious of its own deformities, it sought to bring retribution upon its maker. In the same way, the working classes will find in the proposed Court a veritable Frankenstein if they . attempt to secure more than justice from it. I acknowledge that, in dispensing justice, it is almost inevitable that wages will be raised. It is obvious, however, that if we raise wages to such an extent as to prevent profit being derived from any industry, we shall kill the goose which lays the golden egg. I warn honorable members tobeware of pushing this Bill too far in that direction, and I appeal to them to frame its provisions as to the regulation of wages with due regard to justice to both sides.
– One party to a dispute cannot do that.
– I do not think that the employers will use the Bill as a lever to reduce wages. We know that in New Zealand the rate of wages has been increased as the result of similar legislation’. Of course, that country has recently experienced years of prosperity. If the Commonwealth enjoys a few good seasons, similar results will follow. On the contrary, if we experience a series of bad years, a lower rate of remuneration must prevail; otherwise industries will be destroyed. ‘ I believe that the extension of adequate protection to capital is ultimately of benefit to the workers. If the capital invested in machinery, buildings, etc., be not protected, the recoil must be felt by the workers themselves. Again, the workers should recognise that we must secure from them the very best efforts of which they are capable. The reason why higher wages are paid in America than’ in England is that the workmen of the former country perform more work than do those of the latter. Relatively they do not receive more wages. The idea that people can improve their position by doing less work must be abandoned. I repeat that in New South Wales the Act has not succeeded. Whether it will ultimately achieve good I cannot say. I do maintain, however, that the principle which requires an employer to discharge his employes according to the order in which they join his service is unsound. Under such a system he is denied an opportunity of rewarding the workman who is rendering him perhaps the best service.
– Has the rule been applied ?
– I believe that it is applied under a decision of the Court.
– As to coal mines.
– It has been put into force in the case of factories. That was one of the reasons why Mr. Wright closed his factory, although I believe there were others. Any employer should be at liberty to reward merit. It would be far better in callings or trades that would permit of the adoption of such a course, to so grade the men as to bring them as far as possible, under different classes. It is almost impossible to think that 100 men would individually be worth as much to the employer, or to themselves, which is the same thing. I repeat that the New South Wales Conciliation and Arbitration Act has not been successful. I am afraid that it has not yet been long enough in operation to enable us to determine whether or not it is likely to succeed, but I do not think that it can ever be a success. It behoves us, therefore, to see that this measure, if it is to be passed, shall be such that it will have some chance of success - at any rate that it will dispense justice as between the two parties ?
– Why has the New South Wales Act so far been unsuccessful’
– I think the New Zealand Act has been successful.. From all that I have read about it that is the conclusion at which I have arrived.
– The honorable member wishes to know why the honorable member thinks that the New South Wales. Act has been unsuccessful ?
– Because of the unwarrantable interference of the Court with divers matters which cannot interfere seriously with the position of the worker. The Court goes into minute details that tend to harrass employers, instead of carrying out some’ broad principle. As the honorable member for North Sydney has pointed out, if we are to have this elephant wandering about picking up pins, we shall have no end of trouble. If it lays down general lines as to the hours of labour and the rates of pay, there will probably be very few difficulties to be settled. We should aim at regulating the great questions “in dispute. Ihave here some newspaper extracts bearing upon the working of the New Zealand Act.. They include a series of letters written by a New Zealand correspondent of the Times on the operation of the Act in that Colony. The writer criticised the measure very severely, but I do not intend to read his letters to the House.
– Are they of recent date?
– They are dated May and June. Having read them I may tell the House that the gravest charges which this correspondent makes against the Act are that under it, although there has been no sign of any falling off, capital willfinally cease to be employed in the colony, and that seventy-five cabinet makers have been discharged ; but from late reports which I have seen, the whole of those mer? appear to have been absorbed by other industries. He says, further, that employers, have to pay boys sixteen years of age 10s.. per week, although they had been payingthem only 5s. or 6s. per week. Apart from broad generalities, which have nothing very definite in them, the letters contain no> other complaints, and there is nothing which’ should frighten us from proceeding in this direction. I admit, with others, that thetime during which the New Zealand Act has been in operation has been most opportune” for testing the working of such a principle. The Act has yet to stand the test of seasons of adversity, which will try it more strongly than it has yet been tried. But it has been in existence for the last nine years, and my experience of workmen leads me to believe that when they are once brought under a law of this character, and have a tribunal to which they may appeal, they will be ready to accept its decisions. I should like to read Mr. Pember Beeves’ reply to this special correspondent’s letters, which was also- published in the Times, and in which he summed up the answers to them. We have to remember that. this correspondent was writing to a journal which is specially interested, perhaps, to a greater extent than is any other newspaper, in decrying legislation of this kind, and consequently he would say all that could i be said against the New Zealand law. Mr. Pember Beeves said -
Seeing that the Act was passed in 1894, such a verdict from such a quarter in March, 1903, is not one for me to quarrel with, however much the latter part of it seems to me to understate the case. But your correspondent thinks that things are going to the bud. He has been thinking so, and has been predicting disaster to the Act for the lust eighteen mouths ; but the disaster has not come. What are his grounds? He hints that certain employers have talked about giving up manufacturing, owing to high wages, and of taking to importing. Why, sir, tins sort of talk - or newspaper rumours of it - began twelve years ago in New Zealand. The newspaper files of 1891 and 1892 teem with the gloomiest assertions and predictions as to the effect of liberal and labour measures on the finance and industries of the colony. Your own knowledge of the extraordinary growth both of our manufactures and productions ought to be sufficient evidence to you of the flimsy nature of such chatter. Then we are told that the effect of raising wages under the Arbitration Act has been to throw a number of “incompetent” workmen out of employment. Now, much the gravest case of this kind - the only case of any gravity in fact - has been that of the Auckland furniture makers. In that case some seventyfive men were “ suspended “ by their employers after the deliver)’ of an award raising the wages in their trade in Auckland to the level paid in the other large towns in the colony. Strong feeling was undoubtedly caused by this action of the employers. But what has been the outcome of it ? Less than ‘two months after the “suspension” all the men but fourteen are at work again ; the furniture trade is being carried on peaceably under the terms of the award ; and unionists generally admit themselves satisfied. lt is true, as we have been told, that Mr. Pember Beeves, as the author of the Act and Agent-General for New Zealand, is an interested party ; but we have had submitted to us various reports - including those prepared by Judge Backhouse and the “Victorian Factories Commission - and statements by gentlemen who have visited New Zealand, and who say that the Act has succeeded up to the present time, some of them asserting, rightly or wrongly, that that fact may be attributed to the prosperity which has prevailed in the Colony during the operation of the law. The fact that it has succeeded is a sufficient warrant for our attempt to pass a similar law, and if in framing this legislation we can meet the objections which have been urged in connexion with the operation of the law in New Zealand and New South Wales, we may succeed in passing an instrument that will serve as a model for the States, even if we do not, by the absolute justice and wisdom of the measure, induce the States to practically hand the whole matter over to us. Not only have New South Wales and New Zealand tried a measure of this kind, but the old countries of the world have been moving steadily towards the adoption of the same principle. We have been told of the observance of the principle of conciliation and arbitration in the old country. But some of the awards made in Great Britain go beyond voluntary conciliation. Honorable members know, of course, that a voluntary agreement is arrived at between the parties, but under that agreement they bind themselves down, in very many instances, to compulsory arbitration. In these circumstances settlements have been achieved. The honorable member for Melbourne Ports has said that there is no compulsory arbitration in Switzerland. I find, however, from various works, that there is a certain measure of compulsory arbitration under the Swiss Federal Government. They have taken the whole matter over from the Cantons, and they have some system under which every case comes before the final tribunal, and an award is given that can be enforced for a certain period. I cannot say for the moment whether the period is one of six weeks or of six months, but the enforcement of the award for a given period gives the parties an opportunity to settle down under it, and to . accept it as a final solution of their immediate difficulties. In the United States of America, as has been said, not much has been done in this direction ; but there, as pointed out by the leader of the Opposition, not only the workmen, but citizens generally, lack that confidence in
Courts of Justice which is so marked a feature of our life in Australia. I have not read of any part of the world in which the people have such confidence in appeals to Judicial tribunals as have the people of Australia. In the United States of America there is a total lack of any such confidence.
– The honorable member is speaking of the States tribunals.
– Yes. If all that we read on the subject be true, we cannot wonder at this lack of confidence in some instances. In the United States of America there is also a want of confidence in the Legislature itself, due to the fact that capital itself controls legislation. A writer who knows something of American legislation says that -
The prayers, petitions, protestations, and profanity of 80,000,000 of people are not half so powerful to influence and mould the decisions of the legislature sis the single voice of the chairman of one combine with 50,000,000 dollars at his back.
As the figures show, this remark was made some years ago. The population of the United States of America has grown from 60,000,000 to 80,000,000, and 50,000,000 dollars no longer represents the average capital of a combine. It is more likely to be 200,000,000 dollars or even more.” If some years back these combines could be seen exercising their baneful influence on legislation, and workmen felt that there was no chance of obtaining relief, what must be the position to-day, when the ramifications of these trusts are so much more extensive t The movement in the United States of America is not towards compulsory arbitration, yet in the direction of legislation to regulate these trusts. Here we have another instance that the trend of legislation is not to stop at what was achieved yesterday. The ‘tendency is to interfere more and more in the social relations of the people and the relations of Capital and Labour. I thoroughly believe that before long we shall find that the workman of America will insist upon having some legislation of this sort, if he can see a likelihood of obtaining a tribunal upon which he can depend. I have before me a reference to a book on American labour conditions, in which the writer says -
The bringing of women, children, and negroes in great numbers into the industrial arena, and the wholesale introduction of foreigners for cheapness sake, have, according to Mr. Brooks -
He is the author of Social Unrest - greatly intensified the bitterness between American employers and workers which produces so many great struggles in the United States. The miners have come to be so bad a lot, he declares, that the trade union destroys all discipline in the mines. “It is true,” he odds, “ that the presence of sixteen nationalities, many of them with, the lowest standard of living, is an extremely annoying fact, but the employing class has its definite responsibilities for the present quality of miners: Such as they are, they have been expressly encouraged to come in order to keep wages’ low.” The trades unions have endeavoured by the methods elsewhere employed to make a ring for. themselves within which the pressure of needy incompetent competitors could not make itself strongly felt ; especially they have limited the number of apprentices to each calling. This writer has not much faith in trades unionism or labour legislation as solvents of the present position, though he perceives palliating possibilities in them. The great developments of invention on the one hand, and the great aggregations of capital concentrated in immense undertakings on the other, keep the worker fighting against harder conditions all the time. He quotes a typical coal mine employer - “I have been in this business more than twenty -five years, and it seems to me that I have been in the strike business rather than the coal business.”
That is the testimony of a working miner in the United States of America. In these circumstances, the frequency of strikes, and the gravity and the concentration of wealth in the hands of combines, must sooner or later - and I think sooner than many expect - force the legislature to deal with this matter in somewhat the same direction, that we are attempting in this Bill. Another writer - I have not seen the book, but it is reviewed in the Times - Professor Ashley, in the Adjustment of Wages refers to the two ways of dealing with these matters in America and England. He says -
It looks as if it were true that Great Britain has reached a later- stage in industrial development. Great Britain has reached the stage in which wages are determined by negotiation between organized bodies of employers and employed. The problem before us here is to work out some principles for the guidance of these negotiators. America, on the other hand, seems to be just struggling on to the stage of corporate negotiation. Of course this opinion may be an old world prepossession ; it may be that America wil come to present a new type, corporate in its control of capital, individualist in its treatment of labour ; and the Steel Corporation will have many well-wishers in its experiment in this direction. But it is doubtful whether there is room enough in the industrial world for two principles quite so opposite ; and an evolution of labour conditions in the United’ States substantially similar to that of England still appears the more likely.
Professor Ashley goes on to show that in the four great States of Pennsylvania, Ohio, Indiana, and Illinois, where more than 125,000 men are employed in the coal mining industry, the system of joint agreement has worked satisfactorily for the last five years, and that capitalists have been glad to observe ‘it because it relieves them from the necessity of watching their competitors to see that they are not getting cheaper labour. It is a great thing to get rid of the haunting suspicion, which influences a manufacturer more than anything else in his determination not to increase wages, that a rival may be getting the better of him by paying lower wages than he pays. The Times review continues -
In the anthracite district for almost a quarter of a century the policy of ‘ ‘ freedom “ was given a fair trial, with the result that ‘ ‘ the whole mechanism of industrial remuneration was allowed to become antiquated and unbusiness-like. “ There is another port of Professor Ashley’s argument which should be mentioned .; the movement on the part of the men to federate is akin to and parallel with that of the employers’ to combine; “combination among workmen is only another form of that effort to lessen the disadvantages of competition in which they (the employers) themselves engaged “ ; and “there is no more reason for one railway to bid against another for freight than for one workman to bid against another for employment.”
Therefore we see, both in ‘England and America, this effort to carry the evolution further. It is many years since legislation was first introduced to facilitate conciliation. That legislation was, however, a dead letter. I. tell the honorable member for North Sydney, with whose views I am nearly always in accord, though on this occasion we are opposed to each other, that most of what he said about conciliation being sufficient has been proved by experience to be wrong. We were told a few nights ago that in New South Wales the ‘Assembly woke up one night, when dealing with the Estimates, to the recognition of the fact that for many years they had been voting money for the administration of a Conciliation Act, under which not a single case had been decided. It is only as the Conciliation Courts in Great Britain become more and more known, by their continuity of existence, or by some decision which is made binding in future disputes, that they become effective. In America, where all the main features of the competitive principle have been preserved, they are beginning to adopt collective or co-operative arrangements between employers and work-people, and they see in them better means of solving their difficulties than are available under the system of unrestricted competition. I take it that England and America will soon go further, and provide if not for compulsory arbitration by Government, by arrangements between groups of allied industries for the settlement pf disputes by compulsory arbitration. It is not quite correct to argue, as the honorable and learned member for South Australia, Mr. Glynn, did, that conciliation has been so successful in Great Britain that the disputes are becoming fewer and fewer. I have an epitome of the report upon the strikes and locks-out for 1902. The honorable and learned member quoted from that of the year 1901. It must be recollected, however, that the population of Great Britain is constantly increasing, and that the number of workpeople is constantly increasing. Moreover it is not enough to say that there have been so many disputes in so many trades, unless you say how many men were interested. The Times states that the number of separate labour disputes in 1902 was fewer than in the preceding four years - 1898 to 1901 - but that the number of work-people affected was larger than in any of those years. The labour organizations and the workshops are both growing larger year by year, so that, although disputes may be fewer than in previous years, the number of men involved is larger. It is also stated in the Times that -
In 1902 the number of work-people directly engaged in disputes in which they were successful (36,917) was larger than the number of those engaged in disputes in which they were entirely unsuccessful (35,515) ; while the number directly affected by disputes which resulted in compromise (41,645) was larger than either of the other two heads.
The honorable member for North Sydney made out a good case for his statement that Courts of Conciliation and Arbitration in Great Britain are doing good work. But if we adopted anything of the kind here it would require a period of a score or two years of growth before it became effective. Even then it would probably not succeed so well as it has succeeded in England, because there they have been able to obtain the assistance . of great public men, who have been able to ease the difficulty at a time of the severest strain. Men like Earl Rosebery, Mr. Asquith, and Sir Courtney Boyle have settled disputes in this way. Our efforts should be in the direction of inducing conciliation by compulsory legislation. Ibr some reason or another there has been a signal failure in New Zealand to make use of the conciliation provisions of the law. In New South Wales we made a great mistake in not providing for conciliation. The- Arbitration Court must become congested unless you can eliminate cases which can be easily ‘settled from those which turn upon some great principle requiring the intervention of the highest authority.
– The Bill provides one Court for both Conciliation and Arbitration.
– Yes ; but it goes further than any other in regard to conciliation. In my opinion, however, it does not go far enough in that direction. I do not wish to refer to all the reports which I have here on the subject of the American Civic Federation, but all the workmen’s representatives who accompanied Mr. Moseley on his commission speak of it approvingly. Some of them express their approval very strongly, while others are milder in their statements. It has one point of difference, however, from the English system, and from anything that has been adopted in Australia, and that is the recognition of the right of the general public to be represented. The public has an interest in all these disputes. In a Court of Arbitration it is represented by the Judge or the President of the Court. But in regard to conciliation, we might very well adopt the system adopted by the American National Civic Federation, under which the public are represented by well-known men - men of good repute and experience, such as I am sure we can find in Australia - to act as honorary magistrates, and form a buffer between the two contending parties. I think that more good can be obtained from such an arrangement than by bringing the two parties together, and allowing them to appoint . an umpire, or compelling them to accept the intervention of the Registrar of the Court. In every strike the public has as great, an interest as the immediate parties, and it would be a good thing to be represented by men of proved character and experience, who would act magisterially, and endeavour to get rid of the difficulty. Conciliation is the end to be kept in mind. I differ from the honorable member for North Sydney in his opinion that we do not require compulsory arbitration. We need compulsory arbitration to induce the parties to agree to conciliation. I do not think we can induce them to do that unless they know that if conciliation fails they must go to the Arbitration Court. But if we provide for methods of conciliation in which the parties will have confidence, they will be made use of more and more, and the Arbitration Court will be used only in. exceptional cases to decide some great principle or some very serious dispute. I consider the faults of the Bill to be very grave. Although I am not a lawyer, I am of opinion that its provisions overstep the Constitution, and will inevitably produce friction with the authorities of the States. I agree with the honorable member for North Sydney that they must at times overlap State legislation. I cannot see the need for these provisions.
– We must meet every emergency.
– We should not go beyond the power conferred by the Constitution. To my mind the Bill does that, and in doing so will irritate the States, and will place the people of the Commonwealth in a position of great difficulty. The honorable member for North Sydney, however, has gone into the matter so thoroughly that I need not deal with it again. Clause after clause gives the Court power to interfere with every little industry in the Commonwealth, whether it is under State legislation or not. These are powers -which are required in some degree. Such powers are required, for instance, to deal with maritime difficulties. But in committee I shall try to see that it is provided that no interference with State legislation shall take place until disputes have boiled over and extended from one State to another, because it is only then that the Federal Government ,’has a right to interfere. The Bill drafted by the right honorable and learned member for South Australia, Mr. Kingston, who has given up a large portion of his life to the subject of the settlement of industrial disputes, is one which is worthy of our best consideration, and if power had been given us under the Constitution to settle all labour disputes occurring in the Commonwealth, I have no doubt that the Bill would have proved a very admirable measure. However, we have not that power. The States do not think we have it, ‘ they have made other- and effective arrangements to deal with such matters, and I am afraid that we should get . into no end of trouble if the Bill were passed in its present form. It would increase the number of difficulties and would create litigation. It would induce those who were engaged in disputes to divest them of their local character, and, in order to bring them within the Federal jurisdiction, give them a wider application. I had intended to refer to some of the details of the Bill, but I find that I shall not have time. to do more than refer to the provisions relating to the constitution of the Court. I am strongly of opinion that a Court consisting of a President and two representatives, one of the employers, and one of the workmen, is not the very best that we could have. Certainly it would be an improvement upon that created in New South Wales. There the representatives of the employers and the workmen are elected by those/ bodies, but under the Bill it is proposed that they should be selected by the Governor-General in Council from those who are nominated by the trades organizations.
– That is the same thing.
– No, it is somewhat different. At the same time I admit that it will be impossible to ignore the fact that the parties to industrial disputes will look upon these gentlemen as their barristers. There is even worse danger to be apprehended, because power is given to the President of the Court to appoint other special Judges to deal with special cases. That would open the door to grave abuses, because if it came to the question of appointing special Judges to deal with a great maritime strike or a great shearers’ strike, no doubt pressure would be brought to bear upon the Government to select a certain class of men for the positions. We should entirely -eliminate from membership of the Court any persons who could be in the slightest degree interested in disputes. We do not -require special Judges to represent the plaintiff and the defendant in trying ordinary cases in the Law Courts, and the best plan would be to constitute a Court of three Judges to be appointed >by the Governor-General in Council for life, or during good behaviour, and irrespective of whether they represented one party or the other. In connexion with this question I might point out that an employer has to. submit all his books and documents to the Court No ordinary manufacturer would object to presenting his books and documents to a bond fide- Judge, but he would be very strongly averse to laying his business affairs bare to a representative of the other side. I shall take an opportunity of moving an amendment with reference to the framing of the awards -of the Court. It is sometimes contended that arbitrators, not being governed by law or principles, have a disposition to “ split the difference “ in order to arrive at a verdict approximately satisfactory to both sides. The demands of one side or the other might be wholly unwarranted, and if it became the practice to split the difference, extravagantly high- demands or offers notoriously low would be encouraged. I intend to propose that if the parties go through the form of conciliation they shall, before the conciliatory stage is over, each make an offer with a view to arrive at a compromise. If the matter ultimately goes to arbitration, these last offers should be filed in the Court as documents in the case, and when the Judge is called upon to make his final award, he should have power to adopt only One or other of the offers.
– Even though both were unjust 1
– They could not . both be unjust from one point of view, but I should not mind giving him the power to decide otherwise, if he thought it absolutely necessary. Most honorable members must see that there is always a tendency to get rid of these oases by splitting the difference, and that the effect of that is not at all salutary. So long as that principle is allowed to operate, the two parties must be forcedmore widely apart. The workmen are encouraged to ask too much and the employers to concede too little. But if the principle I advocate were adopted, the workmen would naturally conclude that if they mode too great a demand the Court would adopt the employer’s offer,. and, on the other hand, the employer would recognise that if he did not make a reasonable offer the demands of the men would probably be conceded. This would have the effect of making the parties come more closely together - so closely- that it would not be worth while to further trouble, the Court with their .disagreements. It is with great satisfaction that I admit that I am a strong supporter of the principles of this measure, and it is with ‘some reluctance that I find that I shall’ have to oppose some of its provisions in Committee.
– I suggest that the debate might be adjourned at this stage.
– As it would be unfair to the honorable member to break what has been an established rule, I shall not, without notice, refuse to-night to accede to his request. I must, however, point out that it will be impossible for the debate to proceed upon the present leisurely lines if it is to be brought to an early conclusion. If every honorable member intends to address himself at length to the motion for the second reading of the Bill, we must’ be prepared to sit later.
Debate (on the motion by Mr. Watkins) adjourned.
House adjourned at 10.35 p.m.
Cite as: Australia, House of Representatives, Debates, 25 August 1903, viewed 22 October 2017, <http://historichansard.net/hofreps/1903/19030825_reps_1_16/>.