House of Representatives
21 June 1904

2nd Parliament · 1st Session



Mr. Speaker took the chair at 2.30 p.m., and read prayers.

NAVIGATION COMMISSION.

Mr. JOHNSON. - I wish to ask the Prime Minister whether, in view of the apparent general lack of confidence in the impartiality of the Royal Commission to be appointed to inquire into the working of the proposed Navigation Bill, it is the intention of the Government to make additional appointments of expert representatives esentatives of commercial, business, and shipping .interests, who are not members of Parliament.

Mr. WATSON.- The question of the composition of the Commission has received a good deal of consideration at the hands of the Government. We desired at first to appoint a small Commission, ‘ excluding members of Parliament ; but, having reviewed the names of those who seemed to be available, it was felt that it would be impossible with a small Commission to obtain the representation of each of the six States which we think necessary, since all the States have an interest, though some to a larger extent than others, in the conduct of navigation and the laws which govern it. Therefore we have felt constrained to fall back upon the services of members of Parliament. I have not heard complaints as to the possible partiality of the Commission. Yesterday I was waited upon, first, by a deputation representing the Chambers of Commerce, and, afterwards, by a deputation representing the Employers’ Union of Australia, in regard to the proposed Commission, but no member of either body made any complaint as to the likelihood of partiality being shown by those whose names have been suggested. I was asked if the Government could not see their way to add the names of some persons who are not members of the Parliament, in order to give a fuller representation of the commercial md shipping interests affected. We considered the matter in Cabinet last evening, and after looking at every phase of it, came to the conclusion that the Commission as outlined by the Minister of Trade and Customs will be sufficiently representative of all the interests concerned, and that, therefore, there is no need to add fresh names. As honorable members are aware, there are in the list of those whom we propose appointing at the next Executive the names of two gentlemen both closely associated with ordinary commercial transactions, one having a special knowledge of shipping matters, and the other representing a country producing district, while several others are associated with the shipping interest. Having considered the matter from all points of view, we think that we have secured such a Commission as will command confidence outside in its impartiality, and will have sufficient knowledge of details to be able to collect evidence upon which to found a report for the information of Parliament.

Mr. KNOX. - Does not the Prime Minister think that the amendments of the Conciliation and Arbitration Bill of which he has given notice will, if thev are agreed to by the Committee, remove one of the most important purposes, if not the main object, of the Commission?

Mr. WATSON. - The view of the Government is expressed by the fact that I have given notice of my intention to move the insertion of those provisions in the Conciliation and Arbitration Bill. In our opinion, the matter is one of policy, and not a proper one to remit for the consideration’ of the members of the proposed Royal Commission; but apart from those provisions which relate to the conditions under which foreign-owned vessels, or other vessels not owned in Australia, shall be allowed to enter our coastal trade, there are debatable matters affecting the carrying on of maritime ventures generally which are of sufficient importance to necessitate the appointment of a Commission of inquiry. There will remain for the investigation of the Commission the whole question as to the proper safeguarding of the lives of passengers and crews who travel on vessels carrying passengers) the arrangements for life saving, and details of that character, together with important matters^, such as bills of lading, affecting more particularly the commercial community. As the honorable member for Kooyong may remember, during the discussion of the matter by the Chamber of Commerce, a very important speech was made by a gentleman who, although he occupied a long time in pointing out the deficiencies of the Navigation Bill, did not once touch upon the question just referred to. Consequently in his view, at any rate, there is need for the inquiry we propose.

Sir JOHN FORREST.- I do not in the least degree desire to question the impartiality of those who are to be appointed members of the proposed Navigation Commission, because we have no evidence that they will act otherwise than impartially; but I wish to ask the Prime Minister, without notice, if it would not be better, in order to make the Commission as representative as possible, to appoint some one connected with the navigation and shipping interests of Western Australia. The honorable member for Fremantle, for instance, would certainly be a move suitable representative than the senator of that State who is to be appointed, but .who is a miner.

Mr. Carpenter. - I am quite satisfied with the gentleman referred to.

Sir JOHN FORREST.- With every respect to the senator in question, he’ can scarcely, I think, be considered a representative of navigation and shipping interests. Could not the Prime Minister see his way to give to the State of Western Australia more direct representation of its shipping and navigation interests upon the Commission ?

Mr. WATSON.- If any representations of a weighty character as to Senator de Largie not being a satisfactory representative were made from Western Australia, the Government would consider them ; but I can assure the right honorable member that that gentleman has, for the last three years, to my knowledge, acted as the representative of the maritime unions of Western Australia, while for a much longer period he has taken a deep interest in all matters connected with navigation. As a senator, he represents not merely the mining interests, but all interests in Western Australia, so that I think that, no sound objection can be taken to his appointment on the ground that . he will not represent the , shipping interests. The honorable member for Fremantle, I know, feels that the interests of that port are quite safe in the hands of Senator de Largie.

Mr. GLYNN. - The Prime Minister has stated that the amendments in the Conciliation and Arbitration Bill as to navigation of which he has given notice, involve a question of policy, which it would be undesirable to remit to the proposed Commission. I wish to know, therefore, whether, if it could be shown before the Commission that a ring of InterState shippers exists whose object is to unduly raise Inter-State freights, the fact would not affect the policy of the Government. Does he not, on consideration, think it advisable to submit the question to the Commission?

Mr. WATSON.- I do not. The question of how far the Arbitration Court may go in applying the power we propose to give to it is a matter for its consideration. We propose, as a matter of policy, to emphatically -and unmistakably empower it to applv to foreign-going vessels which seek to trade upon our coast conditions similar to those imposed upon Australian vessels, if it deems it advisable to do so, and we do not think that that can be done without the insertion of the proposed new clauses. If we lay down conditions under which local ship-owners shall work, the Court will have power to extend them to foreign competitors who seek to enter the field.

Mr. McCay. - That is not the way in which the amendments are phrased.

Mr. WATSON.- I think it is. They are intended to give the Court power to do what I speak of.

Mr. Glynn. - Would not the proposal to delegate that power be affected by the existence of shipping rings?

Mr. WATSON.- I do not think so. It is a question for the Court to determine.

Mr. McCay. - Does the Government intend that it shall be left to the Arbitration Court to determine whether its awards shall or shall not extend to ships other than British ships trading solely between Australian ports? If that is the intention, will not the proposed amendments require amending ?

Mr. WATSON. - I do not think so.

Mr. SPEAKER. - I thought when the Prime Minister referred to this matter that he was going almost beyond the limits of an answer to a question, but not so far as to demand my interference. I cannot, however, allow the policy of the Conciliation and Arbitration Bill, or matters affected by.it, to be discussed now. Such discussion must be reserved until the Bill is in Committee again.

page 2468

QUESTION

VISIT TO H.M.S. EU RY ALUS

Mr MCDONALD:
KENNEDY, QUEENSLAND

– Are honorable members to be allowed to take their wives with them on Thursday next, when visiting H.M.S. Euryalus?

Mr WATSON:
Prime Minister · BLAND, NEW SOUTH WALES · ALP

– The Minister of Defence regrets that it is not possible to provide for the visit of other than members of the Parliament. It is felt that a large number of honorable members may take advantage of the opportunity to visit the flagship, and, in order that there may . be a proper explanation of the various technical matters to be brought under their attention, it is thought undesirable to allow other than members to go on board.

page 2468

QUESTION

ECHUCA ELECTORAL ROLL

Mr HUME COOK:
BOURKE, VICTORIA · PROT

asked the Minister of Home Affairs, upon notice -

What steps are being taken to insure that an accurate electoral roll will be compiled for the Electoral Division of Echuca?

Mr BATCHELOR:
Minister for Home Affairs · BOOTHBY, SOUTH AUSTRALIA · ALP

– The answer to the honorable member’s question is as follows : -

An arrangement has been concluded with the Government of Victoria, under which the police will be employed in perfecting the Commonwealth electoral roll for that State. The necessary instructions are now being prepared, and will be issued this week.

page 2469

QUESTION

MILITARY RANK AND SERVICE

Mr CROUCH:
CORIO, VICTORIA

– In asking the Minister representing the Minister of Defence, upon notice -

Whether, in view of the decision of the Government not to recognise military rank off parade, the Minister of Defence will cause to be cancelled the following regulations, applying to the Militia and Volunteer Forces, made under the Defence Act 1903 : -

Part II., clause 19 - “ Warrant officers, noncommissioned officers, and men will salute all commissioned officers whom they know to be such, whether dressed in uniform or not.”

Part V., clause 31 - “A member of the Citizen Forces shall be considered to be on duty although not in uniform.”

I wish to add that on 1st March last I wrote to the Minister of Defence inquiring whether he was prepared to cancel these regulations, but received no reply.

Mr WATSON:
ALP

– I have been supplied by the Minister of Defence with the following replies: -

  1. Part II., clause 19, is not a regulation; it is only an order, and it is intended to amend the order, so that members of the Citizen Forces, when not in uniform, will not be compelled to salute.

    1. Part V., clause 31. - It is considered this regulation should be retained, as it provides that a member of the Citizen Forces shall be considered to have been on duty, although not in uniform, in respect of any act done, or omitted to be done, by him in a military capacity only, or with intentional reference on his part to his military capacity.

page 2469

QUESTION

MILITARY UNIFORMS

Mr R EDWARDS:
OXLEY, QUEENSLAND · PROT; FT from 1913; ANTI-SOC from 1906; LP from 1910

asked the Minister representing the Minister of Defence, upon notice -

  1. Whether a sum of 30s., which was passed on the last Estimates towards each officer’s uniform, will be paid to officers this year?
  2. Whether Brigadier-General Gordon has directed that these sums shall not be paid as passed by Parliament, and, if so, why ?
Mr WATSON:
ALP

– I have been supplied by the Minister of Defence with the following replies : -

  1. The regulation does ‘not provide that this sum shall be paid to officers. The General Officer Commanding, who drafted the regulation, considers that the permission for officers to draw the amount of their clothing allowance should rest with the officers commanding regiments and corps ; and that it is most inadvisable that an officer should look upon this allowance as his own property. The allowance will, therefore, be paid’ in such cases as the commanding officers may recommend. 2: Brigadier-General Gordon did not direct that this sum should not be paid; but he issuer’ instructions in accordance with the direction 01 the General Officer Commanding, as stated above.

That regulation, I desire to add, does not appear to the Minister to be satisfactory, and he is having the same reconsidere’d.

page 2469

QUESTION

DUTIES UPON SHIPS’ STORES

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

asked the Minister of Trade and Customs, upon notice -

  1. What was the total amount of the duties collected throughout the Commonwealth during the year 1903 upon ships’ stores?
  2. In view of the irritation which, it is al leged, is felt by the mercantile community in consequence of the ^collection of duties upon ships’ stores, and the comparative insignificance of the amounts collected, will the Government consider the advisability of not insisting upon the collection of such duties in future ?
Mr FISHER:
Minister for Trade and Customs · WIDE BAY, QUEENSLAND · ALP

– The answers to the honorable member’s questions are as follow : -

  1. The total amount collected on ships’ stores throughout the Commonwealth during 1903 was £23,102.
  2. The amount shown as collected is not insignificant. As the. law and regulations stand at present, there is no power to exempt from duty. If exemption be granted in the case of oversea vessels, such exemptions should, as a matter of justice, apply to all Australian ships, and to allow this would involve serious loss of ‘ revenue. There is no difficulty now experienced or irritation caused in the collection of this duty, and the liability to- duty of ships’ stores is now well understood and provided for. There is no intention of making any alteration in the existing practice.

page 2469

QUESTION

VICTORIA BARRACKS, SYDNEY

Mr KELLY:
WENTWORTH, NEW SOUTH WALES

asked the Minister of Home Affairs, upon notice -

Whether the committee has been appointed, or ordered to be appointed, to consider the relative merits of the barracks sites proposed in lieu of the present site at Victoria Barracks, Sydney ; and if the committee has been appointed, whether there have been any sittings of such committee:

Mr BATCHELOR:
ALP

– The answer to the, honorable member’s question is as follows : -

I am not aware of the appointment of anv committee for the purpose indicated.

page 2469

CONCILIATION AND ARBITRATION BILL

In Committee (Consideration resumed from 17th June (vide page 2466) :

Clause 46 -

The Court shall, as regards every industrial dispute of which it has cognizance, have power…..

Mr ROBINSON:
Wannon

– I crave the permission of the Committee to make a personal explanation. On Friday last. I made a statement which was contradicted by th-s Prime Minister, as to the attitude taken up by the Government with regard to clause 27. Since then I have had an opportunity to peruse Hansard, and I find that the statement which I then made was absolutely correct. At page 2256, the Attorney-General is reported to have made observations which benr out my statement.

Mr Watson:

– But the honorable and teamed member accused me of having made the statement.

Mr ROBINSON:

– I shall come to the statement made by the honorable gentleman. At page 2261 the Prime Minister is reported, to have interjected, in the course of a speech made by the honorable and learned member for Bendigo, in opposition to an amendment proposed by (he Government, that the non-insertion of the words in question - may limit those powers, and- that is what the honorable and learned member is striving after.

This shows that the Government have charged at least one honorable and learned member who is favorable to the Bill, with endeavouring to limit it. At page 2270 the Minister of External Affairs is reported to have said -

This clause proposes to confer an authority which appears to me to be essential to any satisfactory working out of the measure.

I do not wish to refer at greater length to the matter, my desire being only to show that, when I informed the Committee that my recollection was that members of the Government had said that a certain amendment was necessary for the proper working of the Bill, and had charged those who opposed it; with a desire to injure the measure, I made a statement that was absolutely correct.

Mr Watson:

– But the honorable and learned member said much more than that.

Mr EWING:
Richmond

– I move-

That after the word. “ direct,” line 4, the words “with. due regard to local circumstances,” be inserted.

This amendment deals with what is really the difficulty underlying our consideration of the Bill. The varying conditions of Australia are at the root of all our troubles, and will probably render nugatory everything that we are doing in this direction. It is specifically provided in sub-section xxxv. of section 51 of the Constitution that our power to legislate with respect to this subject is to provide for -

Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.

When the Constitution Bill was before the people, it was not believed that in the course of two or three years the Federal Parliament would be availing itself of this provision to legislate in the way now proposed. The people regarded it from a national stand-point. They could view it only in that way for the reason that most of the States had already passed legislation dealing with conciliation and arbitration, and that all matters not expressly handed over to the Federal Parliament were to remain under the control of the States Legislatures. It was felt, however, that strikes or disputes extending beyond the limits of any one State might possibly occur, and that it was therefore necessary to give the Federal Parliament this power. They knew what had happened in the United States and other unions where States had not been sufficiently powerful or perhaps sufficiently loyal to deal with disputes between employers and ‘ employes, and it was felt that on rare occasions there might be reasonable opportunity for the exercise of this power by the Commonwealth. But in what way is this Constitutional provision now regarded? I appeal to the Prime Minister to say whether it has not been made clear by almost every speech made by Honorable members opposite, as well as by the apprehensions expressed by honorable members on this side of the House, that the object of the Government is to bring the control of almost every industry in Australia under the Federal Parliament. We are agreed as to the necessity to provide for the application of a common rule, because it would be practically impossible for a Federal Arbitration Act to work effectively in the absence of such a principle ; but the power is a dangerous one. I would ask honorable members representing the distant States to consider for a moment how the principle of the common rule is likely to affect their constituents. Every speech made by honorable members opposite points to the desire on the part of the Government that there shall be uniformity of control in- regard to all industries, and that that control shall be exercised by the Federal Arbitration Court.

Mr Watson:

– What does the honorable member mean by uniformity - a uniform method of treatment?

Mr EWING:

– Uniformity as far as will be permissible, having regard to local conditions. Instead of dealing with this question in abroad way, so /that the Court would be called upon to deal only with disputes so far-reaching in their effects that they could not possibly be dealt with by a State Arbitration Court, it is proposed to give the Court power to deal with such questions as the way in which a man shall work at Marble Bar, hop-picking in Tasmania, or rearing calves in Gippsland. All these matters have been referred to during the debate as being of vital importance. It was never intended by the framers of the Constitution, nor was it believed by the people when they approved of the Bill, that such matters should be dealt with by the Federal Court, and I trust that honorable members will make the provision in regard to the common rule as wide as possible. I have already directed the special attention of the Committee to this matter, and I trust that when clause 46 is recommitted, it will be dealt with drastically. We all must realize the serious consequences that would follow the placing of the intelligence, industry, and vigour of the country in shackles; the Government doubtless do not desire that such shall be the effect of the Bill. Honorable members- opposite recognise as fully as I do the wisdom of preserving, as far as possible, to the persons concerned, all the inducements and rewards of enterprise and industry. But what do the Government propose ? We are to have a common rule applying probably to Western Australia and Tasmania, and honorable, members from the first -named State, as well as those others who represent the workers in the outlying portions of the Commonwealth, should beware of the pitfall before them. The whole labour movement is apparently under the control of labour organizations, which, while giving fair consideration to questions closely identified with city workers, overlook the work which men have to perform in rural districts. The specific troubles and necessities of these workers have never received the special consideration of the labour movement as we know it. Workers in outlying districts are, however, represented here, and, although I have that interest in labour which every honorable member must possess, because without labour we can do nothing, I feel convinced that, if we employ the ‘ word 1 ‘ industry 1 ‘ in its broadest sense, so as to cover outlying portions of the Continent, we shall have a serious awakening. I will offer a simple example. Take the two States of Western Australia and Tasmania. Let us imagine three above-ground miners in the State of Tasmania discussing the question of wages and working conditions. The following is what may happen : - I will suppose that the three miners are named Smith, Robinson, and Conroy. In Tasmania the wages of an above-ground miner are £1 16s. a week. Suppose that Smith is satisfied with those conditions. He works eight hours a day, has plenty of time to go to meetings and to vote 1 he party ticket at election times, has opportunities to smoke, and is generally quite comfortable. But Conroy and Robinson, though ho better workmen than is Smith, are strong individualists, and desire to devote their strength and ability to the purposes for which they were given to them - for the good of their country and the betterment of their own- condition. Robinson says that he understands that the wages paid to a miner in Western Australia are £4 per week. Therefore, while Smith resolves to slay- where he is, Conroy and Robinson determine to go to Western Australia. Accordingly, they go. After a lapse of two or three years, a letter comes to the little township in Tasmania where Smith is still residing. The letter is from Robinson, who, amongst other things, tells him that wages are still £4 per week where he is working ; but he also describes the dreadful conditions under which men have to work in some parts of that State. Probably some honorable members are familiar with the conditions that, prevail in Western Australia. The right honorable member for Swan knows all about them, because he created the State, I understand ! Some distance away from the ocean, even the eucalyptus dies out. and then there is nothing but the great Western Australian deserts stretching eastwards. Conroy and Robinson, according to the letter of the latter, went out into the desert, carrying their swags. Eventually, Conroy dies at a soak - a large granite outcrop surrounded bv sand. The water which collects on this granite outcrop sinks into the sand alongside and there is generally water to be found there under all circumstances. Conroy expires bv the side of a soak very far from the beautiful streams of Tasmania; and as this brave individualist is dying, his imagination brings back to him visions of the bosky dells and rivulets, and the cool southern winds that blew upon him in his native State. He dies.

Mr Glynn:

– The “ common rule “

Mr EWING:

– Yes, and there is no appeal against it. Western Australia is littered by the bones of brave pioneers. The great gold-fields of that State were not discovered by- men who believed that patriotism is limited by faith in a union, or that the only thing worth considering in a country is what the Government will do for a man. Smith, learning that Robinson is earning £4 a week, says to himself, “ This man is doing exactly the same kind of work as I am doing, and is getting £4 a week for it, while T am getting only 16s. I shall have to look into this matter..” But he forgets that all through tha letter Robinson speaks about the dust-storms and the hot air of Western Australia. The dust-storms in some parts of that State are so severe that it is impossible to tell a unionist from a nonunionist 50 yards away ! We will suppose that Smith, being dissatisfied at this difference in wage, asks an official to work up a dispute. Here we come to the point. We have in Australia one man working for £1 1 6s. a week, and another man doing similar work for £4 a week.

Sir John Forrest:

– Those are ordinary miners’ wages ; I think that above ground men get a little less.

Mr EWING:

– No, I am informed that at Kimberley, and at times at Coolgardie, wages go up to £4 a week. I am taking the statistics furnished to me by the statist. Evidently some factor has to be taken into consideration when there are such differences between wages. What is that factor? Do, honorable members think that the Judge of the Arbitration Court will take into account the question of temperature? Will he consider whether a miner perspires in Tasmania, or lathers in Western Australia? Will he consider whether the heat of the sun is greater at one place than at another? I have heard honorable members say that the Judge will consider only what is a living wage in one part of Australia, as compared with what is a living wage in another part. I believe that this is all the difference in conditions which any Judge can consider.

Mr Page:

– But what- of climatic conditions ?

Mr EWING:

– They cannot enter into consideration, because one man may like a hot place, whilst another may prefer a cold place. I believe I have heard the Prime Minister state that his idea in reference to varying circumstances and conditions is that the question of the living wage in the various places where men are employed should be considered. Beyond that it is impossible to go. I will, by means of a few figures, show what will happen, find would ask honorable members who represent country districts to remember that it is not possible to ascertain the cost of articles in all portions of a State. It is sufficient to ascertain the cost in the capital city. If we add on railway freight, we shall find approximately what is the cost of articles at any place in that State. For instance, in the’ case of Tasmania, we can take the cost of articles at Launceston and Hobart, and by adding the cost of freight to any part of the island, ascertain fairly well what would be the cost of those articles at those places. In the case of Western Australia, take the cost at Perth, . and by a similar calculation ascertain what is likely to be the cost at Coolgardie, Kalgoorlie, Southern Cross, or Bulong.

Mr Page:

– It is possible to buy goods at some places in Queensland cheaper than they can be bought at Brisbane.

Mr EWING:

– I cannot discuss a ques-: tion of this kind in all its details. It is sufficient to say. that the cost of any article - certainly of food - in any part of any community, may reasonably be taken to be the price of that commodity in the capital, plus the freight to any place where the goods are consumed-

Mr Page:

– Foodstuffs and drapery are cheaper in Charters Towers than in Brisbane.

Mr EWING:

– Then somebody has made a mistake.

Mr Page:

– We conduct our affairs on business lines in Queensland, just as people do in New South Wales.

Mr EWING:

– It is curious if it pays a man to go from Brisbane to Charters Towers to buy a shirt. That illustrationwill convey to the honorable member’s mind the absurdity of the statement. It is absurd to suppose that goods could be conveyed from Brisbane to Charters Towers and be purchased cheaper at the end of the journey.

Mr Page:

– Goods are imported direct into Townsville.

Mr EWING:

– I was perhaps mixing up the varioustermini ; but I will now take Townsville as an example. Does the honorable member say that if an article is produced at A, and freight is paid to B, the article ought to be purchased at the same price at B as at A ?

Mr Page:

– I will give an instance; goods can be sent, to Townsville from Sydney as cheaply, as from Sydney to Brisbane.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– The exception proves the rule.

Mr EWING:

– As the honorable member for North Sydney says, “ the exception proves the rule.”

Mr Page:

– Tell the truth.

Mr EWING:

– The truth in broad principles is at all times essential, but it is not always essential to go into details; in other words, the point is not worth arguing. But to come back to the contrasted wages of £1 1 6s. and £4. I instance beef, mutton, bacon, and butter, in order to be absolutely fair, having regard to the fact that the difference in the price of these articles will be as great as a difference can be ; tea, calico, and articles of that kind would not, by reason of the freight, be subject to the same variation in price. I find that in Perth the 2 -lb. loaf is 3½d., whilst in Launceston and Hobart it is 3d. In Perth, beef is 7d. to 9d. per lb, as against 5d. per lb. in Launceston and Hobart.

Mr Cameron:

– The honorable member is quoting wholesale prices. .

Mr EWING:

– I am quoting figures from the statistical record. Honorable members may argue with me, but I am sure they will not argue with Coghlan - that, of course, is impossible. Mutton, in Perth, is 6d. to 8d. per lb. ;,how much would it be in Tasmania?

Mr Cameron:

– Retail mutton is 5d. or 6d. per lb.

Mr EWING:

– In Perth bacon is1s. to 1s. 2d., as against lod. in Tasmania. . In Perth butter is1s.1d. to1s. 8d.. a lb., as against is. in Tasmania. Honorable mem bers will see that I instance perishable articles in order to give them the full benefit. If we investigate these figures we find that the difference amounts collectively to about 17 per cent. ; and a Judge sitting in an Arbitration Court would say to the man who was receiving £1 16s. per week - “ You ought to be getting 7 s. per week more, or £2 3s.” Here we have the case of a man who, having taken into full consideration the cost of living, works for £2 3 s. a week, while other men elsewhere receive for the same work,£4 per week. Obviously, what must happen? If there be a common rule, it is clear that the man who receives£4 a week must suffer a considerable reduction in wages. The Western Australian would suddenly discover . that his representatives, instead of fairly representing him, have absolutely sold him - I do not use the word harshly - to the organizations on the eastern seaboard. All men who are doing work in the outlying parts will find themselves within the iron grasp of the common rule, and wages in Western Australia and Northern Queensland must be forced down.

Mr Thomas:

– Does the honorable member really believe that?

Mr EWING:

– Unless there was something behind democracy - a good deal more intelligence than we are accustomed to contemplate in some portions of this House - I should believe it. The country is not living on legislation and trades unions, hut on its resources - on what the people can do with those resources. Every other country in the world is stimulating industry and invigorating ability ; giving rewards to men who, with their lives in their hands, go exploring, either practically or in the field of science. In the Commonwealth we seek to bind the whole of the people down to one common rule.

Mr Mauger:

– Who says that ?

Mr EWING:

– This legislation says so.

Mr Mauger:

– Nothing of the kind.

Mr EWING:

– And it is what the honorable member will say if he votes for this clause.

Mr Mauger:

– It is the honorable member’s own imagination.

Mr EWING:

– The honorable member for the Barrier asked me whether I believe what I say. There are a few things we believe; we believe that everything in the world worth doing is done by men who use all the ability and strength Providence has bestowed upon them. People who live in comfoit are enabled to do so because of the enterprise and industrv of those men.

Mr Mauger:

– Since the honorable member changed his seat he has turned a regular Tory.

Mr EWING:

– No, I have not.

Mr Thomas:

– The honorable member used to speak quite differently.

Mr EWING:

– I have not altered my principles in the very least. I believe in arbitration; but the best course for us is to legislate wisely. Honorable members seem to wonder that we should be interested in seeing that men who work in the country receive full return for their labour’; but let us try to imagine the establishment of a common rule in England or Canada. Men go to the Klondyke for what they can get ; they throw into the scale their strength and match themselves against nature, with the result that some succeed and others fail. These are the men who make a country ; and it is just the same in South Africa and Western Australia. The men who developed Western Australia were far away from any common rule; the Government could do nothing for them, and there was no hope of the Government doing anything. The result in Western Australia is one in which we are all interested, seeing that there has been found the richest mile for gold in any country in the world. We hear a great deal about labour, but there is a greater and much rarer thing than labour, and that is ability.

Mr Mauger:

– That is what Mallock says.

Mr EWING:

– And I think that Mallock is frequently right. I guarantee that if the honorable member had two sons, one broad-backed and thick-headed, and another who was of keen intellect, he would value the latter most. And so, all through life, it is ability which is valued every time.

Mr Watson:

– I accept the amendment.

Mr EWING:

– Is the honorable member for Perth aware that railway porters iri Western Australia get 14s. per week more than is paid to railway porters- in Tasmania, and that the wages of signalmen in Western Australia are 15s. per week higher?

Mr Fowler:

– I am aware that the wages in Western Australia are much higher than elsewhere.

Mr EWING:

– I am endeavouring to make it clear that, in almost every industry in outlying places, high wages are paid, miners in Western Australia receiving nearly three times as much as do miners in Tasmania. Through you, Mr. Chairman, T ask the honorable member for Perth how he, as a representative of the Western Australian miners, can support a common rule, made for the benefit of men on the eastern seaboard and the big cities, if, by so doing, he sacrifices his own constituents ?

Mr Fowler:

– I have already spoken against the indiscriminate application of the common rule.

Mr EWING:

– And voted for it. ‘

Mr Fowler:

– No.

Mr EWING:

– I think the honorable member will find that a number of us who are in. favour of arbitration, .and believe that no arbitration is possible without a common rule, are on right lines when we argue that these matters ought to be left to the States. The inhabitants of the States are not savages. Before we entered this Parliament many of us were representatives in the States, and the men we have left behind may be as competent as we are. Let us- leave fo Western Australia or to Tasmania the wages which shall be paid to the men in those States. We have set out on the work of Federation with an evident desire to stick our lingers into everything, and honorable members representing .outlying places will find that the unions. of the eastern seaboard will dominate their constituents, and that the common rule will work out badly in country districts. When I visited Western Australia the right honorable member for Swan offered to do what he could in order to make my trip as- pleasant as possible. But-I did not go there for pleasure; I went to see the country and what sort of men were there. No man visiting Western Australia can fail to be struck with the types of vigorous manhood whom he meets - square-chinned, sinewy, able men, who have gone there, not for trades union purposes or for scenery, air, or exercise-

Mr Thomas:

– The amendment has bien accepted.

Mr EWING:

– I know. The men. of whom I speak went to Western Australia to better themselves bv means of higher wages ; and now, after the great, work thev have done - after thousands have died, and after misery of every description has been experienced - Ave propose to bring them under the trades unions of the eastern seaboard, and to bring down their wages to the eastern level.

Mr Thomas:

– It is strange that those men are asking for this legislation.

Sir John Forrest:

– They do not know what they are asking for.

Mr EWING:

– I have heard before today of men asking for bread, and receiving a stone. The honorable member for the Barrier knows that when it is made clear to the Western Australian miners that the common rule is full of danger, the question will have to be reconsidered. If honorable members think that these men are so enamoured of the new democracy that they will accept anything that the, party decrees, I ask what happened in the case of the ships trading from Fremantle to Adelaide. It was found that when the principle interfered with comfort it was departed from; and no principle is worth consideration’ unless it brings comfort or its equivalent to individuals. If we bring down the wages of men in outlying districts to the level of Tasmanian wages - to the level of men who travel, not on a camel pad, but by motor-car and cable-car - then God help the development of our country ! This is no idle matter. The de’struction of the incentive to people to go to outlying districts to work under great discomfort and trouble, and to hazard their health, and perhaps their lives, is a matter to be taken into grave consideration. The common rule should be made to press as lightly as possible. The States, to the authorities of which the conditions are known better than we can possibly know them, ought to manage these affairs, and only on rare occasions, when a quarrel does extend beyond the limits of one State, should the Federal Parliament interfere. As the honorable member for North Sydney said, a Bill of five clauses would have met all requirements; yet we have been making ourselves ridiculous for the last two or three months with a Bill, in the details of which nobody believes, and which nobody wants in this form, and which is pregnant with evil and disaster, especially to working men.

Mr GLYNN:
Angas

– I am glad that the amendment has been accepted by the Government. It does amount to some limitation of the rather too wide scope of the clause as it stands. At the same time, I think that the clause is a little ambiguous, and I should like to know what the Government think it means. With the1 amendment the clause would then provide that the common rule may be varied in its application to particular localities.

Mr Watson:

– That is the idea.

Mr GLYNN:

– How can it be a common nile?

Mr Watson:

– The words “ common rule “ are only used for the sake of convenience. It is not pretended to be a commont rule in the true acceptation of the term.

Mr GLYNN:

– If it is subject to so many exceptions, it is not a common rule.

Mr Watson:

– The honorable and learned member will recollect that the honorable and learned member for Ballarat suggested the use of - the term “ general rule.”

Mr GLYNN:

– The interpretation which is a grammatical one shows the danger of the common rule provision, because it means that, on a dispute, the Court may frame a series of rules applicable to particular .localities. As a matter of fact, it amounts to a direction to the Court to legislate throughout Australia.

Mr Watson:

– If it should think fit.

Mr GLYNN:

– If it were merely a direction to the Court that, where it thought that the similarity of local conditions justified the application of the common rule to a wider area than would be affected by the dispute, it could be done. That is really what ought to be done. That is the logical way of. arriving at an extension of the application of the award.

Mr Watson:

– This clause does not pretend to be logical’, but only convenient. Mr. GLYNN. - It is neither logical nor convenient. It pretends to be a common rule when it is not. If it were called a “general rule” it would not be made anybetter.

Mr Deakin:

– - -Except that it would not be confused with the “ common rule “ of the State.

Mr GLYNN:

– The point I take is that there is a very wide and radical distinction between the application of a series of common rules, varying in their terms with the locality to which they are applied, and the extension to a specific area of the terms of the particular award. That is applying the identical terms of the award to a wider area than that which was originally interested in the dispute. What the Government say is that if a dispute comes “ before the .Arbitration Court, the award can be applied as a common rule and varied throughout Australia. It may be an award with certain limitations in one district and with other limitations in other districts. In other words, it simply means that the moment-a Federal award is given the Court can at once legislate for the whole of Australia. Where should it stop from the general application of the award, if it is allowed by the clauses to vary it according to localities? Why apply it to one State and not to two States - to one part of a State and not to the whole of the State?

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– That is what the Bill intends.

Mr GLYNN:

– It really does show that the object of the Bill is that the moment an award is made the common rule shall be applied right throughout Australia - that it may be varied to suit the peculiar circumstances of each locality ; but that there is on that award being made, a general rule applicable throughout ^Australia. In other words, we are to adjust the conditions of production and distribution at once on one award throughout Australia. That is a different thing altogether. What the Bill ‘should do is to provide that wherever it was justified by similarity of local conditions the same award should apply, that instead of being applied, perhaps, to the State, it should be applied beyond the State, but that it should not be varied in terms. If we do what the Government ask us to do, it is far more likely that the provision will be declared to be a violation of the Constitution, because it introduces the principle of differentiation right off in a State dispute, and then clearly encroaches on the province of the States. I hope that honorable members, viewing the clause from this aspect, will consider whether a far wider modification should not be made. I think that some provision of this sort would do what is required -

To direct on being satisfied as to the similarity of local conditions or local circumstances. . .

If the amendment were couched in those terms, the award of the Court would not be varied, but might be extended in its application to a wider or narrower district, as the Court in its discretion might consider justifiable. I do not know whether the Prime Minister will accept the amendment in the form I suggest ?

Mr Watson:

– No.

Mr GLYNN:

– That is the Federal method of doing the thing, but the .other is the State method. The honorable gentleman is imperilling the Bill by introducing what in all probability will be declared to be an unconstitutional provision. It is obtruding Federal legislation on what is clearly a State affair. Surely it is not contemplated that there may be three awards in a State one dealing with one part of the State, a second dealing with a second part of the State, and a third dealing with a third part of the State ?

Mr Watson:

– I do not see that there is any objection to that.

Mr GLYNN:

– Clearly that is within the province of the State. It cannot be called an Inter-State dispute or an attempt to prevent such a dispute if three awards can be made applicable to one State. That clearly is a matter for the State to deal with. I would again urge the Prime Minister to allow the amendment to take this shape -

On being satisfied as to the similarity of local circumstances.

That is some concession in the direction of the common rule.

Mr WATSON:
Treasurer · Bland · ALP

.I cannot accept the amendment which has been suggested by the last speaker, because my own view - and I think that it is held by most of those who are in favour of the Bill - is that the common rule should be capable of application in . any particular industry right through Australia, with such exceptions as to either rates of wages or other conditions that the Court might like to make, in view of local circumstances. That is the whole plan on which the Bill has been framed.

Mr Glynn:

– Is not that factory legislation ?

Mr WATSON:

– I do not think it is. It may be that that is the only way in which to satisfactorily settle a dispute which has arisen, and which is sufficiently far-reaching in its character to come within the cognisance of the Court. In Australia we have had our largest strikes through the sympathetic action of people who were, not directly affected in the first instance.

Mr Kelly:

– Not worked up by agitators.

Mr WATSON:

– The honorable member was only in his swaddling clothes when the last big strike occurred, and, therefore, has no knowledge of the circumstances under which it spread, just like a flame through the land, from one industry to another. The difficulty of those at the head of affairs was to prevent the dispute from spreading.

Mr Lonsdale:

– I question that very much. ‘ .

Mr WATSON:

– The honorable member was not in Sydney, and does not know anything about it. i was there, and the difficulty of the Trades and Labour .Council was to keep men from going out on strike. I know of three or four large industries in which the men begged to be allowed to go out. We did our best to stop them, and we succeeded.

Mr Kennedy:

– And brought out some who did not want to come out.

Mr WATSON:

– In some cases, perhaps, men were brought out in that way.

Mr Lonsdale:

– Lots of them.

Mr WATSON:

– I was not on the Defence Committee, but I. was on the Trades and Labour Council, and I know that the difficulty was to keep men at work. There were some cases where I think men were unwisely brought out, but that is another question. In the Newcastle district the men were locked out by their employers, so that there the dispute was extended by agitators on the other side. What I wish to convey is that the most serious and far-reaching strikes are those which extend by reason of the sympathy evinced by people who are not primarily interested, but who are anxious for the first parties to win. To secure the settlement of a strike of that nature it is impossible to have one universal and unvarying award. It is impossible to get that kind of award ‘to settle the dispute. Take the case of the shearing industry, leaving out of account the sympathetic strike of persons engaged in other industries. That would be an Inter- State dispute, possibly ; at any rate it would require the intervention of the Federal authority before it could be satisfactorily adjusted. It would be. an unwise thing to set a hard and fast award to govern the conditions of the shearing industry throughout Australia.

Mr Glynn:

– But they would all be parties to the dispute, and the Court could vary the award as much as it liked.

Mr WATSON:

– Quite so; but supposing that in the first instance they had omitted to make certain persons parties to the dispute. There might be two or three kinds of employers whom,. inadvertently or otherwise, they had omitted to make parties to the dispute, and who, it might, be found afterwards, were not agreeable to be bound by it. Does the Committee intend to tie the hands of the Court in such a way that it must, in giving a decision on the common rule, extend a uniform practice to all those parties who were not bound in the first instance? That, I think, would be a most unwise principle to lay down.

Mr Wilson:

– In the case of the shearing industry, the principal organizations on each side are federated.

Mr WATSON:

– I know; but still all the employers are not within the federation, nor are all the employes.

Mr Wilson:

– But if the Bill is carried out, they will be forced into an organization.

Mr WATSON:

– No.; perhaps the effect of the Bill will be to encourage them to join an organization.

Mr Wilson:

– No; to force them.

Mr WATSON:

– In my district I know some employers who have never had, and wil not have, anything to do with the Pastoralists’ Union, and, on the other hand, there are many employes who will not join the Shearers’ Union.

Mr Cameron:

– Will not these men be equally bound ? 1

Mr WATSON:

– If they are made parties to the dispute in the first instance, they will be bound. But under the amendment suggested by the honorable and learned member for Angas, if they have been inadvertently or designedly omitted from the first citation of the parties they could not have the award afterwards extended to them except in a hard and fast form without the slightest variation on the part of the Court.

Mr Glynn:

– The Court could bring in any one on the application of either of the parties to the dispute.

Mr WATSON:

– At or prior to the original hearing only, but not by way of the common rule. That is why I cannot understand the anxiety of the honorable and learned member to limit so convenient a form of extending the common rule as it is now proposed.

Mr Glynn:

– The same thing happens inregard to all law cases.

Mr WATSON:

– It is not a reason why we should follow a - bad example that it obtains in the civil Courts. In this case we only say that, after a verdict has been given, the persons interested shall be made subject to the common rule, with such exceptions as they are able to point out as being necessary, for they will have the opportunity of going before the Court and pointing out that certain exceptions should be made in their favour. That, I think, is a reasonable thing to do. The amendment of the honorable member for Richmond merely amplifies the intention originally expressed in the clause ; but the honorable and learned member for Angas is arguing from quite an opposite point of view.

Mr Glynn:

– The honorable member for Richmond wishes to minimize the effect of the clause; I wish to change its principle. The amendment would be a very proper one in a State Bill.

Mr WATSON:

– I think it is a highly proper amendment in a Federal Bill. If a dispute is one in which the Commonwealth

Court mav intervene, the power of the Court in regard to the particular industry concerned will be absolute for the purpose of securing a settlement. The Committee have already agreed to an amendment in paragraph / which confines the application of any award to the industry in which the dispute arose, whereas, under the clause as it stood, the award might be extended to other industries affected in a secondary manner. I think that the honorable and learned member for Angas might very well allow the amendment to pass.

Mr WEBSTER:
Gwydir

– I wish to enter my protest against the amendment, because, in my opinion, we can. rely upon the Court paying due regard to local circumstances, and exercising generally the judgment now shown by similar States Courts.

Mr Deakin:

– If we were satisfied to trust everything to the discretion of the Judge, all that would be necessary would be one clause, creating the Court, and empowering it to act.

Mr WEBSTER:

– We must, of course, lay down the lines upon which the Court shall act ; but it is quite sufficient in this clause to indicate to the Judge how he shall allot awards and apply the common rule. Honorable members appear to fear that the Judge will not exercise the common-sense, or display the ability, which is to be expected from a man of the qualifications of a Justice of the High Court, and that in the judgments of the Court reasonable regard will not be paid to the evidence brought before it. . Can any one believe that the Court will apply a common rule where the local conditions make its application unsuitable? The New South Wales Court has not done so. When the Northern Miners’ Union secured an award in that Court in regard to certain matters in dispute, and the Court was asked to make the award a common rule, applicable to all the coal-mining districts in the State, it refused to do so. If a State Court will, in an instance like that, where the conditions are much more similar than they would be over the whole area of the Commonwealth, refuse to make its award a common rule, surely we can trust the Commonwealth Court to act similarly. The members of the Committee appear not to realize how the need for common rules has arisen under arbitration legislation. If they had studied the history of arbitration law in New Zealand, they would know that the want of a common rule there has caused endless litigation, so-called party conspirators or agitator’s having been stimulated thereby to create disputes, merely to secure fees for their appearance before the Courts on behalf of the unions.

The CHAIRMAN:

– I think that the honorable member is not in order in dealing with the common rule under the amendment before the Chair.

Mr WEBSTER:

– The application of the common rule is affected by the amendment. In applying a common rule, regard must be had to local circumstances and conditions,’ and, therefore, the amendment is material to its application. If the New Zealand Court had had the power to extend its awards, and make common rules where local conditions were similar, numerous applications for similar awards would have been rendered unnecessary. I do not say that the amendment materially alters the clause, but I see no need for it. The provisions with regard to limitation of area and. so forth are a sufficient direction to the Court to require it to be guided by local conditions in extending ‘an award and making it a common rule. I think that the Prime Minister is unwise in accepting an unnecessary amendment.

Mr DEAKIN:
Ballarat

– In my opinion the Prime Minister has acted very judiciously in adding one more to the fingerposts already in the Bill. The amendment will neither give the Court further power nor impose upon it further limitations ; but as an addition to the series of indications of the meaning of Parliament already inserted it can do no harm, and may serve a very useful purpose. I rose to remind honorable members that, while I shall vote for the amendment, I do not say with any confidence that it .will be found to be constitutional, or capable of being, applied. The Constitution gives the Court power to deal with disputes extending beyond the limits of any one State, anl as soon as there is concrete evidence that a dispute has so extended the Court will be able to deal with it. But if it be held that the. Court may go further than that, it will be inconvenient for it not to have power to make a common rule where it feels satisfied that it should do so. To deduce from the plain words of the Constitution, which empower the Court to deal with a dispute extending beyond any one State, the power to deal in anticipation, by the application of a common rule, with disputes that may arise in the four States not actually affected, implies a very long-drawn inference ; but at the same time I admit that it is desirable, in order to give coherence and completeness to a measure which we desire to make as perfect as possible, to provide for the application of common rules, upon the assumption that the Court will have power to exercise them. This is merely an endowment of power to the Court. If the Court decides that it can constitutionally make general or common rules, and apply them for the purposes of prevention to States to which disputes have not at the time extended, it will be for it to determine whether, and to what extent and under what conditions, it should exercise this power. Those who are opposed to the paragraph may content themselves with the fact that it merely conveys power to the Court. We are not able to dictate tlie exercise of that power; that will rest with the Court.

Mr KNOX:
Kooyong

– The honorable and learned member has completely stated, what is running in my mind. The carrying into effect of many clauses of the Bill, for good or ill; will depend upon the interpretation placed upon them by the Court. We are all agreed that any award which is made should be made in such a form as not to injure others who are engaged in the occupation to which it is applied. But I. rise to again enter my protest against the effort which is being made to coerce the States.. The very verbiage of the paragraph shows that in drafting this measure it was contemplated that a common rule might apply to the whole Commonwealth.. It is, therefore, desirable, to introduce qualifications that will indicate to the Court that we do not wish the application of the principle to be strained to an extent that would operate disadvantageous!)’ to the genera] interests of the people. It must be evident to honorable members opposite that if the application of this principle had an injurious effect on employers it would have an equally disadvantageous effect upon employes. I desire to strongly impress upon the Committee mv belief that this measure is intended to impose upon those States that have not yet passed’ legislation in this direction a burden which they consider they should not, at present, be called upon to bear.

Amendment agreed to.

Mr WATSON:

– In order that the paragraph may conform to the decision arrived at by the Committee, when dealing with paragraph d, I move -

That the words “the organization or persons,” lines 13 and 14 be left out, and that the word “ they,” line 14, be left out with a view to insert in lieu thereof the words “ such penalties in part or in whole.”

Mr GROOM:
Darling Downs

– I would direct the attention of the Prime Minister to the fact that even if the paragraph were amended as proposed, an anomaly would remain. It will be remembered that when the honorable and learned member for Corinella was dealing with paragraph c he asked that the words “ and to specify, the organizations or persons to whom such penalties shall be paid “ be omitted. His contention was that circumstances might vary, and that it would be inadvisable to specify in the award itself the persons who should receive the penalties for a breach of it. He considered it desirable to provide that, on a subsequent application, the Court, which would then have a full knowledge of the circumstances, should be able to direct to whom the penalties for a breach that had actually occurred, should be paid. Those words were omitted from the paragraph, and under it the Court, in making an award, will have power only to specify the maximum penalty for a breach of it. Under paragraph /, any practice, rule, or custom settled by an award may become a common rule, and the common rule will have a wider application than an award ; yet, in paragraph g, it is proposed to leave it to the Court to determine in making that common rule the persons to whom the penalties for a breach of it shall be paid.

Mr McCay:

– The Prime Minister should follow the course adopted in regard to paragraph c.

Mr GROOM:

– That is so. To remove the anomaly, it would be necessary to omit 1 all the words as to specifying the persons to whom the penalties shall be paid. It is desirable, however, that there should be power, as in the case of a breach of an award to specify the persons to whom these penalties shall be paid when a breach of the common rule has been committed. The Prime Minister -will recognise that the conditions governing the common rule are practically the same as those governing an award ; and that any individual injured by a breach of the common rule should be entitled to receive the penalty fixed in respect of it just as he would be in the case of a breach of an award.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– The paragraph is to be recommitted.

Mr GROOM:

– But I wish to make the paragraphs consistent. At present the provisions relating to the common rule are wider than those applying to an award. Only one order could be made as regards parties to a dispute, but a much more drastic order might be made in reference to persons who were not parties.

Mr Watson:

– I think I can meet the difficult v.

Mr GROOM:

– I would ask the Prime Minister whether he thinks that the word “award,” used in its full sense, includes the words “ common rule ?’ ‘

Mr Glynn:

– Under clause 37, I think it does.

Mr GROOM:

– Paragraph c, of clause 37, provides that the award of the Court shall be binding on - all organizations and persons on whom the award is declared by the Court to be binding.

Mr Glynn:

– Those words are not required, because what the honorable and learned member has pointed out follows.

Mr GROOM:

– That is the point which I desire to bring under the notice of the Prime Minister. It would not be well for us to leave these matters to the Court to interpret. Throughout clause 46 we deal with an award and a common rule as if they were absolutely distinct. An award is something which is binding between the parties to the dispute, but a common rule may be declared to be. binding on persons who are not. We have been using a distinction in phraseology, whereas if an award includes both an award and common rule there need be no further declaration following paragraph g.

Mr Glynn:

– These words should be struck out.

Mr GROOM:

– I think that they should, in order that the paragraph may be brought into harmony with paragraph c. If the word “award” does not cover “common rule,”, then it will be necessary to make a consequential amendment in clause 52, in order to enable a person who is aggrieved by a breach of a common rule to recover the penalty provided in a Court of summary jurisdiction, in any place to which it extends.

Mr McCAY:
Corinella

– The Committee is indebted to the honorable and learned member for Darling Downs for having brought this matter forward. When paragraphs c and d were before us last week we said that the Court, by its award, might fix the maximum penalties, but should not specify the destination of penalties. We omitted certain words to give effect to that decision; but paragraph g goes back to the system of which we disapproved, and allows the destination of penalties to be declared when the maximum is fixed, instead of when they are actually imposed. In order to bring this paragraph into harmony with the express desire of the Committee, it will be necessary for the Prime Minister to withdraw his amendment, and to move the excision of all the words relating to the destination of penalties. The principle is that the destination of penalties shall not be determined until the penalty has actually been imposed, and the circumstances are known. The honorable and learned member for Darling Downs has inquired whether the words ‘ ‘ common rule “ and “award” relate to two different matters. This raises a very interesting speculation as to how far, in that event, the constitutionality of common rules is affected. If they are different, the fact affords, to my mind, a considerable argument against their constitutionality. If common rules ,and awards are one and . the same, however, that fact offers some argument, although not a very strong one in their favour. Leaving that matter out of consideration for the moment, and dealing with the two words separately, although the two matters may be capable of being included in the one term, I think that it would be necessary to insert certain words in paragraph g corresponding with the provisions in paragraph d.

Mr Glynn:

– Would not the honorable and learned member strike out all the words after “not “ ?

Mr McCAY:

– Unless “common rule” could be brought within the interpretation of “award,” it seems to me that it would be desirable to provide against common rules. I regard “common rule” as meaning an extended award in its only justifiable use, and, therefore, regarding them as being included in paragraph c, it would be better to omit the words -

And to fix penalties for any breach or nonobservance of the common rule so declared, and to specify the organizations or persons to whom they shall be paid.

At. all events, the power to draw a distinction must not be left in this form in paragraph g, or the provision would be in direct conflict with the decision of the Committee in regard to paragraph c.

Mr WATSON:

– I agree, on consideration, that if my amendment were accepted and no further amendment made, there would be an apparent conflict between the principle adopted in sub-paragraph c, and that of paragraph g. The whole trouble arises from the effort to distinguish in the Bill between an award and a common rule. It is well, on the whole, that there should be a distinction, because we wish to indicate to the Court that a common rule may be an extension of an award, but is not necessarily to be confused with an award itself. If we had no reference in the Bill to a common rule the Court might be doubtful whether it had the power to practically re-open an award and extend its scope; but by making some allusion to it we indicate that the Court is to be endowed with the power to extend an original award, with such alterations as it may consider desirable. I think the best course for me to pursue would be to withdraw the amendment, and to move the omission of the words - and to specify the organizations or persons to whom they shall be paid.

That amendment having been made, I shall be prepared, at a later stage, to consider whether it is necessary to introduce a further provision to carry out the idea of the honorable and learned member for Corinella, that we should practically apply to the common rule the provisions respecting the imposition of penalties that are to be found in paragraphs c and d. I shall go thoroughly into the matter. I have already promised to recommit paragraph /.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– And paragraph d.

Mr WATSON:

– I do not think that I promised to recommit paragraph d, although I do not wish to give rise to any difficulty.

Mr Glynn:

– It will be necessary to recommit the whole clause.

Mr WATSON:

– Technically it will, but it will be a matter of agreement as to the point at which we shall start.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– It was agreed that paragraph d should be recommitted.

Amendments, by leave, withdrawn.

Mr. McCAY (Corinella).- With regard to the distinction between a common rule and an award, I suggest to the Prime Minister that, as’ a matter of drafting, a common rule, so called, whatever its limitations may be, is an extended award. Although I am no extravagant lover of the common rule, I think that the marked distinction made in the Bill between a common rule and an award, will suggest to the Court a very grave question as to the constitutionality of common rules. It will be rather a suggestion that Parliament looks upon a common rule as something distinct from an award. It will be suggested that the common rule is a pretended assumption of power, which we are not justified in making. The honorable and learned member for Ballarat has drawn attention to the question of the unconstitutionality of common rules, but if by drafting we suggest such a thing, we are giving almost a parliamentary indication that we regard the justification for the common rule as being founded upon an implied power rather than in an express provision of the Constitution. I may say, in passing, that the ‘amendment of the Government is at least as drastic as any amendment of mine, and more drastic than the last one proposed by me. Consequently, I do not intend to object to it. But I suggest to the Prime Minister that it is of no use casting a doubt on his own legislation by endeavouring to draw this marked distinction between a common rule and an award. A common rule can only be justified as an accretion to an award. The more I think of it the more I doubt our power ; but it is an assumption of power which we ought to make in the interests of peace - with proper limitations.

Mr WATSON:

– I move-

That the words “ and to specify the organizations or persons to whom they shall be paid,” lines 13 and 14, be left out.

I do not look upon the common rule as involving any greater infraction of the constitutional position, or any further extension of the constitutional power given to the Parliament, and, therefore, given to the Court, than the award itself. Because, after all, it is only a correction of any inadvertent error into which people may have fallen in not joining as parties in regard to any case. The common rule is an attempt made to apply the award to persons other than the original parties. If, under this legislation, or any legislation of any of the States, any of the individuals to whom it is sought to extend the common rule could have been parties in the first instance, the application of the common rule is virtually an extension of the award to them.

Mr Glynn:

– They could all be bound under State legislation.

Mr WATSON:

– So they could under Federal legislation, if engaged in an industry which is the subject of an Inter-State dispute. I do not think this will carry us any further, so far as the interpretation of the Constitution is concerned, than, the award itself. I look upon it, however, as an amplification of an award,” to admit of a more definite method being attempted than the breaking up of the original award. The Government will have an opportunity to consider, at a later stage, how far it may be necessary to supplement paragraph d in regard to the imposition of penalties.

Amendment agreed to.

Paragraph, as amended, agreed to.

Paragraph h agreed to.

Paragraph i -

To order any party to the dispute to pay to any other party such costs and expenses, including expenses of witnesses, ‘as are specified in the order, but so that no costs shall be allowed for the services of any counsel, solicitor, or agent.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– I doubt whether it is desirable to exclude the costs of solicitors or agents in this matter. I have no doubt that costs will be incurred ; and if parties very wrongly bring a case before the Court, why should they not be made liable for the whole of the costs ? It is not to be supposed that solicitors or agents will, by the operation of this paragraph, be excluded from acting.

Mr Watson:

– But we ought to discourage them.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– We shall not even be discouraging them. We may be encouraging the creation of a class of what may be called lay lawyers, who may become as proficient in this particular business as members of the legal profession. If men of that class prove themselves to be sufficiently efficient the demand for their services will extend, and- their fees will rise. Therefore, the paragraph will not prevent agents from acting for the parties. But it will make this difference - that if a solicitor or agent is employed, and costs are incurred,, while we make the party who is found to be in the wrong liable to- pay his own costs, we allow him to escape payment of costs- which have been incurred by the opposite party.’ I do not see what is to be gained by that. It has to be remembered that this is to be a Federal Court. It will not be in the same position as a State Court. Cases .will be brought before it from distant parts of the Continent ; and that being so, the parties may have to be represented either by lawyers or agents, and costs will have to be incurred.

Mr Hughes:

– Woul’d it not make parties more ready to go to law if they knew that they could get their costs?

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– It will make them far more ready to go to law if they know that they can escape being mulct in costs if they lose.

Mr Hughes:

– They have to pay their own costs.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– But they escape being mulct in the costs which they have caused the opposing party to incur.

Mr Hughes:

– Suppose one of the parties chose to pile up the costs ?

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– Of course they would be taxed. Even if this were considered to be a desirable provision in a State Act, it is far from being desirable in a Federal Act. If one party think they can put another party, who are remotely situated, to a great deal of expense without having themselves to pay a considerable portion of the costs, there will be a great temptation to do so. This is not a matter that affects employers or employes particularly. It is not as though we could’ say that costs shall not be incurred. There would be nopossibility of carrying out such a provision. All that we can say is that costs shall not be allowed. There is one way in which costs are often run up unnecessarily, and that is in the matter of witnesses. In the case of the Federal Court, under some circumstances, witnesses’ expenses will be a considerable item, because the Court will have to deal with cases affecting districts more or less distant in origin, or in respect to other areas affected. Since there must be representation of the parties, I. see no reason why reasonable costs should not be allowed. As- in an ordinary court case, the litigants would not, of course, get the whole of the expenses of their advocates, agents, or lawyers, but only such portion as might be taxed. Fbr these reasons- I suggest to the Prime Minister that he would gain nothing, but might lose something, by the provision as it stands. In any case, it is rather unfair that one who has imposed expense on another, quite unnecessarily, it may be, should escape the payment of costs.

Mr WATSON:

– I cannot see the matter in exactly the same light as does the honorable member for North Sydney. What is attempted to’ be set up, wherever these Courts have been projected, is a Court of equity and good conscience, and not a Court dependent on legal technicalities, or the mere detailed interpretation of the actual language of a Statute. Under the Federal Constitution there will, I admit, be occasional questions of jurisdiction which, of course, do not arise in a State Court i but the central idea at which we should aim is to . avoid the technical part of the law, and to prevent it being made part of a dispute. Once we- take it for granted that these costs may be allowed, a solicitor, counsel, or agent will be nearly always employed, and in almost every instance some attempt will be made to have costs granted. Without the counsel, . solicitor, or agent, (he Coun, I admit, will have to depend on itself for an interpretation of the law ; there will be none of that assistance which, I dare say, is useful to a Court, as it may be to persons, in the wav of suggestions during the progress of a suit. But I think the balance of advantage lies with’ there being no provision either for lawyers to be present in the Court, or for their costs to be allowed in regard to any particular case.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– But the lawyers are not excluded, so far as this clause goes.

Mr WATSON:

– That is so; but at a iater stage the Governent will propose that lawyers shall be excluded from the Court unless both parties consent. Even if that provision be carried, it will not have the effect of excluding the opinion of solicitors or barristers being sought, or solicitors being engaged to work up a case. There is no prohibition of that kind; but a; the same time it would be unwise to grant costs to either party in respect of the employment of agent, solicitor, or counsel. In New South Wales there is no power to g-rant costs of the kind. Although legal gentlemen may appear in the New South Wales Court, there is no power to grant costs in respect of their appearance, or of . any work performed by them. ‘ Under the New Zealand Act the provision is exactly the same so far as costs are concerned.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– Is it proposed to exclude agents?

Mr WATSON:

– Notice has been given of a new clause dealing with that point. The honorable member for North Sydney said that in a Federal Court it would be impossible for parties at a distance to appear personally, and that they would have to be represented by an agent. The great probability is, however, that an employer in the back country of New South Wales or of Western Australia would be represented by an agent found for him by the employers Organization in Sydney or Melbourne, or wherever, a Court happened to sit.

Mr Mcwilliams:

– But suppose such an employer is not a member of the organiza tion? There are many employers who re fuse to join.

Mr WATSON:

– I am aware of that fact ; but in the great majority of cases such an employer would be represented in the way I have suggested. In other cases, it would be just as easy for an employer to appeal directly to the Court to view his circumstances, as it would be to get an agent. In any case, the trouble I see is that if once we allow the costs of agent, or solicitor, or counsel, to be given, we immediately encourage the stringing out of cases, and reliance on the technical points that’ may not have, or should not have, any effect on the decision of the Court. That is the danger I fear ; and’ I prefer, therefore, not to accept the suggestion of the honorable and learned member.

Mr. DEAKIN (Ballarat).- Personally, I am against all these restrictions, because I believe they do not conduce to the ends of justice, or to satisfactory, decision. I do not think this particular proposal, as to costs, is of first importance. But I do think that the amendment excluding counsel, which the Government promise at a later stage, is a matter of importance, and, when we reach the proposal, shall be prepared to argue it. At this stage I do not wish to go into the question ; it is only necessary now to enter a preliminary protest. It is quite a mistake to assume that the value of a member of the legal profession in a Court of this kind is confined to his knowledge of the law. A man who has had practice in . the Courts, and possesses experience with witnesses and juries, has gained a fund of knowledge which may not be usually described as legal, and may be accompanied, as it often is, with a lax knowledge of the law. Many of the first advocates and ablest crossexaminers, who- are of great value in a Court on any question of fact, are not strong in their interpretation of . the law. It is this practical value of the legal profession which the Government propose to . throw aside.

Mr Watson:

– Quite so; and, I think, justifiably.

Mr DEAKIN:

– I think that the clause as it stands, would weaken the procedure, and injure both parties to a suit ; but it is not necessary to develop the question- now.

Mr WILLIS:
Robertson

– It seems -to me that the clause, as it stands, has a tendency to keep the Court weak. The Prime Minister has admitted that the Court, in the absence of legal gentlemen, will receive no assistance whatever in its interpretation of the law.

Mr Watson:

– It is only a weak Court that wants assistance, I imagine.

Mr WILLIS:

– I suppose the Court will listen to the advocates who conduct the cases, but it is not suggested that the Judge will set aside all his own knowledge of what is right. The Judge is there in the interests of good government, and, as the Prime Minister says, of equity and good conscience.

Mr Watson:

– Very often that does not apply to lawyers.

Mr WILLIS:

– I suppose that some of the ablest men in the States have refused to take a seat on the Bench, and we strengthen the Court by allowing the employment of such advocates. I certainly do not approve of the employment of unskilled men. A man who appears before the Court should be qualified for the work he has undertaken ; and, as I say, this provision seems to me to have a tendency to weaken the Court, which might, on the other hand, be strengthened by admitting to practice members of the Bar.

Mr McWILLIAMS:
Franklin

– I am not anxious to bring lawyers, more than is absolutely necessary, into these disputes.

Mr Deakin:

– Not as lawvers.

Mr McWILLIAMS:

– I ‘am speaking absolutely from a layman’s point of view. Grave injustice may be done to the parties before the Court if we exclude assistance for which they are prepared to pay, and which they believe to be seriously necessary.

Mr Watson:

– We do not exclude that assistance, but simply provide that the cost of it may not be recovered from the other side.

Mr McWILLIAMS:

– I do not want to discuss the amendment which will have to be considered presently. According to the amendment which is to be proposed, all lawyers are to be excluded, but agents are to be allowed to appear; and very serious injury may be done to either an employer or an employe who is not a member of an employers or trades union. I regard both employers’ organizations and workman’s organizations as exactly on the same footing. The agent may be the paid secretary of either organization, and, with all due deference to the legal members of the House, I can see that this agent, with the coaching he will get from the solicitor to the particular union, may, in ‘this Court, be as good as a great many lawyers.

Mr Watson:

– We are not discussing that point yet.

Mr McWILLIAMS:

– We cannot discuss the question before us without considering its effects. I want to place the nonunionists and unionists on both sides on exactly the same footing; and we can see that if we get an employers’ association on the one side against a non-union body of workers, the latter will be seriously handicapped by a decided disadvantage. A layman not specially trained would have to appear in Court as against the skilled secretary or agent of the other side, who, to all intents and purposes, is a lawyer so fax as this particular Bill is concerned.

The CHAIRMAN:

– Do I understand the honorable member is going to connect these remarks with, the question before the Chair ?

Mr McWILLIAMS:

– Yes ; the clause before us deals with the costs which are to be allowed to the agent or to the solicitor. If we allow agents or solicitors to appear, whether on one side or the other, and one side brings a trivial case, and drives the other side into legal expenses, these ought to be paid by the party which loses the suit. Personally, I should like to exclude lawyers and agents altogether from this Court, and would be prepared to vote for a proposal to that effect. But if we do allow them to appear, I see no reason why, in the case of an employer or trades union trying to take advantage of, and work injustice by going behind, an award, costs should not be given. If the Court thinks that one side has been totally wrong in submitting a trivial case, that side ought to pay the expenses incurred by the other side, which has, as it were, been forced into Court.

Mr. KNOX (Kooyong). -The whole argument used from time to time by the Prime Minister has been “ Trust the Judge.” If he is prepared to trust the Judge in great matters affecting large industries, why is he not prepared in small matters of costs to trust to his discretion? This is another of the inconsistencies which run right through the measure.

Mr. McCAY (Corinella).- This is not a matter on which any legal member need shrink from speaking, because he will get his costs anyhow, but it is a question of who shall pay them. I quite agree with the honorable member for Kooyong, that if the Court can be trusted in matters of infinitely greater moment, it can be trusted in the matter of costs. It does” seem a pity to prevent the winning party from being indemnified, at any rate, to some extent, if he has justifiably been engaging legal assistance. The Minister of External Affairs pointed out last week that one reason for allowing penalties to go to parties was that they might be recouped what they were actually out of pocket for legal expenses, and the Prime Minister hurled at the honorable and learned member for Wannon the taunt that members of the legal profession h,id in a certain case divided up the sum of ^50, as to which, he said, the honorable and learned member seemed very anxious. If Ministers will apply that argument in this case, surely they will not say that it is unwarrantable to allow penalties to be imposed to reimburse the parties in respect of costs, and not to allow the Court to assess them as costs, but to compel it to assess them as penalties. Because the question is not whether lawyers are to have a hand in the matter, but as to who is to pay them.

Mr Watson:

– They will be minimized if they think that they will not get the costs allowed them.

Mr McCAY:

– Surely they will not get costs allowed them by this impeccable Court, except in a proper Case ?

Mr Hughes:

– Take a case where either no penalty, or only a nominal penalty of one shilling is inflicted, and where the costs might be relatively heavy.

Mr McCAY:

– If the penalties were nil or merely nominal, the Court would presumably follow the wholesome rule that, there being a contemptuous verdict, it should not cai ry costs.

Mr Hughes:

– I do not think that that would follow in an Arbitration Court.

Mr McCAY:

– It is not a very important matter, but I think that the Government may find afterwards that in their anxiety to do good they have done an injury to people whom it might be desirable to benefit. The fact that a party has to pay the costs or some costs on the other side, if he loses, is a very wholesome deterrent to speculative or casual actions. When a client is told how much it will cost him if he loses, very often it checks an otherwise litigious spirit. The provision as it stands is rather an encouragement to unnecessary litigation than a hindrance of it. People .with a just cause need not fear the omission of the words. It is not a vital matter, but, on the whole, I think that expediency and wisdom suggest an amendment.

Mr. DUGALD THOMSON (North Sydney). - The Prime Minister has truly said that a similar provision is in. the Act of New South Wales; but, nevertheless, in almost all cases counsel appears for the parties in the State Court. That shows that the provision has not had the effect in- tended. If counsel is allowed to appear, then the party who is found responsible for unnecessarily bringing the case to Court should properly pay, whoever he may be. That seems only equitable. To my mind, a provision of the kind would deter people from bringing before the Court cases where there was very little prospect of getting a decision in their favour. It seems that in a new clause that will, be proposed at a later stage, the Ministry have decided to exclude counsel and agents. If counsel and agents are to be excluded by a later clause, I do not see much necessity for the provision before the Committee. I would suggest that the provision be omitted from this clause, and if the new clause be carried, inserted in that clause. Because it is contradictory to say in one clause that costs shall not be allowed to counsel, and to say in another clause that counsel shall not appear.

Mr Hughes:

– Only if both parties are agreeable.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– Is that in the provision?

Mr Hughes:

– Yes.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– If th.it isintended to be carried, the provision might remain in here. I am sure that the experience of the Minister in the New South Wales Court is that, under a similar provision, counsel are very largely employed.

Mr Hughes:

– They are not excluded if the other party does not object.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– They are not allowed costs.

Mr Hughes:

– No.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– That is the provision with which we are dealing. I am sure that the Minister will agree with me that, although a similar provision is in the State Act, counsel are largely employed by each side- in fact almost invariably. I think that the equitable method is to allow the Judge to award the costs, or a portion of them, against one of the parties. I would suggest to the Prime Minister that he should not insist on this provision, but should depend entirely on the later provision which he intends to introduce, and that if he is defeated, then he should allow the costs of solicitor or agent to go to the parties who might be named by the Judge.

Sir JOHN FORREST:
Swan

– I have not before me a copy of the latest Act ot New Zealand, but I know that the Act of Western Australia, passed in 1900, provides that either party to the dispute may appear personally, or by agent, solicitor, or counsel, but that no costs shall in any case be allowed on account of any agent, solicitor, or counsel appearing for any party. That, it seems to me, would be a reasonable way out of this difficulty. I can well understand that we do not wish to have these cases made too expensive. At the same time, I do not see any real ground for denying to those who want the advantage of counsel at their own expense that benefit. What was said just now by an honorable .member appeals to me. Agents of labour organizations are up to every argument and move in regard to these Acts, and are really experts. Therefore, to prohibit the employment of legal assistance is to place an embargo on the other side, who are not always thinking of how to get the better of the employes. I believe in permitting the employment of a solicitor or counsel, and not allowing the Court to give any costs. It cannot be considered unfair to either side to say that legal assistance may be provided at their own expense.

Mr Hughes:

– The clause says that.

Mr Frazer:

– In Western Australia they cannot employ counsel, except the other side agrees.

Mr HUGHES:
Minister of External Affairs · West Sydney · ALP

– There are certain arguments in favour of paying costs which seem to be worth considering’; but I think that they must be. set aside in consideration of those very much greater advantages which can be, and are now. obtained under a similar provision in the New South Wales and ‘ other Acts. I have no doubt that if lawyers are excluded from the Court, persons will spring up who will be .skilled more or less in this business, and capable of discussing matters likely to be brought before the Court. Supposing that a body of men residing at a long distance from the Court should desire to be represented by an agent. Money is a consideration to a small union of employes or employers. I would remind the right honorable member for Swan that perhaps this proposal will be as advantageous to employers as to employes, because very often a union is collectively very rich. ‘ An organization with which I am connected possesses .£3,000 or £4,000 - not a very large sum, but still ample to bear the costs of any litigation. An employer may be a man, and I believe in very many cases is a man, with perhaps only £100 or £200 at his back. If a union were to pile up the costs, multiply the number of witnesses, and thus, protract litigation, it could, of course, practically smash such a man. But the proposal cuts both ways.

Mr McCay:

– Surely this- wise Court would see what was being done.

Mr HUGHES:

– The Court will see a number of things, but it may not see everything.

Mr McCay:

– It is being required to see pretty nearly everything.

Mr HUGHES:

– The President of the Court will be a gentleman educated in a certain environment, and blind to the imperfections of a legal system which regards costs as one of the first laws of nature. I do not mean to say that no regard is paid by the ordinary Courts to this question, or that it will not be fairly regarded by the Arbitration Court, but I fail to see that any one has suffered injustice under the New South Wales practice. Whenever a penalty has been imposed for a flagrant or deliberate breach of an award, the party injured has received such a proportion of it as practically to enable him to defray his expenses. If there were inspec-tors, half of the work of the unions would be done by them, but it would be impossible to appoint, under this Bill, inspectors who would have competent jurisdiction throughout the Commonwealth. Therefore, the various unions of employers and employes will have to look after these matters themselves, and where they are forced to prosecute they should not be put to unnecessary expense or trouble.

Mr. GLYNN (Angas). - I do not care very much whether the words do or do not remain in the clause. What I object to is the exclusion of lawyers or agents. I have, however, a’ compromise to offer. In South Australia we have a Local Court procedure, as distinct from the Supreme Court procedure, and somewhat analogous to the District Court procedure in New South Wales. This provides a distinct limitation of costs. Where lawyers’ fees in a Supreme Court action may run into hundreds of pounds, no costs are allowed under the Local Court procedure where the interest involved is less than £5, whereas, if it be more that ; £5, and not exceeding , £20, the costs allowed are only £1 ; £6 2s. is allowed where the amount does not exceed £30 ; and so the costs increase, according to scale, until a maximum of about£17 is allowed. Moreover, there are no refreshers, except sometimes counsel’s fees, no matter how long the proceedings may be dragged on. I can see the objection to allowing full Supreme Court costs in proceedings under this Bill. If that were done, and the case lasted a fortnight or three weeks, it would be very hard to compel the defeated party to pay all costs, since some of the parties concerned might n6t have been parties to the original dispute, but might have been made parties by order of the Court. Under the Bill as it stands, unless there were some proscription in the rules, imposing a limitation, full Supreme Court costs would be recoverable ; but I suggest that power should be given to make rules providing for a strict limitation of costs similar to’ that which I have described.

Mr. HUGHES (West Sydney- Minister of External. Affairs). - If the amendment which the Government intend to impose to exclude counsel and solicitors is defeated, we shall be willing to recommit this clause, in order to consider some such suggestion for the establishment of a scale of costs according to a schedule as that made by the honorable and learned member.

Mr JOHNSON:
Lang

– W.hilst I would recognise the wisdom of including a provision of this kind in a State Arbitration Bill, I do not think that the arguments for the exclusion of counsel and solicitors from the Arbitration Court apply with the same force under a Federal Bill. . It must be remembered that the Court will deal with disputes removed far beyond the particular area in which they have arisen, and the distance of the place at which the Court sits may be so remote from the place of residence of the parties chiefly concerned as to make it almost impossible for them to attend in person. They must, therefore, secure representation, and the only way in which they can do so is by employing counsel or a solicitor or an agent.

Mr Hughes:

– There is no reason why the secretaries of the organizations should not appear before the Court.

Mr JOHNSON:

– It may not always be convenient for them to do so.

Mr Hughes:

– Certainly, and they may not be capable ; but the argument applies to both parties.

Mr JOHNSON:

– It must also be remembered that the Court may not sit always in the same place; but may remove from one State to another. The proposed excision of the words under discussion still leaves it optional to parties to employ counsel or solicitors, and there may be questions of law in regard to which either party may feel compelled to take professional advice.

Mr LONSDALE:
New England

– To disallow the charging of costs against either party will not prevent the employment of counsel ; but it has been suggested by the Minister of External Affairs that the secretaries of organizations might appear in place of lawyers. No doubt, if such persons were continually employed in the . Court, they would become even better versed in the provisions of the law, and in the procedure of the Court, than any barrister or solicitor who might be casually employed ; but, inasmuch as the organizations of employers do not generally have paid secretaries who devote the whole of their time to their work, it would place them at a disadvantage to have to be represented by their secretaries. Whatever we agree to should be fair to both sides. If we determine that counsel or solicitors shall not appear before the Court, the organizations of employers will be compelled to employ professional secretaries ; and I think that the result will be that the proceedings of the Court will be protracted quite as much as they now are. T do not think that it will shorten the proceedings to exclude counsel.

Mr Watson:

– Practical experience shows that it does. In New Zealand both sides agreed to the exclusion of counsel.

Mr LONSDALE:

– The arrangement suggested may shorten proceedings at the start; but I do not think it will do so afterwards. Whatever law we make should be absolutely fair to both parties.

Paragraph agreed to.

Paragraphs j to p agreed to.

Paragraph q verbally amended,’ and agreed to.

Paragraph r agreed to.

Paragraph s -

To summon before it the parties to the dispute, and witnesses, and to compel the production before it of books, documents, and things.

Mr. GLYNN (Angas). - I wish to make a suggestion to the Prime Minister. My attention has been called’ to this paragraph as requiring the production of books, and, in some cases, perhaps permitting the secrets. of firms to be exposed. In reply to suggestions, I said that the permission to examine books could not well be confined to the President ; for I recognise that it would not be proper to allow one member of the Court to examine the books produced in a dispute, and to refuse to allow the other members to do so. A compromise might be effected bv providing that there shall be no scrutiny of books except in regard to matters actually relating to the case in dispute. As a rule, when books are produced in Court, they are open to scrutiny from end to end, and we can readily understand that unions, whether of employers or of employes, would naturally be anxious that their trade secrets should not be open to the scrutiny of every one.

Mr Watson:

– We propose that the Court shall consist of one Judge.

Mr GLYNN:

– The lay members and assessors will be members of the Court ; they will have equal jurisdiction. A suggestion was made to me that the power to make this scrutiny should be confined to the President, but the objection to that proposal is that it would be unfair to have three persons adjudicating on a case, and only one cognisant of all the facts.

Mr Watson:

– Will the honorable and learned member look at clauses 92 and 93.

Mr GLYNN:

– I am aware that under those clauses provisions are made for penalties for improper disclosure of evidence ; but the penalty might not adequately cover the injury. The exposure of a trade secret might be far-reaching in its effect. I have no desire to move an amendment unless the Prime Minister can see his way clear to accept the spirit of my suggestion; but by way of further direction to the Court, I think it would be well to add at the end of the paragraph the words - for the purpose of reference to such of the entries or matters only as directly relateto the dispute.

Mr Watson:

– I think that that is a very fair proposal.

Mr GLYNN:

– In the majority of cases a Court will not allow a general reference to be made to the books produced in evidence, but the power exists to practically examine them, from end to end.

Mr Watson:

– If we added the words, “ relating to the dispute,” would not the honorable and learned member’s object be served ?

Mr GLYNN:

– No. The production of the books must be for the purpose of reference to such entries or matters only as relate directly to the dispute. I am prepared, however, to omit the word “ directly “ if the Prime Minister desires it. That would give the Court a very wide power of investigation, while, at the same time, operating as a ban against the examination of books from end to end by any agitator.

Mr Watson:

– I think that if the words, “ relating to the dispute,” were added, the examination of books would be limited in the way desired-

Mr.GLYNN. - But books brought before the Court may contain many entries other than those relating to the dispute. The rule is that when a book is put in as evidence, any part of it may be examined, lt is hard to determine what is relevant and what is not, and therefore books are often examined from end to end. Rules can be made to secure that books shall be examined only in regard to entries relating to the dispute in question, and when they come before the Court no other entries will be inspected ; but if my proposal were adopted it would make the Court all the more careful.

Mr Watson:

– I am prepared to accept the suggestion.

Amendment (by Mr. Glynn) proposed -

That the words “ for the purpose of reference to such entries or matters only as relate to the dispute” be added.

Mr. LONSDALE (New England).- It seems to me that even if the paragraph were amended as proposed, it would still allow books put in as evidence to be examined from end to end. The moment the Courtwas called upon to deal with the question of whether an employer could afford to pay a certain wage or not, the whole of hisbusiness arrangements would necessarily be submitted to it.

Mr Watson:

– But clause 93 provides against any improper disclosure.

Mr LONSDALE:

– In the New South Wales Arbitration Act there is a provisionsimilar to that in the proviso to clause 93.

Mr Watson:

– It is true that t’heproviso is the same; but under clause 93. a penalty of£500 may be imposed for disclosure of information obtained from the examination of books and papers without the permission of the Court.

Mr LONSDALE:

– I simply wish to be assured that this provision will not allow every matter to be examined. There have been many complaints in New South Wales, and I fear that under this paragraph it might be possible for a man to ascertain the trade secrets of his opponent. As long as the provision is safeguarded, however, I think that the provision will be a safe one.

Mr Watson:

– I think that, in view of clause 93, it is perfectly safe.

Mr CARPENTER:
Fremantle

– Under this paragraph the Court might direct the attendance of witnesses whom neither party was prepared to call, and I desire to know whether in such cases it would have power to grant expenses. A witness might refuse to attend unless guaranteed his expenses, more particularly if it would be necessary for him to travel from a distant State in order to appear before the Court. I should like to have the assurance of the Prime Minister that the Court, in addition to having the power to summon witnesses, will also have power to allow them costs. .

Mr WATSON:

– The honorable member may rest assured that the Court would not be likely to compel a witness to attend before it without granting an allowance to cover his costs. That is the universal practice. If a man is not a voluntary witness care is taken to send him sufficient money to enable him to appear before the tribunal, and I do not think that the Arbitration Court is likely to depart from that practice.

Amendment agreed to.

Paragraph, as amended, agreed to.

Paragraphs t and u agreed to.

Mr CROUCH:
Corio

– I was not present when paragraphh was under discussion, and although I have no desire to revive a general discussion on the clause, I would ask the Prime Minister whether he considers that the retention of the words “or that the dispute has been dealt with,” does not make, the paragraph inconsistent with clause 38.

Mr Watson:

– I think that that provision in paragraphh refers to a matter in respect of which an award of the Federal Court had not been made. The Court would have power to dismiss any such matter if it appeared to be trivial.

Mr Deakin:

– The paragraph relates to cases that might be sent to the Federal Court, but with which it considered the State Arbitration Court should deal.

Mr CROUCH:

– But the words “ or that the dispute has been dealt with,” are used.

Mr Deakin:

– If it does, not think that it is expedient to make a Federal award it will not be necessary to do so under this provision.

Mr CROUCH:

– I would suggest that the words “or is proper to be dealt with “-

Mr Watson:

– The paragraph cannot now be amended.

Mr CROUCH:

– I am aware of that. It seems to me, however, that section 38, which was drafted after this provision had been placed in the Bill, was an after-thought ; that it was the result of a suggestion, and that a new state of affairs would be created if paragraphh remained as at present. I should like the Prime Minister to consider the matter before the report stage is reached.

Mr Watson:

– I will do so.

Mr. LONSDALE (New England).- I may be in error, but it seems to me that no fault can be found with the drafting of the provision referred to by the honorable and learned member. Under paragraphh, the Court would have power to dismiss a complaint which it considered to be trivial, or that should properly be. or had been dealt with by a State industrial authority.

Clause, as amended, agreed to.

Clause 47 agreed, to.

Clause 48 -

The Court, by its award, or by order made on the application of any party to the proceedings before it, at any time in the period during which the award is binding, may -

prescribe a minimum rate of wages or remuneration, with provision for enabling some tribunal specified in the award or order to fix, in such manner and subject to such conditions as are specified in the award or order, a lower rate in the case of employees who are unable to earn the minimum wage so prescribed ; and

direct that as between members of organizations of employers or employees and other persons offering or desiring service or employment at the same time, preference shall be given to such members, other things being equal ; and

appoint, a tribunal to finally decide in what cases an employer or employee to whom any such direction applies may employ or be employed by a person who is not a member of any such organization.

Mr WATSON:
ALP

– I move-

That the words “ on the application of any party to the proceedings before it,” lines 2 and 3, be left out.

These words are used in clause 46, and the view of the Attorney-General is that it is unnecessary to repeat them. He thinks that the power given in clause 47 also extends, in this respect, to clause 48.

Mr KELLY:
Wentworth

– I wonder whether the Prime Minister will consent to recommit this clause if it is found out subsequently that the omission of the words may have an effect that is not contemplated ? A layman cannot be expected to suddenly grapple with a legal technicality.

Mr Watson:

– The amendment has been before the Committee for a considerable time.

Mr KELLY:

– I have heard no debate upon it, and have had no guidance with reference to it.

Mr DEAKIN:
Ballarat

– It is open to argument whether the words proposed to be omitted are essential, but a good deal can be said in defence of them.

Mr Watson:

– If there is much argument on the point I should prefer to leave them in the clause.

Mr DEAKIN:

– The clause says-

The. Court by its award, or by order made on the application of any party to the proceedings before it ….

That alludes to the preceding clause, which provides that -

No order or award shall be varied, and no submission shall be re-opened, except on the application of an organization or person affected or aggrieved.

The effect of those words is to render it impossible for the Court to make an order unless an application is made. They might just as well be retained.

Mr WATSON:

– I am informed by our legal advisers that the retention of the words - though they were not intended to minimize the power of the Court in dealing with matters of this kind - might be construed to minimize it They might be construed as compelling the Court to insist that an application must come from an original party ; whereas under clause 47 the Court is given power to exercise any of its powers on its own action, as well as on the application of any of ‘ the parties. Therefore, to make the words completely in consonance with clause 47 it would be necessary to insert the words, “ on its own motion,” in clause 48. I think’ it will be safer to strike out the words. I am afraid that their retention might have the effect of confining the Court in instances where it did not wish to be confined, and where the Court thought it ought to make an order on its own motion.

Mr. DEAKIN (Ballarat).- On further considering the clause, I am not satisfied that what the Prime Minister has stated is the exact position. If it be thought necessary to protect the power of the Court to act on its own motion, there can be no objection to introducing words to that effect. But I do not see why the Court needs to be empowered tei act on its own motion in prescribing a minimum rate of wage, or remuneration, or in directing that preference shall be given to unionists. As I have followed the construction of this Bill, both those powers are, so to speak, the secondary consequences of previous applica tions to the Court, which are being dealt with by an award. I fail to see at the moment that the words proposed to be omitted weaken the power of the Court to exercise its other powers on its own motion.

Mr Watson:

– Would it not be a proper thing to allow the Court to have that option under clause 48.

Mr DEAKIN:

– Why?

Mr Watson:

– Because under clause 47 we pretend to give to the Court power to exercise any of its powers, and then, apparently, we attempt to cut down those powers by clause 48. ‘

Mr DEAKIN:

– I think it was intended to cut them down in regard to these particular matters. Two main things and one subsidiary matter are dealt with by this clause. The minimum wage is of extreme importance, and the preference to be given to members of an organization is also extremely important. It appears to ha’ve been thought that the Court ought not to declare a preference to unionists, or to prescribe minimum rates, when no one asks for them. These were powers which were to be used by the Court as if an award was being varied or extended. A provision is made in the preceding clause that when orders or awards are to be varied and submissions are to be reopened, that is only to be done when some person who is affected or aggrieved has applied. As I have said, the provisions of this part of the Bill - the minimum wage and a preference to unionists - are most important, would require to be asked for by those affected, and would not be granted by the Court unless at the request of some person who desired them. Passing over its power to deal with the necessary matters which arise in the conduct of any case, the Court may, under clause 46, enjoin any person from committing a contravention of the Act. The Court does not need to be moved by , any one for that. It may declare that any practice, regulation, rule, or condition of employment shall be a common rule. There is nothing to prevent the Court doing that. It may direct within what limits the common rule is to apply, may dismiss any matter, make orders as to costs and expenses, and so on. Those are all matters largely of form, and they arise out of awards. There may be either common rules or specific awards, and the rest of the powers relate to the manner in which the Court may exercise them.

Mr Watson:

– If these words are left out, it would leave it to the Court to vary the original order.

Mr DEAKIN:

– The Court cannot vary an order except on the application of a person or organization affected or aggrieved.

Mr Watson:

– That is sufficiently provided for in clause 47.

Mr DEAKIN:

– There the Court has to have an application from the person or organization affected or aggrieved; but in clause 48 we are dealing, not with matters of form but of substance. They are all important matters. And in these cases an application should be made to the Court before an order is made. That is to say, an organization may bring a case before the Court. They may not ask for a minimum wage, or for preference for unionists. In the course of the case they may determine to ask for a minimum wage or for preference. Then the Court may grant it. But the clause says that if the parties do not ask for it, the Court is not, of its own motion, to inject it into the case That appears to me to be the plain meaning of the words.

Mr Glynn:

– The words “ by its award” cover more than that. Under the award the Court can do all that clause 47 allows.

Mr DEAKIN:

– Under clause 47 they cannot vary an award, except on the application of a person aggrieved ; and it is no ‘ limitation., but appears to me to be a wise provision, to give the Court power to do these things, but to add “ Do not unless you are asked to do so.”

Mr Watson:

-i do not think the words are very important.

Mr DEAKIN:

– No; it costs nothing to ask for a thing. The idea that appears to have been running in the mind of the original draftsman, the right honorable member for Adelaide, was that the powers under clause 47 should not, under clause 48, be exercised unless the Court were asked.

Mr WATSON:

– While I think that if the words contained in the amendment are retained, they may have the effect of limiting the power of the Court, I do not think that they are so important that it is worth while to insist upon their omission. I, therefore, ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr WATSON:

– I move-

That the words “ with provision for enabling some tribunal specified in the award or order, to fix in such manner, and subject to such conditions as are specified in the award or order, a lower rate in the case of employees who are unable to earn the minimum wage so prescribed,” lines 6 to 13, be left out, with a view to insert in lieu thereof the words, “ and if it think fit fix a lower rate (in the case of employees who are unable to earn the minimum rate so prescribed), or make provision for such a lower rate being fixed in the manner and subject to the conditions specified . in the award or order by the Court, or by some tribunal specified in the award or order.”

The idea of this amendment is to leave it optional with the Court to prescribe a rate lower than the minimum, or to fix- a tribunal which will have power to prescribe a rate lower than the minimum. The clause, as drafted, seems unintentionally to make the prescription by the Court mandatory. I do not think that that was intended, because in some employments there has never been any question about permitting certain people to work under a fixed wage. For instance, in the case of shearers and seamen there is a minimum rate of wages, and it is never suggested that there should be an exception for those who cannot- earn the minimum. I propose to leave it to the discretion of the Court, and, if reason be shown, as it’ might be shown in some classes of employment, the Court might make an order.

Mr Crouch:

-What is the meaning of “tribunal”?

Mr WATSON:

– The idea is to allow of the appointment of a trade committee” to arrange these detailed matters.

Mr Crouch:

– Why not allow one person to do it?

Mr WATSON:

– A tribunal could con- , sist of one person, I -think. We are correct in referring to the Court as a tribunal, and the Court may consist of one person. Similarly, it could delegate its power to one person.

Mr Kelly:

– The New South Wales Act contains practically the same words, and there, apparently, the Court takes power to fix a lower rate than the minimum rate in the case of aged persons.

Mr WATSON:

– I regard that as very necessary, and do not wish to take that . power away from the Court. But I do not wish to make it mandatory for the Court to arrange such matters, unless there is an application from either party. The clause as it stands may seem to compel the Court to do so. But in many cases it may be unnecessary.

Mr. DEAKIN (Ballarat).- This amendment raises a point which is worthy cf consideration. It makes an important change. The question is whether, whenever a minimum wage is fixed, there should be provision made to vary that minimum. It might or might not be varied at the instance of some person interested in those who are not able to earn the minimum wage. When the Bill was drafted, the view taken, with regard to this particular clause, was that to fix a minimum might often be desirable. It is a sort of common rule; a short cut to obtaining equality of treatment throughout a trade, and, as such, may be very valuable. But it was thought that this power, if it were to be used at all, might be undertaken by the Court, without that exhaustive investigation into all the details of employment in the business concerned, which would show whether it was or was not necessary to have provision made for a lower payment than that of the minimum wage, to those whose physical or mental qualities did not enable them to earn the minimum.

Mr Watson:

– That applies to a limited number of industries.

Mr DEAKIN:

– But the view of my late honorable colleague and of the late Government was that the application of the minimum wage on a Federal scale to disputes in industries extending beyond the limits of a State implied such a large area, - and such a great variety of conditions, that it ought to be an essential condition that there should be attached to the fixing of ,a minimum wage, in every case, the establishment of a tribunal which could allow a lower rate to be paid to men who could not earn (hat minimum. The proposal of the Government, so far, is reasonable in itself, but it involves an important distinction. The amendment provides that the Court may, if it think fit, fix the minimum wage without any provision for .1 lower rate. Consequently, no matter what the circumstances are, no person could then be employed except at that minimum wage, from which there could be no deduction. That is a very important change, and, on the whole, I think we had better keep to the Bill.

Mr Watson:

– Would the honorable and learned member compel the Court to erect a tribunal of this sort in regard to shearers and seamen? As to these men, there has never yet been any question about a lower rate than the minimum. The whole point is, whether the minimum shall be raised or lowered ?

Mr DEAKIN:

– I confess that cases may be cited on which a good argument may be founded ; I do not know enough of the particular industries to judge. But in those, as in any other cases, it may be desirable to fix a minimum below which there ought to be some special exceptions.

Mr Watson:

– It would introduce an unnecessarily disturbing element in the case of shearers, seamen, and men. of that kind.

Mr DEAKIN:

– That would only be done by specifying some tribunal in the award, and the Court fixes the tribunal. For instance, what I understand has been the practice in most industries is that the Chief Executive Officer on each side, with, if necessary, a third man, are appointed, and the Judge has said “ Decide amongst yourselves.” Such a tribunal does not act except with the consent of both parties.

Mr Hughes:

– Perhaps the Registrar might be added.

Mr DEAKIN:

– The Registrar might be added as a third person. I recognise that the proposal of the Government is not unreasonable; but, at the same time, it makes a serious change. The late Government were of opinion that the minimum wage was so important that it ought to be included; but at the same time we thought that, when applied federally over great areas, there were so many varying conditions that unless the proceedings of the Court, in the first instance, were to be made exhaustive by an inquiry into the circumstances of all the cases where it could apply, the probability was that the Court would altogether refuse to fix the minimum wage. The provision was inserted as a condition, so that the Court might without elaborate information feel that it was perfectly safe in fixing a minimum wage, by also appointing a tribunal satisfactory to both parties. If there were cases which, in its then knowledge, the Court did not foresee, and which it could not investigate without prolonged inquiry and expense, a tribunal could be appointed, representative of both parties,’ which would not be employed unless necessary. While the Prime Minister maysuggest occupations in regard to which such a provision seems difficult, I do not know, unless he is prepared to define them in the Bill itself, whether the amendment might not be made the means of throwing the door open to the application of a minimum wage without exception in every trade.

Mr Watson:

– The Court, in view of the language employed in the amendment, will always have regard to the issue as to whether it is necessary. It is a sort of indication to the Court that it should take the course, at all events, in such cases as it thinks proper. The clause as it stands, however, gives no alternative.

Mr DEAKIN:

– That is the question. If the Court think lit, it may do so. The amendment, I admit, does not take away the Court’s power.

Mr Watson:

– Not at all.

Mr DEAKIN:

– In the Bill, as it stands, it is made a condition.

Mr Groom:

– It is mandatory in the Bill.

Mr DEAKIN:

– It is a condition precedent in every case where a minimum rate is fixed. The question is whether we ought to let the provision remain, or whether we ought to accept the proposal of the Government, which allows the Court to do as it likes. According to the amendment, the Court may, if it thinks fit, fix a minimum rate without the condition precedent ; and this raises a very important issue.

Mr HUGHES:
Minister of External Affairs · West Sydney · ALP

– There would appear to be a danger in the clause as it appears in the Bill. Although the clause says that the Court may fix the minimum wage, it insists upon the Court appointing a tribunal to fix a lower rate; the appointment of this tribunal is an imperative task on the Court in all cases. Therefore, if the minimum wage be fixed at 8s.” per day, a tribunal may follow which will fix a rate at 7s., 6s., or 5s., as individuals, or the class of individuals concerned, may seem to warrant. There would appear to be a sort of contradiction in terms, if it is to be imperative that this tribunal shall be appointed ; if the appointment is to be within the discretion of the Court, that is another matter. A minimum wage, so far as I understand, means a wage which is regarded as fair, on the whole, tobe paid to the persons in a trade; and, under the amendment, if it appears that in that trade there are certain duties which can be performed by persons who are not able to earn, or ought not to be paid, the full amount, the Court may make certain arrangements in regard to such persons. Under the clause as it stands, it is imperative on the Court to appoint this tribunal. I will take as illustrations the trades mentioned by the Prime Minister. First of all, there are the shearers, for whom there is one rate of£1 fixed in New South Wales, a rate of 17s. 6d. in Victoria, and, I believe, a rate of£1 in South Australia,

Mr Watson:

– It is one price all over a State.

Mr HUGHES:

– In the State of Queensland the rate is also £1.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– That is for piece-work.

Mr Watson:

– It is a minimum rate.

Mr McCay:

– It is not a minimum rate of wages.

Mr Watson:

– It is remuneration - a minimum rate of wages or remuneration.

Mr HUGHES:

– The rate for seamen is fixed, and no man is paid under that rate. It is of no use talking about a second-rate seaman ; such a man ought not to go to sea.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– There are ordinary seamen.

Mr HUGHES:

– Ordinary seamen receive a minimum rate, and so do A.B.’s; but the rate for the latter is higher than that for the former. These distinctions are made by law as well as by custom. Wharf labourers receive1s. or1s. 3d. an hour, as the case may be, and no distinction is made in the case of individuals. When the matter was discussed in New South Wales, arguments were brought forward in which the services of individual men were contrasted ; but in that State it has not been found desirable to fix a second rate. In certain callings, however, the case is different. For instance, the minimum rate for painters was fixed at 1s. or1s.1d. per hour, with a minimum of lod. per hour for those unable to do the best work. But the painting trade permits of such distinctions being drawn. A man who can grain, or do dadoes, or stencilling, is much more valuable than a man who can do only plain brush-work ; the trade itself seems to indicate grades of excellence.

Mr Wilks:

– The trade makes its own classification.

Mr HUGHES:

– Practically that is so, and apart from piece-work, it is desirable in some trades to fix a second rate to provide for old men who otherwise would find no place at all. In shearing, each man has to do equal work, and, as in the case of the seamen, all are paid the same rate. Occasionally there may be an elderly man employed, but he is compelled to do the usual amount of work. The number of such persons in any occupation of the kind is infinitesimal, and to provide for them would be to lower, or to tend to lower, the average rate for the whole. Shearers, wharf labourers, and seamen represent the three principal industries ; but I do not deny for a moment that there are a number of trades, such as boot-making and tailoring, in which a second rate might with advantage be introduced. The amendment, however, ‘ covers all such cases. The amendment gives the Court power, if it think fit, to fix a lower rate, and it does this in a way for which the original clause does not provide. The amendment proposes that the Court may - . . . if it think fit, fix a lower rate (in the case of employees who are unable to earn the minimum rate so prescribed), or make provision for such a lower rate being fixed, in the manner and subject to the conditions specified in the award or order of the Court, or by some tribunal specified in the award or order.

It will be seen that there are .three ways by which such cases can be met under the amendment, as against the one way provided in the clause. The Court, according to the clause, may not fix the lower rate, but must appoint a tribunal to do so. Our experience is that in some cases it is best for the Court to fix the lower rate, while in other cases it is advisable to appoint a tribunal for that purpose. I should like to point out to the Committee two classes of cases, one in which it is desirable that the Court should . take action, and another in which it is desirable for a tribunal to be appointed. In the case of a trade which, as pointed out by the honorable member for Dalley, practically classifies itself, the Court may with safety fix the lower rate; as, for instance, in the painting trade, where a man who does a certain kind of work is paid is. an hour, while the man who does only plain brushwork is paid lod. But where there are occasional cases of old men, or men who cannot quite keep up to the pace, a tribunal is desirable, because it has to deal with individuals, and rare occurrences.

Mr Willis:

– What about a young man who is tired?

Mr HUGHES:

– A tribunal would be the best authority to deal with a tired man. I think the cases which have been cited as objections are much better met by the amendment than by the clause, the former giving, as I have already pointed out, three alternative ‘ methods, to be used as occasion may require. That is better than an imperative direction to take one course.

Mr McCAY:
Corinella

– In Victoria we have had a good deal of experience of this matter in connexion with the numerousWages Boards which have been appointed. Notwithstanding the good those Boardshave done, one thing became apparent assoon as we had experience of their work. That was the necessity for making provision for what in Victorian politics was colloquially termed “ the old or slow worker.” That was the point of attack on which those who disapprove Qf Wages Boards legislation continually launched their efforts. I do not care what the pay may be; it seems inevitable that, wherever the rate is time rate, and not piece-work rate, a provision of this kind must appear. The individual case is almost invariably the case that has to be considered, and not the case of a class ; the provision does not seem tome to be aimed at a class. The cases referred to by the Minister of External Affairs, in justification of the amendment as compared with the clause, seem to me such as could be met by a proper classification of work, and not of workmen,, in the award.

Mr Watson:

– The Court would have to appoint a tribunal under the clause of the Bill.

Mr McCAY:

– Because, so far as wages, as contrasted with piece-work payments, are concerned, whatever rate of wages may be fixed there will be found men who: through age or inborn slowness, without any fault on their part, are unable to keep up and* earn the current minimum rate. Undoubtedly that has been the experience in Victoria.

Mr Watson:

– No one objects to that;, but does not the honorable and learned member see that in respect of remuneration which is not wages, but piece-work payment, the duty is cast on the Court under the Bill as originally drafted, of erecting a tribunal to do something which will never be required?

Mr McCAY:

– If “ remuneration ‘ ‘ bears that meaning, I cannot understand how piecework rate can be affected by that particular question. But if that be a sound objection, it is not met by the amendment. It should be met in another way, by making it clear, if necessary, that it applies to wages rates as contrasted with piece-work rates. It should be a compulsory accompaniment to the fixing of a minimum wage to have in existence some tribunal to deal with the cases of those who are not able to earn that rate. I do not think we should allow the charge to be made, with any appearance of justification, against any legislation of this kind that it means the extinction, as far as trade is concerned, of the old or slow worker. In his remarks the Minister of External Affairs almost said that it did, and ought to mean that. I was very much surprised to hear him speak in that way. Possibly he did not intend his words to convey’ the full meaning which was conveyed to my mind, when he said that there were some trades in which the old and slow workers ought not to work, but ought to go out and make room for younger and more vigorous men. I do not agree with that spirit of legislation. Youth has quite enough advantages, and age quite enough disadvantages, without our accentuating them bv our legislation, if it can be possibly helped. So far as I am able to judge, the Bill is more wisely drafted in this respect than is the amendment. I believe in the principle of a minimum wage ; but there are very weighty and powerful arguments which can be adduced against it.

Mr Watson:

– The Court cannot settle disputes without having the power to prescribe rates.

Mr McCAY:

– I know that; but, quite apart” from that fact, I have always supported the principle. We should proclaim, not only to the Court, but to all concerned in Australian industry, that while we empower the Court to prescribe a minimum rate of wage in proper cases, it is accompanied with the compulsory order that it shall always have in existence a tribunal to provide for the special cases. The amendment provides that the Court mav. if it think fit, fix a lower rate. The Minister of External Affairs talked of contradictions in terms in the Bill as it stands. But is there not a much bigger contradiction in terms in the amendment?

Mr Hughes:

– I said when it was imperative it was a contradiction.

Mr McCAY:

– The amendment reads -

And, if it think fit, fix a lower rate (in the case of employees who are unable to earn the minimum rate so prescribed).

What does that mean?

Mr Hughes:

– If the case should call for it.

Mr McCAY:

– If it said that the Court may fix an average rate, and in cases where it cannot be earned a lower rate, it would be comprehensible.

Mr Watson:

– It is just the same in the Bill.

Mr McCAY:

– The Bill specifically draws attention to the fact that .the. lower rate is a rate practically for specific cases.

Mr Watson:

– And so does the other.

Mr McCAY:

– I do not think so. At any rate there is a second alternative. In its award the Court cannot fix a lower rate for specific cases. That is the difference between the amendment and the Bill. The Bill says the Court has to appoint a tribunal which is to fix the lower rate when the case arises, but the amendment says that the Court is to fix a lower rate without, perhaps, having the circumstances of the individual cases before it.

Mr Watson:

– No; it says that the Court may do that, or may refer the matter to a tribunal.

Mr McCAY:

– I am speaking of the possibility. The Court is authorized to fix a lower rate than the minimum rate that is to apply in cases which are practically undefined, before it is aware of whether the circumstances will justify it or not. Is the Court to say that the- minimum rate is is., but that only iod. may be paid in the case of employe’s who cannot earn the shilling. That makes the minimum rate iod., and not is.

Mr Hughes:

– That is not usually understood. A trade classifies itself - for instance, where a- man can do only plain work he gets so much.

Mr McCAY:

– The Court can attend to that matter without this amendment; in its award it can classify the work.

Mr Hughes:

– Quite so; but the honorable and learned member says that it must erect the tribunal without knowing the requirements.

Mr McCAY:

– Whatever rate is fixed, people will be found who cannot earn the rate to the profit of the employer.

Mr Watson:

– There are some industries in which those people who cannot earn the amount never go, because it is useless for them to apply under present conditions.

Mr McCAY:

– This Bill will not help them to apply. The Prime Minister means that the tribunal may be erected in industries in which no one will ever apply for permission to work at a lower rate. In that case the tribunal will certainly do no harm, if it does no good; but, by leaving the Bill as it stands, we make a public proclamation that we recognise that these cases may arise, and that wherever they arise the tribunal is available for them. It is not for the Court to say that, even although the course of business has been that these cases have not arisen up to the present, they will not arise. This is a kind of alteration which does no specific good, but gives a reason for dissatisfaction with the Bill, perhaps unjustifiably. It is an amendment which, at the very best, simply saves the creation of a tribunal occasionally when it is never going to act. There is no harm in having a tribunal which is never going to act. What do we lose in exchange for this problematical gain ? We lose a legislative declaration that we admit the cases of old and slow workers, and are determined to provide for them on all occasions when they can possibly arise. I would urge the Government to leave paragraph a as it stands. They have little to gain - it may not be that they have much to lose- but they have something to lose by taking away the compulsory character of the tribunal, because they give an opportunity to persons for saying that circumstances may arise in which, to almost quote the language of the Minister of External Affairs, these old and slow workers had better stay out of the industry, instead of trying to get work in it.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– I cannot admit that the argument of the Minister of External Affairs impressed me when he made the distinction between the paragraph and the amendment that the one seems to indicate that the minimum wage shall not be the minimum wage, whilst the other does not.

Mr Watson:

– They are both faulty in that respect.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– I think if there is any indication of that fact it is in both provisions. But I do see the need of a provision such as both the clause and the amendment contain. One of the great difficulties about legislation such as we have had of late years - and some of it has been in some ways useful legislation - has been that the less fit have been going to the wall more and more every day. This legislation, however beneficial its objects may be, and even if in some cases its result is good, means that when the remuneration is fixed by law, only the man who can give a return for the remuneration will receive employment.

Mr Hutchison:

– That has not been the case in Victoria with the Wages Boards.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– Where a minimum wage has been fixed without any power of reducing that wage, it has been and must be.

Mr Tudor:

– In Victoria they have power to give special permits.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– Wherever there is no power it leads to the injury of those who are less fitted than their fellows to perform the work, and some provision is necessary. The amendment provides that the Court may fix the reduction from the minimum. I do not see very well how it will be able to do that unless it inquires into individual cases.

Mr Watson:

– It may delegate its authority, though I do not think that it will be clone very often.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– I do not see how it can. I can quite see that it may exercise power, as the Minister of Externa] Affairs stated. In the case of painters, for instance, the Court may allow so much for the better-class workmen, such as grainers, and so much for the other workers ; but it can do so under the Bill as it stands.

Mr Watson:

– As part of the award.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– It can subdivide the award according to the grades recognised in the trade; but, as regards fixing a minimum award for those who are less fit, I think that the Court would very seldom be found doing so, and, if it did, it would have its hands full all the time.

Mr Watson:

– But the amendment goes further ; it gives the Court power to delegate that authority if it thinks fit.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– It empowers the Court, if it thinks fit, to delegate that authority to some other body or tribunal, while the Bill itself simply says’ that there shall be a tribunal in connexion with each trade. That tribunal, I suppose, would consist of persons interested in the trade - employers and employes - who would decide according to evidence brought before them, and who might give exemptions, such as is done under the Victorian system, to men to work for a lower wage. I do not like a multiplicity of tribunals, but I think it is better that the wages should be fixed by a tribunal which has been considering the trade from day to day, and is acquainted with new improvements and inventions, and is likely to keep its policy in line, and so provide against an inequality of decisions, rather than by a body, differently composed from time to time, and not following a certain line of decisions. I think that under these circumstances the provision in the Bill is better than’ that in the amendment. Ministers even might see that. The option given to the Court is hardly ever likely to be exercised, but if we appoint some body to whom its powers are delegated, it is better that we should appoint a permanent body,, a bodv named for the purpose, though not necessarily paid, whose members would have the whole position of the trade before their eyes, and could, therefore, give much more equal and much fairer decisions than are to be expected from some occasional body to which the Court might choose to refer its decisions. I quite recognise, that the intention of the Prime Minister is a good one. He does not wish to have so many tribunals.

Mr Watson:

– It seems to me that the clause as it stands provides for the creation of unnecessary tribunals. Seamen, wharf labourers, and others would not be affected.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– In the case of wharf labourers and others, the amendment involves the exclusion of those less able to work.

Mr Watson:

– That is an unfortunate feature of the calling, with which no Court can interfere.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– In the case of sailors it does not make the same difference, because the great bulk of sailors’ work is such as not to need the full powers of an active man.

Mr Watson:

– There has been a minimum rate on the coast as long as there has been a union, without the Court interfering.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– I would prefer the clause as it stands, with a provision that the tribunal be only appointed on the application of one of the parties to the dispute. In connexion with the different trades, there might be a tribunal appointed - not necessarily paid - consisting of persons connected with the business affected, and these tribunals should have all the cases which are bound to arise referred to them.

Mr WATSON:

– The only object the Government had in proposing the amendment was to prevent the unnecessary duplication of tribunals. I do not consider that the clause, as it stands, can do harm, bevond providing conditions that are useless. The mere fact of compelling the Court to erect a tribunal in respect to a dispute arising, say, in connexion with the shipping industry, would do no injury to the parties concerned, because they simply would not take advantage of it, but it seems unwise to provide for the creation of bodies for which there will be no work, because of the conditions prevailing in the calling in connexion with which the dispute arises.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– Would it not be well to amend the clause, so as to provide for the establishment of these tribunals upon the application of either party ?

Mr WATSON:

– That would do very well, and I am willing to withdraw my amendment to permit of the moving of an amendment which will have that effect.

Amendment, by leave, withdrawn.

Mr HIGGINS:
Attorney-General · Northern MelbourneAttorneyGeneral · Protectionist

– I understand from the Prime Minister that, in deference to the feeling of the Committee, he has agreed to amend paragraph a so that it shall be obligatory on the Court to make special provision as to old and infirm workers when it prescribes the minimum rate of wage or remuneration, if any party to a dispute, or any organization or person bound by the award, should ask it. At the honorable gentleman’s request I have written out a few words which I think will meet the object. I have not much faith in drafting at a table in the hurry of debate, but probably the amendment I intend to propose will sufficiently express the purpose of the Committee. If afterwards we find that it does not, we shall ask the Committee to reconsider the wording of the paragraph. I move -

That the word “with,” line 6, be left out with a view to insert in lieu thereof the following words, “ and in that case shall on the application of any party to the industrial dispute, or of any organization or party bound by the award, make.”

The paragraph would then read -

Prescribe a minimum rate of wages or remuneration, and in that case shall on the application of any party to the industrial dispute or of any organization or party bound by the award, make provision for enabling some tribunal specified in the award or OTder to fix -

And so on in the words of the paragraph as it stands.

Mr McCay:

– That would not require a subsequent application to be made in that hearing.

Mr HIGGINS:

– The provision might be made in the award or afterwards.

Amendment agreed to.

Mr JOHNSON:
Lang

– I move-

That paragraphsb and c be left out.

One is contingent on the other, but I object to both, as they involve an infringement of the right of free choice on the part of either employers or employes, and they also involve a denial of the right of individual liberty. This is one of the most objectionable clauses in the Bill, because it distinctly attempts to set up one of the worst forms of class legislation, and to create an aristocracy of labour. I think it is sometimes a very good thing that workers of every description should band themselves together in organizations for the protection and advancement of their mutual interests. I have no objection to that, but I desire that perfect freedom of individual action on the part of every member of the community to take that course, if he or she thinks fit, shall be maintained. I object to anything in the nature of coercion or compulsion, and that is practically what these paragraphs amount to. I object entirely to the narrow interpretation of the term “labour” which seems to be generally accepted by the Labour Party as we find it constituted in the Federal Parliament. Notwithstanding all the professions of honorable members directly representing labour interests that they represent all classes of the community there is a tendency on their part to regard the term “ labour “ as applicable only to manual workers who are members of trades unions. The general purpose underlying this Bill is to endeavour, as far as is practicable, to induce both employers and employes to form some kind of recognised organizations. I do not object “to that, provided that freedom of action is the basic principle of our legislation. But when there is a disposition, such as is shown by this clause, to force people into certain lines of action, I think it right to point out that a tremendous amount of hostility is likely to be raised, not only against this clause, but against the Bill as a whole. Our honorable friends opposite would be just as anxious to avoid that as are the members of anyother party represented in the Committee. I confess that I have no particular faith in the efficacy of legislation of this kind as a means of securing any permanent improvement in industrial conditions, but, having entered upon that legislation, we require to make it as perfect as we can, and we should try as far as possible to allay outside irritation. Unfortunately, .every attempt in this” direction is hailed by the Labour Party as hostility to the Bill. ‘ I may not have much faith in its efficacy ; I am not hostile to it ; but I wish to give it a fair trial under the best conditions we can secure. Instead of the basic principle of this Bill, which should be conciliation, being kept in view all the time, there will be a disposition on the part of a great manypeople outside to look- upon the measure as designed to promote conflict rather than conciliation. I do not think it can be the desire of those who are anxious to see this measure in successful operation, that a feeling of this kind should be created outside. Yet it must be patent to anyone who will take the trouble to consider the matter even briefly, that a provision of this kind must necessarily at once raise a prejudice against the Bill in the minds of many people who might otherwise be favorably disposed towards it. They will very properly regard it as an attempt to legislate entirely in the interests of one class of workers occupying the position of a minority amongst the workers of the Commonwealth. On the one hand, there should be absolute freedom of choice to the employer to engage whomsoever he will, irrespective of whether the individual to be employed is a member of a union or not. On the other hand, there should be absolute freedom of choice to the employe’ to accept service from any employer whether he is a member of a> union or organization, or not. While I grant that facilities and reasonable inducements might very well be held out to both employers and employes, on the ground that it would be to their mutual interests to form organizations, I object to any attempt to force these people unwillingly, to become members of organizations, anr! a preferential provision of this kind must have that effect. I should like to pointout also that there is absolutely no necessity for such a provision. If the best employers, on the one hand, are the members of an organization, then the natural’ tendency of those seeking employment will be to find it with those employers. If, on the other hand, employers find that thebest employes are members of trades unions,’ they will naturally give the preference totrades unionists, without any provision of this character in the Bill. They will doso for commercial reasons, because tradesunionists will be the best men they canemploy, and the men from whose work they can secure the best results. The naturaltendency will be that all the best men will’ endeavour to become members of theseorganizations. At present, as I have said,’ trades unionists form but a small minorityof the whole of the workers of the Commonwealth. I think that in New South-‘ Wales the total number of unionists is> something under 67,000. No one will: contend for a moment that 67,000 persons represent anything like the whole, or even a very large proportion, of the total workers of that State. I have not the figures as to the actual number of workers in the Commonwealth; but it is certain that they cannot be estimated at less than ten times the number of those who are members of trades unions. This legislation, giving a preference to unionists, is therefore an attempt to exclude the great majority of the workers ot Australia. I am speaking on behalf of the workers of Australia who are not members of trades unions. Since they are undoubtedly in the majority, they should receive fair consideration, though I do not claim that they should receive more consideration than those who are members of unions. I believe in the principle of . equal liberty and justice ; and non-unionists, who constitute the vast majority of workers in Australia, have, at least, as much right to be considered as have members of unions. Neither this nor any other Legislature has any right to differentiate in a matter of this kind between one citizen and another. All persons, whether members of unions or not, should be equal in the eyes of the Legislature, and whatever arrangement may be made as between private individuals or organizations, there should be no attempt on the part of the Parliament to differentiate between one set of employes in an industry who are within the ranks of a union, and another set in the same industry consisting of men who are not. In support of my contention that the unionists are in a minority, I would call attention to some instructive figures compiled by the Victorian Actuary of Friendly Societies. They show that within the space of eleven years a great falling off took place in the membership and funds of unions in this State.

Mr Mauger:

– The figures relate to registered trades unions, and cannot be accepted as a criterion.

Mr JOHNSON:

– I thank the honorable member for his correction. The figures relate to registered trades unions, and it must be borne in mind that under this Bill unions will be registered. In 1890, there were seven registered unions in Victoria, having 139 branches, a membership of 49,600, and funds amounting to . £38,650. In 1901, eleven years later, there was the same number of registered unions, but the number of branches had fallen awav from 139 to. 36, a difference of 103 ; and the total member ship had fallen from 49,600 to 8,800, a difference of 40,800.

Mr Mauger:

– The figures show on their face that they are of no value whatever in determining the membership of trades unions in Victoria.

Mr JOHNSON:

– The funds in 1901 had decreased from £38,650 to £1,985, a drop of £36,665, and this falling away is said to be typical of other trades unions.

Mr Hughes:

– Does the honorable member say that those figures give an accurate reflex of the condition of affairs in Victoria either in 1890 or at the present time ?

Mr Higgins:

– Those unions will not be registered under this Bill.

Mr Mauger:

– The figures quoted by the honorable member relate to benefit societies.

Mr JOHNSON:

– No. They are registered trades unions. I do not say that these figures are accurate, but I give my authority for them, and quote them only by way of illustration. It will be for other honorable members to test them. It may be that some explanation can be given for the very large decrease which they show, and I shall be pleased to hear any explanation of the matter. The strongest registered union in Victoria is the Amalgamated Miners’ Association - I presume that no one will say that that is a purely benefit or friendly society - and I find that while, approximately, the number of miners in Victoria is 30,000, there are only 8,276 in the union. Thus, if a preference is to be given to trades unionists, it will mean, in the case of the miners of Victoria, a preference to 8,276 as against 21,724. In view of the authority I have given for these figures, I presume that they may be accepted as correct, and that being so, they unmistakably prove that the majority of workers *would derive no benefits from this Bill. They show, in fact, that we are asked to legislate in the interests of the minority. Members of the party, represented by the Ministry, have declaimed as loudly as any one against the injustice of minority representation, yet in this Bill they are proposing to legislate in the interests of the minority. I admit that the Bill was not drafted by the Government, but having adopted it, they are just as responsible for it as the original framers. The Bill was framed at a time when the Labour Party practically controlled the Ministry from the cross benches.

Mr Mauger:

– Nonsense.

Mr JOHNSON:

– I would ‘ remind the honorable member that the right honorable member for Swan, in one of those characteristically frank utterances for which he has obtained some notoriety, unmistakably showed that that was the case.

The TEMPORARY CHAIRMAN (Mr McDonald:
KENNEDY, QUEENSLAND

– I do not think that that matter has anything to do with the question before the Chair.

Mr JOHNSON:

– I merely referred to it in reply to an interjection. I would draw attention to another matter which is patent to all, and to which Ave must not close our eyes. Whilst an attempt is being made in this Bill to give a preference to trades unionists, there is a disposition on the part of some unions to close their books against the enrolment of new members, and to make close corporations of trade societies. We must have regard to that fact. In view of the provision in this clause that a preference shall be given to unionists, an attempt is being made to limit the number of men who should be admitted into the ranks of the unions. This means that the great bulk of the workers will be deprived, under this Bill, of an opportunity to secure employment. What can be said of a Labour Government which aims at the practical exclusion of the great body of the workers from the benefits of a measure that is said to have been framed in the interests of the workers of all Australia ?

Mr Wilson:

– It is a Bill to create monopolies.

Mr JOHNSON:

– It is a Bill which will create close corporations of unions of either employers or employes - a Bill, the benefits of which will extend to only a small section of the industrial workers of the Commonwealth. It would be little short of a criminal act against the great democracy of Australia if we passed it in its present form; and I for one shall most strenuosuly oppose every effort to do so. A circular issued by the secretary of the Federated Saw-mill and Timberyards Employes’ Association to its members affords an interesting illustration, of the attempts that are being made to make close corporations of unions. ‘ I propose to read it in, order that honorable members may learn the underlying motive of this proposal. The circular was published in the Argus a few days ago. , .

Mr Page:

– Why not obtain a copy of the circular instead of quoting from’ the

Argus? That newspaper is always lying, about these proposals.

Mr JOHNSON:

– My purpose will be served by quoting the Argus. If an incorrect statement had been made, it would no doubt have been contradicted ; but, so far as I am aware, no contradiction has appeared. The circular is as follows : -

Trades Hall, May 30th, 1904.

Dear Sir, - Your attention is called to the following resolutions that were passed at our last meeting, and in view of the I Federal Arbitration Act becoming law, you may be placed in a position that is not at all desirable-

Honorable members will see that this letter was sent out in view of the probability of this measure becoming law -

  1. That after 24th June, 1904, the entrance fee be increased to five shillings.

They have already endeavoured to put a barrier in the way of increased membership by raising the entrance fee in view of the passing of this Bill.

  1. That all members owing more than two quarters be struck off the books, and henceforth treated as non-unionists.
  2. If you think you should not be struck off, you can appeal to the Executive, and they will inquire into your case.

The circular does not promise that those who complain will be restored to the full benefits of membership. No guarantee is given that as the result of the inquiry their position will be improved. The circular proceeds -

The secretary will be at room ig, Trades Hall, every Friday night, till 24th June.

This is. one instance of the tendency on the part of trades unions to put obstacles in the way of intending members, and to make the present unionists really members of close corporations. That is an attempt which should be strenuously opposed.

Mr Watson:

– The Government agrees with the honorable member that it should.

Mr JOHNSON:

– This is an attempt to create an aristocracy of labour to create a monopoly within the ranks of unionism, which is in the highest degree undesirable.

Mr Watson:

– We agree with the honorable member that it is desirable to prevent trades unions becoming close corporations.

Mr JOHNSON:

– I repeat that there is a tendency to make close corporations of trades unions. A case in point came before the Arbitration Court of New South Wales yesterday. Last night’s issue of the Evening News states that -

The matter of the refusal of the Sydney Wharf Labourers’ Union to admit three waterside workers to membership was the subject of considerable interest when before the Arbitration Court to-day. The men refused admittance to the union were - then follow their names.

In an affidavit by the three workers, they severally said that they were willing to join the union, but were not able at the time to pay the entrance fee and annual subscription, which amounted to the sum of £1 per man. In February they together proceeded to the registered meeting-room of the union in St. Philip’s Schoolroom, Church Hill, Sydney, having previously arranged with Charles Jackson, a financial member of the union, to propose their admission to membership, and arrange a seconder. They applied for admission, but were informed that they would not be able to join, and that the books were closed to the admission of any new members whatsoever. Holmes and Briggs attended several times at later meetings, to be told on each occasion that the books were closed.

The President of the Court pointed out that the Court had, of its own motion, asked the parlies to attend, in order to make any representation that they might wish. The condition of the award would require modifying to bring it into line with the conditions that had been laid down lately, and which allowed any person, provided he was sober, honest, and competent to be admitted to a union, on payment of a limited subscription and entrance fee, and without any method of election. He alluded to what he had said at the time the common award was made, and held that the action of the union had been autocratic and tyrannical in the extreme.

Those are strong words, coming from the President of the Arbitration Court. I have quoted them as showing the tendency to make these unions close corporations, and to prove the necessity for this legislation guarding particularly against anything of that kind occurring. Later on I propose to submit an amendment by way of a new paragraph to clause 67, of which I gave notice some time ago, whereby any union which attempts to close its books wil 1 be excluded from the operation of the Bill.. That will cover an association on either side, because the same argument applies equally to employers and employes.

Mr Watson:

– The Government have already intimated that they will propose an amendment to secure that nothing of that kind can occur.

Mr JOHNSON:

– I am glad to hear that. It is very necessary for us to safeguard the Bill, so that the interests of the great majority of the people will not be injuriously affected. I do not attribute to the Government for one moment a desire to make the unions close corporations, or to make this Bill apply only to certain sections of workers. But I am quite certain that the Bill in its present form, with these provisions included, will have those effects. I have always held that the term worker is very comprehensive, and embraces all those who are engaged either in mental or physical occupations. If this Bill is to be of any benefit at all it is necessary that the utmost facilities shall be provided for workers of every description, and for all kinds of employers to combine in some voluntary system of organization. But when we attempt coercive measures - and Bills of this description amount to coercion - we set up a form of obnoxious tyranny which invites the sternest and most hostile criticism from all sections’ of the community who have any sense of right and justice. I appeal to the Government to consider this clause carefully. The omission of paragraphs b and c bv no means necessarily implies that preference will not be given to unionists, but will leave a free choice both to employers and em ployes either to give employment to those who are members of organizations, or to accept employment from members of organizations. It will not affect the general scope of the Bill, except in the one respect ; that it will abolish objectionable coercion whether it be intentional or otherwise. This coercive feature is one of the worst characteristics of the Bill, because it denies to a man the free choice of employment with any person for whom he wishes to work, or whom, in the case of an employer, he wishes to empiov.

Mr. HUGHES (West Sydney- Minister of External Affairs). - The honorable member for Lang seeks to take away from the Arbitration Court the right to give a preference to unionists. I do not think that he has made out his case. It is perfectly true that he has quoted some instances in which unions have excluded persons. The Prime Minister has said that he proposes to insert a clause to provide against that kind of thing.

Mr Ewing:

– To provide absolutely against it?

Mr HUGHES:

– To provide against excluding persons. Practically the rules of unions have to be submitted to the Registrar, and to be of such a character as will permit of the entrance of any qualified person. It . isproposed in -clause 6,7 to insert a new paragraph, to provide that the registration of any organization may, under certain circumstances, be cancelled, and that the rules of a registered organization shall provide reasonable facilities for the admission of members. This provision, giving a preference to unionists, is of the very essence and nature of such a piece of legislation as this. First of all, let us consider the present position of unionists, and what this law proposes to do to them. As things exist to-day, a unionist may do any one of a number of things. He may decline to work with a non-unionist. This Bill takes that power from him. He may go on strike. This Bill takes that power from him. Henceforth he may neither go on strike nor decline to work with any person whom the award does not exclude.

Mr Deakin:

– Where is he prevented from refusing to work?

Mr HUGHES:

– I say that he is prevented from going on strike. If the honorable and learned member thinks that question an answer to my assertion, I point out that the whole difference between unionism and individual effort is that a unionist does not go on strike by himself. If he did his action would have no effect. In addition to his going on strike, at the same time and by pre-arrangement ninety or 100 or 1,000 other persons refuse to work. We take away that right from them. They may no longer refuse to work in bodies. They previously had that right, and by means of that right they were frequently able to put themselves and their fellows in a better position. Sometimes, of course, they placed themselves in a worse position. Anyhow, they submitted everything to the arbitrament of the sword. Sometimes they were successful, and sometimes they were unsuccessful. But under this Bill they can no longer use this weapon. It is for the benefit of the public that it is taken from them. The public takes this sword from the hands of the unionist. It says - “You must not refuse to work with a non-unionist, and you must not go on strike.” It also says to the employer, incidentally - “You must not lock out your men.” The Bill takes away rights that certain people now have. The honorable member for Lang thinks that men are .parting with a portion of their liberty under this measure. He appears to agree with the unionists. of Great Britain and the unionists of America, who think that the surrender of the right to strike in return for such legislation is a mistake. But the unionists of Australia say that they are prepared to surrender that right in return for this Bill.

Mr Johnson:

– A strike infringes the equal right of some one else.

Mr HUGHES:

– A state of war precludes the idea of any one else’s interests being considered. When a general proposes to give battle to an opposing army, does he say to the commander on the other side - “ If it is convenient, your excellency, we shall be prepared to give you battle tomorow, at 10 o’clock in the forenoon, providing it is not too hot or too cold, and that the conditions are all suitable “ ? He does not ; nor does he bother whether, in making war, he lays the country through which his army passes in ruins.

Mr Johnson:

– The act of striking is itself an encroachment on the liberty of others.

Mr HUGHES:

– The fact that it does infringe the liberty of somebody else is not to the point ; the fact is that a unionist was able legally to strike. Under this Bill he will be able to do so no more.

Mr Johnson:

– Not necessarily legally ; it was by force.

Mr HUGHES:

– We are talking about the law, and the law said, “ You can strike.” That which was illegal he could not do. The law now steps in and says, “You may not strike, let alone anything else.” It is proposed to take from the unionists the right to strike; and, having done that, to say, “ You cannot strike, nor refuse to work with a non-unionist, and we do not propose to give you any preference.” The Bill contemplates organization.

Mr Kelly:

– And also industrial peace.

Mr HUGHES:

– The Bill contemplates organization, and disputes between organizations of employers and employes, and between no one else; individuals are not contemplated. I should like to point out that even without this provision the Court would have power to give preference to unions.

Mr Johnson:

– If the Court would have the power without the provision, why insert it?

Mr HUGHES:

– Since the honorable member is good at conundrums, I will ask him one. Seeing that the Judge has the power without the provision, what is the good of striking it out ?

Mr Johnson:

– Because it is obviously superfluous.

Mr HUGHES:

– Are we to understand, then, that the honorable member who, in his oration quoted statistics, and treated us to extracts, being a purist in the English language, and a draftsman who understands these things to a nicety, protests against the superfluity of the provision ? He protests, not because the paragraph strikes a blow at human liberty, but simply because it annoys him, by reason of its superfluity. How absurd !

Mr Johnson:

– The absurdity is on the side of the Minister.

Mr HUGHES:

– When the honorable member can contrive, during his spasms on behalf of liberty, to talk a little to the point, we shall be able to get on a great deal faster. All I say is that the law was clearly laid down by the Full Court of New Zealand, in the case pf Taylor and Oakley v. Mr. Justice Edwards and others. This was an appeal by Taylor and Oakley, plumbers and gasfitters, against a decision of Mr. Justice Edwards, that preference should be given to unionists, and it was heard before the Full Court at Christchurch in 1900. The Court decided that the Act, which contained no specific words - no such clause as this - nevertheless gives power to the Court to give preference to unionists. Chief Justice Stout, in his judgment, said - .

The industrial Conciliation and Arbitration Act, 1894, was passed to provide a means of settling labour disputes. . . . It is clear that all’ disputes that may arise between employers and employes are not within the jurisdiction of the Court. The Court has jurisdiction over what is termed in the Act “ “industrial-disputes.”. . . . Individual employes - employes not belonging to any union or association - are excluded from the operations of the statute, and employers cannot bring before a board or the Court any dispute between them and their workmen if the workmen are not members of some union or association. If it be the case that there are several thousands of workmen who do not belong to any union or association, it will be seen that the statute has a limited application, for nonassociated workmen have no status under this statute. . . . The question is, can the Court declare that non-associated workmen shall only be employed by employers if there are no workmen of equal ability and qualifications belonging to unions or associations - can the employers be compelled to give a preference to tradesunionists “ ?

That was the point. Chief Justice Stout went on to say -

Non-associated workmen have, as it has been said, no status in the Court of Arbitration.

Incidentally, here he decided that freedom of contract, as such, was absolutely ignored in the Bil] ; that this was a reversion to status, as opposed to contract, as undoubt edly it was. The Act concerns organizations, and neglects altogether persons outside organizations. This Bill provides for persons forming organizations; and I should like to point out that 100 persons may form an association. That is not very many over the whole of the Commonwealth. Chief Justice Stout went on -

In construing this Act, the aim of the statute cannot be ignored. It does not, as I have said, propose to provide a means of settling disputes . between the employers and non-associated workmen. . . . The Court has, in my opinion, power to give a preference to unionists, even though non-unionists are not heard by the Court, and not allowed to represent their case. The Court, as I have said, can control the privileges of employers, and can fix the status of workmen, or the class of persons that can be employed. Whether the Court can, or cannot, give a preference to workmen belonging to one union over workmen belonging to another union is not before us. If it were before us, I should think it was doubtful if such a power could be exercised by the Court. The learned Judge in the Court below pointed out that non-associated workmen could easily acquire the status of tradesunionists. Five workmen, or five workwomen can form an industrial union. This Court has no control over the Court of Arbitration in matters within its jurisdiction. …” Industrial matters,” as defined in the statute, seem to me to include every kind of possible dispute that can arise between an employer and his workmen. AU contracts regarding labour are controlled, and may be modified or abrogated. The Court can. make the contract or agreement that is to exist between the workman and the employer. It abrogates the right of workmen and employers to make their own contracts. It, in effect, abolishes “ contract!” and restores “status.” The only way the Act can be rendered inoperative is by workmen not associating or not joining any union; for, as has been said, the statute cannot deal with unassociated workmen.

I shall not read the judgment at length, although it is very interesting. The three members of the Court unanimously upheld the judgment in almost similar terms; and it was then laid down clearly that, without this specific provision, the Court has power to give preference. It was incidentally held by the Judge of the Arbitration Court that he had power to give preference to one union Over another union.

Mr Glynn:

– If that was the cause of the dispute.

Mr HUGHES:

– This was an appeal, and I do not know what was the cause of the dispute; it does not appear from the report of the case. Taylor and Oakley had been asked by a decision of the Court to give preference to certain unionists, and, declining to do so, they applied for a writ of prohibition, with the result I have described.

Mr Glynn:

– Because that was the cause of dispute; it could be settled in no other way.

Mr HUGHES:

– This was not an industrial dispute. As I say. I do not know the cause of the original dispute, which, however, has nothing to do with the case. Inherent, then, in this class of legislation is the right to prefer unionists ; and if no preference is given, this Bill, instead of being a good thing for unionists, will be the worst in the world. It takes away the right to strike, and binds unionists hand and foot. Having taken the weapon of strikes away, we are asked to say to unionists - “ You may go out and get a job, and if you are successful, well and good.” It has been said that the unionists are in a minority in this country ; and, having deprived the compact minority of their weapons, we tell them to go and get work if they can, but that the majority will have a much better chance. Unionists according to my friend, are in a minority ; if they cannot strike, nor decline to work with the non-unionists, what earthly incentive will there be to join an association? Absolutely none, and since this Bill deals only with organizations, one of two things must follow from the achievement of such an object as the honorable member has in view. What union is going to Court to get an award if no benefit is to follow? If unionists are in a minority, what benefit can they get? And they are to get no preference. If an employer having been beaten in a case, is able to say, “Oh, very well, you got an award against me, but I will not employ any one of you ; that is the penalty for getting the award.” unionists will decline to take advantage of such legislation, and it will become a dead letter. Unionists, as such, would, under those circumstances, be deprived of their right to strike, and would have no incentive to bring a case before the Court. The Court would say, “Very well, we give an award, but we do not give it to you; we give it to anybody the employer likes to employ, and do not even say that old employes must have the best right; we do not say that any one of 500 men employed by a firm must be preferred to any 500 strangers ; there is to be no preference of any kind.” Injustice may be done just as readily by giving preference to men in one employ, and refusing to allow those men outside to have the same chance, as by giving a preference to non-unionists.

Mr Johnson:

– There will always be a natural preference for the best men.

Mr HUGHES:

– I am not speaking about natural preference. An employer. I suppose, will always employ those who suit him best. The point is that we are erecting machinery for the purpose of doing certain things, and not one of those things can be taken advantage of unless organizations take advantage of them. If organizations see that there is no incentive to take advantage of the Act, because no benefit can be gained, the Act will become a dead letter. If a union can be penalized, what benefit will it gain by taking advantage of the law ? It would be infinitely better to incur all the penalties of the measure, or to leave the union and let the union go to ruin. If honorable members are bent on destroying unionism in the country, let them declare themselves to be enemies of trade unionism as such, and say that this Bill ought not to give any sort of benefit or preference to unionists - that is, not trades unionists, but industrial unionists. The Bill is based upon the .principle, as Sir Robert Stout pointed out in his judgment, of substituting for contracts between individual employers and employes, registered agreements between bodies of workmen and bodies of employers. It is now said that neither one nor the other ought to have a preference over unassociated men. If the preference, which is naturally in the Bill, is not destroyed but still inheres, all I have to say is that the striking out of the provision will be absolutely superfluous. In this measure we have over and over again inserted declaratory provisions, which by implication flow naturally, but nevertheless are rendered more certain and clear by being set down in so many words. That is often done in Bills, and has been done repeatedly in the Bill before us. In the New South Wales, New Zealand, and Western Australian Acts this provision is to be found. Since New Zealand, after an experience of five or six years, found that it was a desirable thing to put in that provision, that without preference the Act was but dry bones, and that until that judgment was given unionism was simply at a disadvantage, instead of at an advantage ; since, in all the Acts we have throughout Australia this provision is included, and since it is perfectly clear that the unionist, is denied under this measure the right to use the only weapon which is his, and by which he is able to get anything, we should at least confer on him those privileges which are contemplated, and one of them is that, other things being equal, he should have a preference over the non-unionist. How does that exclude the non-unionist? I utterly fail to see how it does.

Mr Johnson:

– How does it include the majority if they are not unionists?

Mr HUGHES:

– First of all, they may join an industrial organization, there is nothing to stop them doing so. It is proposed in the amendment suggested by the Prime Minister that an award shall only be granted on the condition that any man” may join a union. Mr. Justice Cohen says -

If they were sober and honest and competent to be admitted to a union on the payment of a limited subscription, they ought to be admitted.

That is his idea. I would like to remind honorable members that after all it was on the words of the Judge, and against my counsel, that the wharf labourers decided to close their union.

Mr Johnson:

– If the honorable and learned gentleman will read a passage in a later part of the judgment, which I did not quote, he will see that Mr. Justice Cohen repudiates that imputation.

Mr HUGHES:

– I shall read the passage when it is found by my honorable colleague. I wish to make this point perfectly clear, that the non-unionist suffers no injustice by reason of that preference. If he is a more competent man he is to be employed. Then, again, he may join a union, and so get employment.

Mr Kelly:

– Compulsion !

Mr HUGHES:

– I do not deny for a moment that there is a certain inducement there; a compulsion, if honorable members l ike to put it in that way. I would remind the honorable member for Wentworth that there is nothing improper in that, because it is contemplated by this Bill. I understand that he is against the Bill. But to those who believe in the spirit of the Bill, there is nothing improper in a man having an inducement tq join a union because it contemplates dealing with organizations. It will require an organization to put the measure in force.

Mr Watson:

– It all depends on organization.

Mr HUGHES:

– Undoubtedly. It contemplates and depends on organization ; otherwise it would be a dead letter. It is proposed by the amendment of the honorable member for Lang, to say to the organizations - “You are to have no sort of benefit. You are going to pay this penalty for putting the Act in force. As soon as you increase the wages of all the people in your trade, that moment you will kill your union.”

Mr Lonsdale:

– The honorable member has admitted that it may reduce the wages.

Mr HUGHES:

– I have not admitted it, but I shall be glad to do so now, if it will be of any service to the honorable member.

Mr Lonsdale:

– The honorable and learned gentleman believes that it will increase the wages.

Mr HUGHES:

– Before the measure can be put in force for any purpose, a union will have to move, and one of the effects of raising or lowering a rate of wages will be to utterly destroy the union that brings the matter before the Court, unless preference is given to the members of that union.

Mr Johnson:

Mr. Justice Cohen said -

There is nothing in the award that could bring any intelligent mind to the conclusion that the Court countenanced any such exclusion as had been disclosed.

Mr HUGHES:

– At page 145 of volume 1 of the Industrial Arbitration Reports and Records, honorable members will find this passage -

The President:

– We have no control over the union rules so far as the internal government of the union is concerned, except that we can lay down conditions of labour. The Court may impose conditions which are opposed to union rules, and in that case the union rules would have to give way, but this is a matter in which we cannot interfere, as it regulates the internal constitution or the personnel of the union. We have no power in this case to allow the union to suspend the operation of its rules. It has nothing to do with anything now before us, or with the outside conditions of labour. It may be that, notwithstanding the rule, the executive may exercise a discretion, and say, “ Notwithstanding our rules, we cannot see our way to accept any more members.” That is my impression. I do not know that any one has a legal right to go to your union, and say, “Here are your rules; you must admit me.” Therefore, it may be, the union might take the risk, and say, “ We will close our books now for a month or six weeks.” As a Court, we have no power to interfere in that particular matter on this application.

Mr Kelly:

– On that particular application.

Mr HUGHES:

– That is the Judge’s answer to an application asking what is to be done to prevent incompetent members from joining the union. I shall read a little more from the book, because evidently this matter is of importance. On page 143 I find this passage -

The President:

– The Court has been asked to make some suggestion with regard to giving the union a discretionary power in adding to its members. Speaking for myself, I think it would be a reasonable thing if the executive of the union did exercise some discretion over the admission of members to the union - that is, in the way of requiring any person who wishes to join the union to give some reasonable proof that he is a competent or efficient wharfman. Perhaps the union might make a rule with regard to this; and, if a question were to arise as to its validity, the Court could determine whether the rule was a reasonable one. The stevedores say that they cannot always get competent men. They have a reasonable ground for saying that if they are restricted to members of the union, the union should be in a position to provide them with a sufficient number of competent men. It seems to me that the union would, in some measure, enhance its reputation as a labouring body if it could give a reasonable assurance to those who sought labour from its ranks that any man who came from the union was efficient and fairly reliable.

Mr Hughes:

– I understand that the Court will look favorably on any reasonable restriction on persons wishing to join the union.

The President:

– That is my opinion.

I see that on page 146 Mr. Cruickshank says -

I take it that the principal object is to prevent incompetent men from joining the union. If it were proposed to make a rule to say that on and after a certain date that there will be no more members admitted, that would exclude good men as well as bad. But, as I understand it, the intention is to exclude the undesirable men who are not physically fitted to do the work.

Mr Hughes:

– I understand the President’s opinion to be that no man has a right to say to the union, “You must admit me.” Merely handing the money requisite for obtaining a ticket of membership does not, I understand, constitute a right to be admitted.

The President:

– I have not had time to consider the question, but I have given my personal impression on that part - it is not an opinion.

On the question of saying “We will not allow anybody to come in for a certain time,” Mr. Justice Cohen gives an opinion in reply to an application. I am not for a moment contending that under any circumstances a union ought not to exclude any but the incompetent. I should like to point out something which apparently is not to be found in that report, and that is - that although the Wharf Labourers’ Union did exclude certain persons by closing its books, it included every one of the 11.000 labourers of the Federation of Waterside Workers throughout Australia, who, on a transfer card, could have come in, and the whole of the members of the Seamen’s Union who are elidible to come in at any time. So that there was an ample supply of competent men ; and. further, I venture to say that, as regards the 3,500 members of the Wharf Labourers’ Union, more or less, there is not work for more than 1,500, though I still say that they ought not to have closed their books. I have given,. I hope, sufficient reason to show that the union acted on the suggestion of the Judge. In my opinion, to take away from the unionists this right of preference is to take away from them that which this measure is designed to confer. At the same time, it will confer no privileges upon them. Having regard to what occurred in 1890, and it was in consequence of it that the provision relating to conciliation and arbitration was inserted in the Constitution, the man who can calmly contemplate the possibility of another such industrial conflict without a tremor, is indeed a stout-hearted citizen. But honorable members propose to take away the solitary motive for putting this measure when it becomes law into force. Every man can join a union if he likes. If a minority of the citizens of the Commonwealth are unionists how can they exclude the majority ? Each unionist can only do one man’s work, and if he is not employed a non-unionist must be employed. Therefore, by the honorable member’s reasoning, every non-unionist who is employed at the expense of the unionist does an injustice to the unionist by being employed. All we ask is that, all other things being equal, the unionists shall have a preference, and that entrance to a union shall be free, provided that competency can be shown. That condition ought to be insisted on. Unless employes are to be allowed to say, “ We have men in our industrial union, and we will guarantee that they are competent men,” what is the utility of having a union ? But competence, sobriety, and good character, which ought to distinguish citizens, whether unionists or non-unionists, ought to be a sine qua von of membership. That being the case, it is essential that we give preference to unionists. The Bill contemplates it, and it would be given without’ any specific clause to that effect ; but, inasmuch as every other Act of the kind in Australia contains a similar provision in set terms, I see no reason why we should not adopt that now proposed.

Mr McLEAN:
Gippsland

– If I understand the arguments of the Minister of External Affairs correctly, he contends that the unionist is entitled to a monopoly of the labour market as the price of the privileges which he is asked to surrender under the Bill, those privileges being the right to refuse to work with a non-unionist, and the right to go out on strike. I am not aware; however, that the unionist has a monopoly of these privileges. The non-unionist may, if he chooses, refuse to work with a unionist, and, if he chooses, may go out on strike. He, too, is called upon to surrender both privileges under the Bill. I admit at once that, in my opinion, unionism has done a great deal for labour in Australia. Labour to-day owes to unionism a great many of the privileges which it enjoys, and, if my advice were asked by any working man as to whether he should or should not join a union, I would not hesitate to recommend him to join one if he could do so conveniently. But I regard this provision, which virtually compels all men to join unions, whether they do or do not think it wise to do so, as a serious infringement of the civil rights of the people, and unjust, oppressive, and tyrannical to the last degree. The people are asked to give up that which is dear to every free man, the right to exercise their free will in all matters affecting their individual interests exclusively. If this provision becomes law, it will shock a great many persons who still regard this Parliament as being what every Parliament should be, the guardian of the rights and privileges of the people. Parliament should be a body to which the weak, as well as the strong, may at all times look for justice. But what are we now asked to enact ? The provision virtually tells the people that if they are not prepared to join unions, even though they may have conscientious scruples against doing so, they must give up their present means of living, or leave the Commonwealth. What alternative has a man who is deprived of his means of living but to starve or leave the Commonwealth ? . If Parliament passes such a law, Australia will be a very good place to get away from, and certainly not a place for a free man to live in. Why should we compel a man in a matter of this kind to do that which he is not willing to do?

Mr Mauger:

– Every law in the statute- ‘ book does that.

Mr McLEAN:

– The laws to which my honorable friend refers interfere with the exercise of a man’s will where that exercise prejudices the ‘rights of others. The whole trend of the Bill now before us favours unionism, and I do not object to that. I do not object to inducements being held out to persons to join unions, and, in my opinion, free labourers will see that it will be to their advantage to do so; but to compel those who may have conscientious or other scruples about joining unions to do so is what.no Parliament of a free people should attempt.

Mr Watson:

– It is done every day in the case of ordinary laws.

Mr McLEAN:

– My honorable friend will, I think, have some difficulty in instancing a parallel case.

Mr Ronald:

– What about the law of vaccination ?

Mr McLEAN:

– If a man refuses to allow his children to be vaccinated, he is compelled, in the interests of the public health, to pay a. slight fine; but his means of living is not taken from him, and he is not reduced to the necessity of leaving the country.

Mr Watson:

– What about the laws regulating dairies? If a man does not comply with them he is prevented from continuing in the dairying industry.

Mr McLEAN:

– Under the laws referred to, men are required to comply with certain conditions, compliance with “which is necessary in the interests of the public health. If my honorable friend can instance no better parallel than that, I advise him to give up the attempt to produce one.

Mr Hughes:

-. - What about the honorable member’s own factory legislation ?

Mr McLEAN:

– That does not compel men to join unions.

Mr Hughes:

– It compels men to pay certain rates, to observe certain conditions, and to work their employes only for certain hours.

Mr McLEAN:

– We do not object to providing for all that in the Bill, but the honorable and learned gentleman asked whatbenefit the unionists will derive from the Bill if thev are not given a preference over non-unionists. The benefit they will derive is this : If they are under-paid, or required to work unduly long hours, or labour under disabilities of any kind with which the Court will have power to deal, they may have their grievances redressed. Surely it is not just that, in addition, they should have a monopoly of the labour market, or that we should attempt to cornpel those who choose to remain outside unions, notwithstanding the disadvantages of that position, to become unionists.

Mr Ronald:

– We induce them to do so ; we do not compel them.

Mr McLEAN:

– It is proposed ‘ that we should induce them by taking away their means of living if they will- not otherwise do so. If a man, urged by this compulsion, joins a union the leaders of which are unduly aggressive, so that the union is mulcted in the maximum penalty of £1,000, will it be just to compel him to pay his share of the fine ? Or will Parliament come to his rescue, and pay the penalty? Not at all. It would be a glaring injustice to force any man into such a position.

Mr Webster:

– We do not force men to join unions.

Mr McLEAN:

– What is the alternative offered ? If a man does not join a union he is deprived of his means of living. That is the meaning of this provision. It requires the non-unionist to. stand down, so that the unionist may take his place.

Mr Hughes:

– It does not mean anything of the kind.

Mr McLEAN:

– In my opinion it does mean that. It says that preference shall be given to unionists.

Mr Hughes:

– “ May,” not “shall.”

Mr Glynn:

– The definition clause shows that preferential employment is one of the objects of the Bill.

Mr McLEAN:

– In the sub-clause, “ shall “ is certainly used. The meaning is what I have said it to be, although “may” is used in the early part of the clause. What is the object of the provision if it is not intended to do what I say ?

Mr Mauger:

– To give the Court power in certain cases.

Mr McLEAN:

– Why should we give the Court power?

Mr Mauger:

– There are very strong reasons whv we should.

The TEMPORARY CHAIRMAN (Mr.

McDonald). - I ask honorable members to cease from interjecting. I can hardly hear the honorable member for Gippsland speak. As we . are in Committee, every honorable member will have the right to speak as often as he chooses.

Mr McLEAN:

– It is not necessary for me to labour this matter. My objection to the provision is a very strong one, and I have already stated it. I regard the provision as an infringement of the rights of the people. Parliament should not attempt to compel any section of the community in matters affecting their individual interests solely to do that which they are unwilling to do. This is one of the most unjust and tyrannical proposals which has yet been submitted to an Australian Parliament.

Mr CARPENTER:
Fremantle

– I must thank the honorable member for Gippsland for his very honest admission of the benefits which unionism has given to the worker, as well as for the admission that - I was going to say with all his prejudices against unionism - he would yet advise the workers to become members of trades unions. Up to that point I am in agreement with him, but I wish that his acquaintance with unionism were practical rather than theoretical. If it were not merely a matter of theory we should have been spared his somewhat strong denunciation of this clause, which, he asserts, is. solely designed to compel non-unionists to become members of unions. That is not the object of the clause. I am prepared to hear the objections that have already been urged against the clause raised again and again before it has been finally passed, but they appear to me to rest more on a theoretical than a practical acquaintance with unions ‘and their practices. We have had from the honorable member for Lang a. very pronounced statement in opposition to the provision, based entirely on the theoretical objection to interference with the liberty of the subject. He told us that if this clause became law it would restrict personal liberty. The answer to that statement is obvious. Every law we pass must be a restriction on personal liberty, and those who, like the honorable member, preach the doctrine of laissez faire seem to forget that they are voicing doctrines which were discredited half a century ago by the best thinkers of the age, and have, been discarded by every man who claims to be in touch with modern politicoeconomic thought. The . honorable member informed us also that an attempt was being made by compulsion - and I need hardly remind him that compulsion is the basis of all our laws - to secure benefits for unionists as against non-unionists.

I emphatically deny that we are seeking to do anything of the kind. We are attempting by using the machinery of unions and by taking advantage of the efforts of unionists, to do something that will benefit not only unionists, but every person engaged in an industry. What is the use of saying that we are seeking to obtain some special benefit for a particular class, when we know that if this clause were passed it would apply to all persons, whether unionists or not. Those who have any knowledge of the matter will admit that in the States in which local Arbitration Acts are in operation, non-unionists have derived as much benefit from them as have unionists. If they are honest, they will also admit that non-unionists could not have secured the benefits of such legislation had not certain of their fellows organized themselves into unions, and made the passing of it possible. Objection was taken by the honorable member for Lang to a circular issued a few days ago by the Federated Sawmills and Timberyards’ Association. The honorable member sought to make us believe that in view of the introduction of this Bill that association was bringing pressure to bear upon its members, as well as upon non-unionists engaged in the industry, to compel them to remain or to become members of the union. I fail to discover any connexion between the probable passing of this measure and the issue of that circular. As all who are familiar with the working of unions know, there are occasions when it is necessary for every_ union to use a whip of the kind referred to. Sometimes members’ contributions fall into arrears ; sometimes men think that they have obtained billets for life, and no longer need the protection of a union - a mistake which they often prove to their cost - and these persons need a reminder of the benefits of unionism in order to bring them back to their old standard. So far as I can gather, the issue of this circular was intended to have that effect, and had no ulterior motive. The honorable member who quoted it did not seek to prove that there was any connexion between it and this Bill. We have also heard a good deal of an attempt on the part of the Sydney Wharf Labourers’ Union to exclude certain persons from its ranks. I am as strongly opposed as is any one to any attempt on the part of a union to make itself a close corporation, and to exclude from its ranks those against whose competency nothing can be said.

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

-Who are to be the judges of their competency ?

Mr CARPENTER:

– A union has surely some right to judge of the fitness of applicants for membership ? I have yet to be convinced that, even in the case of the Sydney Wharf Labourers’ Union, there was not some objection that could be urged against the men who were excluded. Nothing to the contrary has yet been said, and it may transpire that the attempt to exclude the men in question was made after due inquiry, perhaps, by other unions. , Inquiries are often made by one union on behalf of another, and no objection is taken to the practice. ,

Mr Kelly:

– If there had been any objection to these men, surely the Court would not have decided against the union ?

Mr CARPENTER:

– I do not admit that a union would put forward any financial objection. The union of which I am a member, for example, claims that membership shall be in the nature of a hall-mark - that it shall be some evidence of a man’s qualifications as a tradesman. When a man is so provedly unskilled that he should not be allowed to join, we exclude him, not because we do not de-, sire him to become a unionist, but because his membership would lower the status of the union, and so injure all the members. No objection can be taken to the action of any union, and more particularly a union of craftsmen, that excludes men from membership on that ground. I assure those who have not a close acquaintance with unionism that there is no attempt to exclude men for the purpose of cornering a market. Even if unions were to resort to such a practice, they would simply imitate what is frequently done in commercial life. Workmen could not be blamed if they were sruilty of attempting to do in connexion with the labour market what is often done by importers and manufacturing and trading classes in respect to their businesses. ‘ Merchants and others attempt again and again to corner a market, and we know that they sometimes succeed. Some of them are ready to stoop to almost any practice to shut outcompetition, and yet we hear of no denunciation of the wickedness of such a system. As soon, however, as an attempt is made to exclude a man from a union, we have many honorable members holding up their hands in horror, and, regardless of what the reason may be, denouncing it as an effort on the part of unionists to establish close corporations, and to create an aristocracy or’ labour. The Minister of Home Affairs has already referred to the case of the Sydney Wharf Labourers’ Union. I would point out, however, that, apart from this Bill, they have at present the power to exclude persons from their ranks, and that this measure is really an attempt to provide a remedy. The clause, instead of having the effect suggested by the honorable member for Lang, would have the opposite result. We have an illustration in the very case he quoted. The union to which he referred sought, for some reason or other, to exclude certain men from its ranks, but the State Arbitration Court - a tribunal similar to that which we seek to provide for the whole Commonwealth - stepped in and said in effect - “You are now’ seeking to do something’ which, in our opinion, woul’d be unjust, and, therefore, we place a ban against your proposal.” It will thus be seen that, even from the stand-point of those who object to the clause, the Bill would provide a remedy for the evil they suggest. It has been pointed out that one justification for the proposal to give the Court this power is that the unions, by accepting legislation of this kind, have given up the only weapon which they have hitherto been able to use in their own defence. I refer to the power to strike.

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

– They have a better weapon left - the franchise.

Mr CARPENTER:

– I am not so sure of that. Speaking as a practical unionist, I doubt whether the benefits which unionists will receive from this measure, as well as from similar State laws, will wholly recoup them for the loss of the power to strike. There are many unions which today would prefer to resort to the old order of things - to stand in their own strength, and to fight their own battles, rather than to be made subject to a measure of this kind. Those who, like myself, take any prominent part in unions have found it difficult to persuade some of the unions that it is better that they should accept legislation of this kind than adhere to the old methods of industrial warfare. To those who are opposing this Bill I should like to say that we are not seeking, in advocating provisions of this kind, to do that which is likely to please our unions. We might be doing better from a personal point of view by championing the maintenance of ‘the old condition of affairs. The unionists themselves are not enthusiastic in their demands for this legislation ; but they recognise, as we all do, that the old method of settling disputes by means of strikes re-acts, not. only upon themselves, but upon others who have no part in the dispute, and who are often innocent sufferers when industrial disputes occur. The action of a non-unionist, even under the present system, and in the absence of arbitration laws, frequently causes a good deal of bitterness and strife in our industrial life. ‘ We legislate for men as we find them, and we know from practical experience that there is a considerable number of persons, in all walks of life, prepared to take advantage of anything placed within their reach, no matter what it may have cost others, and who never subscribe a ‘ sixpence towards the cost of securing those benefits. Our unions have to bear the cost of their organization. The subscriptions are sometimes such as their members can ill afford. Then the passing of Conciliation and Arbitration Acts in some of the States has resulted in a painful surprise to the unions when they have discovered how much it costs to conduct a case. Frequently, as much as £200 or £300 of their funds have been swallowed up in bringing trivial disputes before the Court. This money comes out of the . pockets of men who, as a rule, earn small wages. When men make such sacrifices, not for their own benefit only, but for the common good, and after their money and energy have been sunk to avoid strife, or to settle disputes by more pacific means, it is somewhat mortifying to have others coming along who say - “ We are going to - take all the benefit that you have been striving to attain, but we are not going to pay a sixpence towards the cost of securing it.” It will be for the Court to say whether a preference shall be given to unionists. If the indirect result of giving a preference is to bring other men into the unions, does any honorable member say that they are being treated unjustly? I know that it is popular to get up and talk about “ the liberty of the subject,” but, as a matter of fact, we are always interfering with the liberty of the subject. Not only by means of the laws which we pass in Parliament, but in our social relations, very few of us, when it comes down to the last analysis of things, are allowed to do what we individually might wish to do. Even if the result of this legislation may be to compel men to rejoin unions, no great hardship will be done. In fact the balance of advantage will be altogether on the other side. Courts of Arbitration in Western Australia, New South Wales, and New Zealand have similar powers. If there were any abuse of those powers, I am sure we should have heard a great deal about it. But so far as T arn aware there have been no serious complaints as to any of these Courts having stretched its powers in this direction. I speak subject to correction, but I do not know of any case in Western Australia where the Court has ordered a preference to be given to unionists. Indeed, the Court has rather inclined in the opposite direction. . Frequently there has been a feeling of soreness on the part of labour organizations when’ they - have found that a mere handful of men outside their ranks have been allowed to ‘ flout them, and, while taking all the benefits which their efforts have secured, to remain outside the unions. There has been a good deal of bitterness that preference in these cases has not been given to unionists ; and it has been’ demanded that the Western Australian Act shall be amended in the direction of giving the Court, not only power which can be exercised when it thinks fit, but a direction to say that under certain conditions preference shall be given to unionists. I do not know that Ave need advocate that here. Let us trust the Court. Our experience so far does not cause us to hesitate in that direction. We can trust the Court to exercise this power just as we trust the Court to exercise its judgment in reference to the common rule, and, in fact, in relation to every power that we shall confer upon it by passing this measure. I hope that the Committee will not be led aside by any theoretical objections to taking the facts as we find them in three States where similar legislation has been passed.

Mr. DEAKIN (Ballarat).- I am unable to agree with that part of the argument of the Minister of External Affairs in which he pointed to this as a compensation to be granted to the employes for their surrender of the power to strike. As I understand this Bill, the compensatory sacrifice on the part of the employers is the power to lock out, and the surrender by them of that power balances the surrender by the employes of the power to strike.

Mr Watson:

– Not by a long way.

Mr DEAKIN:

– I dare say that the employers would also disagree from an opposite stand-point. I am free to admit that the whole of this Bill exhibits, if it be carefully examined, a sort of vertebrate construction, in which every part on the one side is balanced by a similar part on the other. Employers and employes are treated with absolute equality, except in regard to this preference. Under this Bill there is a preference to employes, but not to employers, and I have yet to hear of any device by which it would be possible to grant the latter preference. It is the one thing in the Bill in which, so far as I can see, there is no balance by a concession on the other side. Honorable members, in the course of the discussion, have spoken continually of the preference to unionists. There is no power to give a preference to unionists under this Bill. There is a power to give preference to members of organizations, who in the case of employes will no doubt generally, if not always, be unionists. But it is not a condition precedent that a member of an organization should neces sarily be a member of a union. The measure may be applied to those unionists who are members of organizations, or to those non-unionists who may choose to join organizations.

Mr Johnson:

– The term” unionists “ is used in the side-note to the clause.

Mr DEAKIN:

– It is used in a misleading side-note, but side-notes are not a part of an Act, and this one will no doubt be corrected later. The honorable member for Lang has called attention to one important set of considerations, which most of us have had in our minds, with regard to this matter of preference. The organizations, it is pointed out, might be constituted into close corporations, and, if so, the effect of the Bill would be to create monopolies. Against this there has been a very general sentiment which has been expressed on the other side of the chamber, as well as by honorable members on this side. Indeed, at an earlier hour this afternoon the Prime Minister supplied me with a draft suggestion of his for a new paragraph, to be introduced in clause 67, in order to meet this very difficulty. In this proposed new paragraph the Registrar is given power to cancel the registration of an organization on several grounds, so that it would cease to have any of the privileges and powers of an organization under this measure. The clause itself provides, as I think, and as he thinks, an ample remedy in this regard, but in order to make it perfectly plain that no advantage is intended to be taken, by the creation of these organizations, to permit of their being turned into industrial monopolies, the Prime Minister was prepared to propose a new provision which would give the power of cancelling an organization to the Registrar if the rules of the registered organization did not provide reasonable facilities for the admission of members. The Court would decide what were reasonable opportunities. It seems to me that if we went so far we ought to set out at length the various points on which the Court, as well as the Registrar, would require to be satisfied, and on which the Registrar would act if not satisfied. Finally, after an addition was made to the proposal by the honorable and learned member for Indi, I have here the complete provision, which I will venture to read to the Committee. The new proposal, which would be paragraph c1 to clause 67, confers upon the Registrar the power to cancel the registration of any organization if its rules do not provide -

Reasonable facilities for the admission of new members, or impose unreasonable conditions on the continuance of membership, or are in any way so as to be tyrannical or oppressive.

It seems to me that these powers are alreadyincluded in paragraph a of clause 67, but this provision sets out in plain language what is the intention. It is that an organization under the Bill shall be an open corporation - open to every member who is reasonably able to prove his competence to enter it ; and that a means shall not be given of favouring one part of the organization against another. By extending the existing power conferred by the clause, we should remove the apprehensions of the honorable member foi Lang, and those who have been following the same line of argument.

Mr Carpenter:

– - “ Oppressive :’ is a very wide term.

Mr DEAKIN:

– It is a legal term that is well known in the Courts. I understand that the Prime Minister sees no objection to it. It strengthens the powers which are already conferred, as a matter of fact, by the first paragraph of clause 67.

Mr Johnson:

– I gave notice of a new paragraph, c c, ton similar effect three weeks ago.

Mr DEAKIN:

– I had not seen it until just how. I will read it -

That a registered organization has refused to admit new members or has failed to provide facilities for the admission and enrolment of new members.

That, is exactly the same in intention as the first part of the provision which I have read : though this provides for the continuation of membership and for the protection of men who are subjected to tyrannical or oppressive conditions. I have admitted that the proposal now before the Committee is one which, so far as I can see, is not counterbalanced by- anynew privilege to the employers. But, with that exception, may I point . out to the critics of the clause that it is, as they are no doubt aware, optional ; that is to say, it is a new power, a special power, a novel power, and an important power, conferred upon the Court. But the power is to be exercised by the Court only in its judgment. In the Bill no clue whatever is furnished to the Court as to the grounds on which it is to exercise or refuse to exercise the power. The only indication to be found is in the one general provision that the Court is to decide according to equity, good conscience and the substantial merits of the case. It will take a good deal of consideration and some argument to find in that very general authorization any particular grounds on which the Court may feel called on to exercise this power. The Court has authority to give preference, and it will only give it when it feels called on to do so by considerations of equity, good conscience, and the substantial merits of the case.

Mr Ewing:

– Can there be any doubt that, other things being equal, preference will be given to the unionist over the nonunionist ?

Mr DEAKIN:

– There is no doubt that the Court, having considered an industrial dispute, has power in its award to include a direction to employers to give a preference to members of organizations, other things being equal, and to exhaust the eligible available members “of those organizations before looking outside.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– That is being done now.

Mr DEAKIN:

– That is being done in New South Wales, and I am about to quote one of the cases brought before the Arbitration Court of that State, as indicating the manner in which the choice has been exercised there. In the case of the Professional Musicians against Williamson, heard in the New South Wales Arbitration Court in September, 1902, and reported in vol. 2, part .1, page 17, of the Industrial Arbitration Reports, I find that the head note sums up the Judge’s judgment as follows : -

That the Court will, as far as possible, avoid making compulsory orders for preference, and allow the parties to follow their own bent, unless some real necessity for making the order can be shown.

It appears, therefore, that this power of the Court has been exercised in New South Wales only when the real necessities of the case, and its substantial merits, seemed to call’ for its exercise.

Sir John Forrest:

– The power is not conferred in New South Wales in special terms, is it ?

Mr Watson:

– The provision in the Bill is the same as that in the New South Wales Act

Mr DEAKIN:

– I think that this Bill is more specific.

Mr Watson:

– I do not think so.

Mr Kelly:

– Very many preferences have been granted, I think.

Mr DEAKIN:

– Quite a number. But each has been dealt with as in the opinion of the Court the case demanded.

Mr Glynn:

– That was only in cases where the dispute was in regard to preferential employment. In such case the jurisdiction exists, or, otherwise, the dispute could not be settled. But why allow the question to be imported into every dispute of which that is not the subject ?

Mr DEAKIN:

– I should not like to answer off-hand a question of the kind.

Mr Glynn:

– I may say at once that I intend to submit an amendment limiting the power.

Mr DEAKIN:

– I have here more than a dozen cases in which preference has been granted in New Zealand and in New South Wales. Quite a number of them, I know, included other matters besides that of preference, and some included preference only by way of addition after the case had come into Court.

Mr Glynn:

– The dispute in the bootmakers’ case was as to preferential employment, and the extreme step was taken of dismissing a man because he would not join a union.

Mr Watson:

– The provision is practically a repetition of the section in the New South Wales Act

Mr DEAKIN:

– Of course, if the dispute is as to preferential employment, it may well be said that it is impossible to decide the case without dealing with that question. But, irrespective of that, in New Zealand and elsewhere preferences have been granted by the Courts after having examined the circumstances and satisfied themselves that the exercise of the power was necessary before there could be a settlement of a dispute.

Mr Crouch:

– Can the honorable and learned member point to a case where a man can justly be forced into the union ?

Mr DEAKIN:

– We have nothing to do with unions. No man can be forced into a union under this Bill’. A man will only join an organization if he feels that it is in his interest to do so. The paragraph will make it easy for any man competent in his own trade to become a member.

Mr Kelly:

– A man might not understand the difference between an organization and a trades union.

Mr DEAKIN:

– I am not called on to deal with that confusion.

Mr Ewing:

– If the word “shall,” in line 24, were altered to “ may,” what effect would that have on the clause?

Mr DEAKIN:

– It would make the clause meaningless. In line 15 there are the words, “The Court by its award may,” and then we come to paragraph b; “ direct that, as between members of organizations of employers or employes and other persons…… preference shall be given.” If the Court “ may “ exercise its choice, and all it may say is that preference may be given, that would give the employer a power which he has now, and which he may or may not choose to exercise. My object in rising was to point out that probably by an amendment in clause 67 we can meet some of the objections which have been raised to this proposal. For the rest, it requires to be remembered that this is simply a power of the Court, which will be exercised when equity and good conscience demand.

Mr Webster:

– As in all other cases.

Mr DEAKIN:

– As in all other cases, Under what conditions the power may be exercised is left to the judgment of the Court. There is no attempt in this clause, or in any other part of the measure,’ to limit the freedom of the Court.

Mr WILKS:
Dalley

– The Committee will be pleased to hear that the honorable and, learned member for Ballarat agrees with paragraph b, protected by the ‘suggested amendment in clause 67. That suggested amendment is to prevent the danger of collusion of organizations or trades unions to prevent the objects of this measure being attained. We have heard a good deal to-night as to this being a new infringement of the rights of the people ; but all who voted in favour of the earlier clauses of the Bill proposed from the very start to infringe the rights of employers and employed.

Mr Mauger:

– Where is the Bill that does not infringe a right?

Mr WILKS:

– I am now replying to the honorable member for Gippsland, who said that this provision was an infringement of the rights of the people. The honorable member either believes in the Bill or opposes it ; but he and all others who voted for the introductory clauses, supported it as a measure for the prevention of locks-out and industrial disputes. When they voted for these earlier clauses they took away from the employer the right to lock out his men, and from the men the right to strike. That was an infringement of rights ; and that is my answer to the honorable member for Gippsland, who, after speaking rather kindly of trades unions, damned them very severely. The honorable member deprecated forcing men to join any organization, and on that declaration he may be taken to be opposed to the Bill, although at the earlier stages he led us to believe by his kindly references to trades unions, that he was in favour of the measure. The honorable member said that he always induced people to join trades unions, to which, in his opinion, labour owed a great deal ; so that, in any case, the clause only “ forces “ men into organizations from which, according to the honorable member, they have received much benefit. My experience of trades unions in New South Wales leads me to- the conclusion that they were never particularly favorable to legislation of this kind ; at any rate, that is so in the case of the more powerful trades unions. To hear some honorable members talk one would think that this was legislation presented by trades unions for the acceptance of Parliament. I have been associated with members of trades unions from childhood to manhood, and I say openly before the Committee and the country, that if I were a mechanic I should join a union, as my children will do if they follow industrial pursuits. Fears are expressed about free labourers being forced into trades unions ; but I may tell honorable members that trades unions have suffered more under legislation of this kind than perhaps many people are aware. The Amalgamated Society of Engineers, which is the most powerful in the world, opposes arbitration in Great Britain and opposed it in New South Wales. It is not to the interests of such a union to have legislation of this kind, but in New South Wales the engineers, in the interests of the citizens of the Commonwealth, agreed to support a measure which had for its object the prevention of the evils of strikes. I know personally that there was the greatest struggle to get some of the powerful unions to take advantage of the Act in New South Wales. The Shipwrights’ Union, which is not numerically the strongest in Australia, but is financially the most powerful, having the largest provident fund of any union, was absolutely opposed to compulsory conciliation and arbitration ; and it was only on the representation of the smaller unions that the members consented to come within the operation of the measure. Members of those’ powerful unions say, openly, that their great surrender was that of the power to strike, and to refuse to work with non-unionists ; but that surrender made for industrial peace in the community. Honorable members who vote for no preference to unions, will, knowingly or unknowingly, give a death-blow to trades unionism in Australia ; and it is just as well that that should be said plainly. If the Government allow this provision to be struck out, they will strike the most deadly blow that trades unionism has received in Australia ; and I see no necessity to disguise the position. The Minister of External Affairs, in his present responsible position, was not prepared to speak so clearly as I have, but he hinted at the possible result. The time is past for hints. If this provision be struck out, no union of any power will desire to come within the operation of the Bill. Powerful unions surrender a lot in the common interests of the public ; and if they are to receive nothing in return, the result will be as I have stated. The honorable and learned member for Ballarat says that this Bill does not mean trades unionism ; but the very objects of the Bill, as set out in subclause 6 of clause 2 - for which honorable members who oppose this provision voted - is to “ facilitate and encourage the organization of representative bodies of employers and employes,” and “ the submission of industrial disputes to the Court by organizations,” and to permit representative bodies of employers and employes to be declared “ organizations for the purposes of this Act.” The very meaning of the Bill is that there shall be organizations of masters and of men. We are now told, at this late stage, that to give preference’ to unions is wrong, harmful, oppressive, and tyrannical. Those are a few of the choice epithets which have been applied to this provision. If they intend to allow the free labourers to come in and receive the same treatment as the unionists, the Bill will be a mockery, because no man can conceive of an individual employe, or of a disintegrated number of employes, having a strike. In the past strikes have only been possible in those cases where there has been an organization. They have tried to obtain by force that which this measure proposes to enable organizations to obtain by peace. Honorable members practically say that the Bill proposes to keep out the free labourer; that he will not be able to obtain the benefits of the legislation unless he joins a union. I am glad that the Prime Minister has intimated that clause 67 will provide that a union shall not be a close corporation.

Mr Hutchison:

– It is always the best men who are in the unions.

Mr WILKS:

– I shall deal with that question directly. Suppose that the Wharf Labourers’ Union of New’ South Wales - another powerful organization, which in the early stages disliked the idea of an Arbitration Act - did close its doors, and resorted to the practice which was adopted in 1892. There are hundreds, perhaps thousands, of wharf labourers in and around my electorate who would acknowledge that that would be absolutely wrong. In that year they foolishly put up the price of admission to £5, and limited their number. That would be manifestly unfair and unjust, and I can quite understand honorable members opposing such a thing, as I would. But the Prime Minister has intimated that he will provide in clause 67 for the doors of every union to be left wide open to labour. The only real necessity is that free labourers shall enter an organization, and that, for the benefits which it obtains for them, they shall give a helping hand in return. In reply to the recent interjection by the honorable member for Hindmarsh, I may say that for many years I have had a close acquaintance with trades unions, without belonging to them. As regards the Engineers’, Shipwrights’, Seamen’s, and Wharf Labourers’ Unions, I know the members of their executives pretty well. The majority of these men are not to be carried away by a sentiment. Most of those whom I know come from the hardy Scotch race, and in the conduct of their affairs they are just as careful of their freedom as we are of ours. It cannot be disputed that the benefits conferred by trades unions far transcend any abuses which can be cited by some persons. The conditions of employes - their rales of wages and hours of labour - have been raised to their present standard by the very efforts of trades unions, .and the free labourers who have been spoken of so kindly here to-night -are those who have benefited for years by the very efforts of organized labour. We are now told that the Bill proposes to shut out the free labourer and give a preference to the members of organizations. If trades unionists are prepared to surrender their interests and all the powers they possess to the control of a Court, in the common interest of the public, it is no great privilege to them to receive a preference as against .a free labourer. I cannot understand any believer in trades unionism opposing the proposal. A number of men do not belong to trades unions, not because they dislike . such organizations, but because they dislike to pay the entrance and subscription fees. I know hundreds of men who have enjoyed the benefits of trades unionism, who would refuse to subscribe to the funds of an organization which obtained from the Arbitration Court an award under which they must benefit. To destroy the principle of trades unionism would be to put back the clock 250 years. Even in England powerful trades unions, which were originally opposed to the idea of arbitration, every year are coming closer and closer to the principle. They are powerful in both numbers and funds, but they recognise that there are smaller organizations of labour, such as the Tailoresses’ Union, which have not the same means to protect themselves. They are willing to make a sacrifice in the interests of the weaker unions^ Is it fair to say that paragraph b is an infringement of the freedom of the . people, when it simply says that, other things being equal, a preference shall be given to the members of the organizations who have brought the matter before the Court? Surely the Committee does not desire that free labourers shall be placed on an equal basis with members of organizations ? The honorable and learned member for Ballarat prefers to describe these men as members of organizations ; but I do not like that euphonious term. An organization is a trades union. If any men organize for the purpose of trade, they form a trades union. They may not be called “trades unionists” under the Act, but to call them an organization does not make any difference to me. I cannot understand how honorable members, who have already voted in certain directions, can refuse ito support the Government on this clause.

Mr. KELLY (Wentworth). - It seems to me that the honorable member for Dalley rather confused the object of the Bill when he said that it was drawn up to encourage, trades unionism, instead of the procuring of industrial peace throughout the Common- wealth when a dispute extended beyond the boundary of any one State. I think that the honorable and learned member for Ballarat put his case very clearly when he differentiated between an organization constituted under the provisions of the Bill and a union, trade or otherwise, constituted in the old way.. There has been a good deal said about the natural right of trades unions to reap the principal benefits of this measure, since they will contribute a great deal to its administration. I do not know that- the arguments advanced in that regard have been particularly strong. We have been told that members of trades unions have surrendered the power to strike in order to come within the provisions of the Bill ; but we have not been told on what hope that surrender is based. . Every one knows that the chief inducement which was given to the trades unionists was that bycoming within the provisions of the Bill rates of wages would be increased, hours of employment decreased, and conditions generally alleviated in a way that no power to strike could ever obtain. When we see how the surrender of the power to strike has been brought about, I think we cannot but feel that the trades unions have rather mistakenly made that surrender ; and it is quite possible that they may yet cry out for a reversion to the old order of things. We are also told that the employers have surrendered the power to lock out. I think it will be generally admitted that no such surrender has taken place. If one looks around the Commonwealth to-day he will hardly find one employer in ten who has surrendered that power. They are all crying out against its confiscation.

Mr Hutchison:

– What about the public ?

Mr KELLY:

– I shall get down presently to the view of the public, who only want industrial peace. The power of the employer to lock out has not been surrendered, but has been taken away. If it can be taken away without infringing the liberty of people, I do not object. I am not objecting from the point of view of the employer so much as contending that the trades unionist has surrendered the power to strike under a complete misapprehension. Honorable members, who outside are inclined to uphold this principle as one which will better all the conditions of labour in a wonderful way, in this chamber simply refer to it as a means for the settlement of disputes, and for gaining what is euphemistically termed a “ fair thing.” I would heartily support the grant of a preference to the members of organizations, if they were so constituted to facilitate the easy working of the measure. I do not think that the organizations in New South Wales have been drawn up for that purpose. In that State the old unions have been the first to apply to the Court for registration. The old unions have not, until compelled in one or two isolated instances, surrendered their power to make rules and provisions relating to matters quite outside the Act. These organizations have had ex clusive rules in a number of cases, one of which was settled only yesterday. If the Court could grant a constitution to a union, and an organization were formed on that plan, I would strongly support a proposal to grant a preference to the members of that body, because I am convinced that the bringing in of all men into these organizations would facilitate, in such circumstances, the working of the Act. But I hold that these unions have rules which may be and are obnoxious in a number of instances to men who do not wish to join their ranks. If we enact this preference we shall compel those men, at the peril of their livelihood, to join the organizations. It is all very well to urge that these men may go to the Court and say that they cannot conveniently belong to a union. But do honorable members believe that the average working man understands the. technicalities of an Act of Parliament? Do they believe that the average working man will know sufficient about the arbitration principle to realize that he can go to the Court and ask for an injunction against a union having certain rules? Can he, in the first place, afford to take such an action? I hold that this preference practically compels every non-unionist to join a union, on peril of his livelihood if he does not do so. A union, moreover, is, under this Bill, not necessarily an organization, having a uniform constitution. It may be an established trade union, whose rules may be obnoxious to him.

Mr Webster:

– All rules have to be accepted by the Registrar.

Mr KELLY:

– In one case in New South Wales it was not discovered by the Registrar that such rules existed, although their existence was notorious to all persons connected with the union. The.section of the New South Wales Act on which the members of the Machine Shearers’ Union relied to protect their registration was that which requires men to belong to a union, if such union is one to which they can conveniently belong, or words to that effect ; but the union in question had to be formed, and a case contested in the Court, before the fact could be established. That instance strengthens my contention that an individual employ^ who is not a member of a union will have little opportunity to ventilate his grievances, and will have to take the consequences of joining a union whose rules may be obnoxious to him on principle.

Mr Hutchison:

– A man could not ventilate his grievances if he did not belong to a union.

Mr KELLY:

– The Australian Workers’ Union, which has done most to ventilate its grievances had, in 1902, according to the New South Wales official’ records, nearly 21,000 members, while in 1904 its members number only about 11,500, so that, despite this ventilation of grievances, it has decreased in strength by nearly 50 per cent. Apparently the members of unions do not regard the power to ventilate grievances so very highly.

Sir Langdon Bonython:

– Is not the honorable member overlooking the amendment indicated by the honorable and learned member for Ballarat? Does not that in a measure meet his objection?

Mr KELLY:

– It does and it does not. It does not meet my objection in so far as it will be almost impossible for any single employ^ to move the Court,

Mr Watson:

– Any person can bring the matter under the notice of the Registrar.

Mr KELLY:

– It will require the existence of a set of agitators on the employers’ behalf, which is a state of affairs I should be the last to wish to bring about.

Mr Watson:

– One of the most modest description could do it, if any one who writes to the Registrar is to be termed an agitator. In a sense the honorable member is an agitator.

Mr KELLY:

– Before an employe can understand how to move the Court he must be a perfect bush lawyer. He must either know the measure through and through, or have some personal friend who will tell him how to act.

Mr Watson:

– All he need do is to write to the Registrar, who will look into the matter, and, if he be satisfied of the need, move the Court.

Mr KELLY:

– Might I suggest that provision should be made for a notification of the fact by means of newspaper advertisements.

Mr Watson:

– The public will be amply notified. The honorable member’s voice will carry a great distance.

Mr KELLY:

– Not so far, perhaps, as it should. This is a vital principle, affecting the liberties of a great number of men who do not belong to the unions. But there is another phase of the amendment which I propose to place before honorable members. Anything that tends to encourage genuine trade unionism, anything that has for its object the gaining of fair terms for employes and the prevention of sweating, is an excellent thing ; but there is another form of unionism of much later growth than genuine trade unionism, which makes for industrial warfare, not for industrial peace, although the latter is the key-note of the Bill. This new unionism I term militant unionism. One of the few militant unions in New South Wales has since the institution of the State Arbitration Court furnished the most flagrant act of defiance to the principles of arbitration by practically striking, and refusing to submit its case to the Court. This militant unionism supplies the chief political support of my honorable friends on the Ministerial benches. The provision in the Bill is also in the New South Wales Act.

Mr Crouch:

– Is the wording the same?

Mr KELLY:

– Practically the same. Section 36 of the New South Wales Act, to which I refer, reads as follows: -

The Court . . . may . . . direct that as between members of an industrial union of employes and other persons offering their labour at the same time, such members shall be employed in preference to such other persons, other things being equal, and appoint a tribunal to finally decide in what cases an employer to whom any such direction applies may employ a person who is not a member of any such union or branch.

For all practical purposes the provisions are the same. Has the section which I have read made for industrial peace? Has it made for the consideration of the claims of non-unionists ? Certainly not. I will read a few of the awards made by the New South Wales Court. The first to which I shall refer is that given on the 24th December, 1903, in the case of the Hotel, Club, Restaurant, and Caterers’ Employees Union against the Employers’ Association of the same kind. That award provides that the claimant union shall keep an employment book, in which shall be entered the names and addresses of its members, and the classes of work for which they are qualified, and upon notification the secretary shall use every endeavour to supply the employers with servants. Honorable members will see that the patronage incidental to the providing of work is thereby given to the union secretary, who thus acquires by Statute an influence which he should in no way possess. Another award of much the same nature was given on the 20th February, 1903, in a dispute in which the Tailoresses’ Union was concerned. It requires all employers who are in want of labour to apply in the first instance to the secretary of the Tailoresses’ Union, but should the secretary not provide an employe, the employer may go elsewhere.

Mr Crouch:

– How long has the employer to wait before going elsewhere?

Mr KELLY:

– A “ reasonable time, not exceeding, one week from the date of application.”

Mr Crouch:

– The work might be gone by that time.

Mr KELLY:

– No doubt, in a week tailoring work might be gone altogether. That, however, is a side issue. My point is that these awards give to the union officials, who are closely allied to our honorable friends opposite, patronage which they should not enjoy.

Mr Crouch:

– Will the honorable member tell us the classes of cases in which preference is given ?

Mr KELLY:

– In almost every award from the 19th September, 1902, to the 3rd June, 1904, preference such as I have referred to is given. I have the documents here, so that honorable members can refer to the cases for themselves, but I do not think it necessary to quote them individually. Some awards in preference cases are still more disturbing. I have before me one which provides that -

The claimant, union shall provide and keep at the Trades Hall, Sydney, an employment book, wherein shall be entered the names and exact addresses of all members of the said union.

Several awards have been made providing that the employes shall keep a book at the Trades Hall, Sydney. The Trades Hall is a political institution, and, as such, should be kept absolutely apart from a measure of this nature. I have made only a cursory examination of the list of awards, but have discovered one which practically compels every man in a certain industry to join the established union. This is the way it reads -

Any non-unionist operative baker hereafter entering the employment of any member of the industrial union of employers shall join the New South Wales Operative Bakers’ Association at or before the end of one week from the date of his so entering the employment. Whenever a non-unionist applies to an employer for employment as an operative baker, the employer shall inform him of this condition of the agreement.

I take it that that award is a distinct interference with the liberty of the subject; and yet it was made by a Judge whom we have often heard eulogized in this Chamber - a Judge whom I, too, have eulogized as one who tries his utmost to carry out the provisions of the New South Wales Arbitration Act. That Act contains a provision which agrees almost word for word with the paragraph now before us ; and, under it the New

South Wales Arbitration Court has forced men at the peril of their livelihood - unless they were prepared to change their trade, or to do something equally difficult - to join a union already in existence. We could not have a clearer instance of how far this clause might lead us; and when honorable members remember these facts they surely will not press their opposition to the amendment. I hope that when honorable members realize exactly how the preference section in the New South Wales Act has operated; when they remember that the first object of this Bill is industrial peace, while a subsidiary one is the encouragement of organizations - when they remember that a trades union is not necessarily an organization, and that the trades unions which have formed themselves into organizations in New South Wales have not conduced to industrial peace- they will join with those of us who think that trades unionism, as opposed to industrial organizations, should not be benefited by a preference of which it has not shown itself to be worthy, and recognise that it has been proved to be liable to abuse, even to the extent of the sacrifice of the individual and personal’ liberty of the great mass of the employes.

Mr LONSDALE:
New England

– The question that we have to discuss is whether by law unionists should enjoy a preference. A good deal has been said in favour of the Government proposal, on the ground that unions have to defend all labour. I should certainly not have so much objection to it if the organizations were to be. kept entirely free from all. political matters. There can be no doubt, however, that these organizations are used for political purposes, and when we are passing a Bill that will authorize a Court to fix awards which will govern the men engaged in the great bulk of the industries of Australia, we should take care to provide that these organizations shall be free from any political taint. I recognise that the intention is that they shall. not have any political influence, but the awards given under the New South Wales Act have developed their political proclivities, and, to a large extent, placed them under the control of men who are fighting political battles. When the Australian Workers’ Union applied for registration its application was opposed by the Machine Shearers’ Union, and was refused on the ground that some of its rules were of a political character. It was proposed under the rules to punish a man who dared to vote against any man selected by the union.

Mr Watson:

– Those were ridiculous rules.

Mr LONSDALE:

– That may be, but they give us some evidence of the spirit which actuates many of these men._ If it were made clear that these organizations would not be used for political purposes I should not have so much objection to the clause.

Mr Webster:

– A guarantee of that is afforded by the decision of the New South Wales Court in the case to which the honorable . member has just referred.

Mr LONSDALE:

– I am afraid that although the Registrar of New South Wales refused to register the union, his action has tended to assist the efforts of those who desire to use these organizations for political purposes. Unions are now too wise -to attempt to frame such rules, but they use their machinery for political purposes.

Mr Watson:

– Why should they not do so?

Mr LONSDALE:

– They should not be allowed to do so if they receive a preference. If unionists desire to have political labour leagues they should form them quite apart from the unions which men will have to join in order to secure employment. The man who thinks that it is Tight thai unions should be used for political purposes is not a fair-minded individual.

Mr Watson:

– They cannot be used in that way. No member of a union can be forced to vote as the executive desires.

Mr LONSDALE:

– If men knew that these organizations would be free from political . influences they would not object so strongly to join them.

Mr Watson:

– How could they, be .compelled to vote in any particular direction ?

Mr LONSDALE:

– An attempt is being made to compel persons to join the unions, and we should take care, if we agree to the Government proposal, to compel the organizations to refrain from using their machinery for political purposes.

Mr Watson:

– But could the members of a union be compelled to vote in a certain direction ?

Mr LONSDALE:

– They could vote as they liked outside.

Sir Watson:

– Then what is the. use of making this complaint?

Mr LONSDALE:

– I have always given the Prime Minister credit for possessing some wisdom, but if he denies that unions are used for political purposes I shall not do so. ‘

Mr Watson:

– I know that men. cannot ‘ be used against their wish for any’ political purpose.

Mr LONSDALE:

– We are all aware of the pressure which is brought to bear on unionists, and that the intention is that these organizations shall be political unions. In the course of a discussion with the Acting Leader of the Opposition, the honorable member for North Sydney, the suggestion was made that if we provided that every man employed in an industry should become a member of a union, and that the employer should collect his subscriptions and hand them to the registrar, who would thus have sole control of the unions, there would be no objection to the proposal.

Mr Watson:

– Who made that brilliant suggestion ?

Mr LONSDALE:

– I am not putting it forward as a brilliant suggestion, but as a proposal that was made in the course of a private conversation. We should surround these organizations with every safeguard! against the intrusion of political matters. The Minister of External Affairs said that under the Bill the unionist gave up his right to go on strike, and to refuse to work with non-unionists. That is a remarkable statement to make, in view of the fact that if this Bill were passed it would be unnecessary for a unionist to refuse to work with non-unionists, because no nonunionist would be able to work with a unionist ; a non-unionist would not be able to secure work until every unionist had been found employment. The very fact that under a New South Wales award an employer has to go to the Trades Hall to examine the list of unionists in order to find some one whom -he may employ suggests the exercise of political influence. It has been said that where two men are equally competent, and other things being equal, a union, ist should be given the preference. The Judge will have to determine a man’s competency. The Judge himself in one of his awards’ stated that the Court has to decide whether a man is competent or not. How absurd it is that the Judge should have to state in Court - knowing- nothing about the men brought before him - whether a man is competent ! - Because a man happens to be a non-unionist, he would find himself probably put on one side by the Judge.

Mr Page:

– Why not call him by his proper name - a “ scab “ ?

Mr LONSDALE:

– A man is made no worse on account of the name that is given him. There are good unionists and bad unionists, and there are good non-unionists and bad non-unionists. Do not let us call men names. I am’ a non-unionist. The honorable member may call me a “ scab “ if he likes, but T have always been a nonunionist, and do not suppose that I shall ever be otherwise. Progress reported.

page 2520

PAPERS

Ministers laid upon the table the following papers : -

Transfers of amounts approved by the GovernorGeneral in Council under the Audit Act, financial year, 1903-4, dated 18th June.

Regulations under the Customs Act to take effect from 1st July, 1904.

House adjourned at 10.34 p.m.

Cite as: Australia, House of Representatives, Debates, 21 June 1904, viewed 6 July 2017, <http://historichansard.net/hofreps/1904/19040621_reps_2_20/>.