4th Parliament · 2nd Session
Mr. Speaker took the chair at 10.30 a.m., and read prayers.
– Is the Minister of Trade and Customs aware that some of the paper mills in the various States are closed for want of protective- duties ? Will he inquire how many paper mills there are in Australia, and how many have been closed within’ the last five years? What steps does he propose to take to protect paper-making, which has been spoken of as one of the languishing industries ?
– I think that there are three paper mills in Victoria ; I do not knowhow many there are in the other States, and’ I am not aware that any of them have been closed. The manufacturers of paper- have the same opportunity to make requests to the Customs Department as other manufacturers. -
– Will the honorable gentleman make inquiries?
– Have representations been made to the Minister recently in connexion with the protection of bananagrowing in Queensland and New South Wales? Does he intend to take steps to further protect that industry?
– Within the past two or three days I have received a petition from banana-growers in Queensland and New. South Wales. The intention of the Government in regard to any item on the Tariff will not be disclosed until the schedule of amendments has been laid on the table.
– Has the Minister read a paragraph appearing in one of this morning’s newspapers, and headed “ Protection in New Zealand. - A Higher Tariff. - Industries Standing Still.” If so, I wish tq know if Australian manufacturers interested in such industries as are men’tioned in the article have made requests to him for higher duties, and if the Government has considered what should be done to rectify our Tariff anomalies? When is the matter to be dealt with?
– I have seen the paragraph referred to, but cannot say off-hand whether the manufacturers of whom the honorable member speaks have sent in requests to the Department) though a number of requests have been received. If only one manufacturer in any industry made a request, I should not divulge the fact, because we have promised’ to hold such communications confidential.
– What has become of the list of 145 items requiring amendment for the preservation of languishing industries, about which the honorable member for Hume talked so strongly in the last Parliament?
– The list contained 180 items.
– Are the industries still languishing? What is the Minister doing in the matter? The honorable member for Hume seems to have left it alone.
– I have been away.
– I do not know what has become of the list referred to, but I judge from the press that the present trouble of manufacturers is to obtain employes.
Order of the day discharged.
Debate resumed from 19th October (vide page 1663), on motion by Mr. Hughes - .
That this Bill be now read a second lime.
Upon which Mr. Deakin had moved -
That all the words after the word “That” be left out, with a view to insert in lieu thereof the following words : - “ no measure trie effect of which will be to concentrate in any one person the control of all the conditions of carrying on all the industries of this continent can be other than impracticable and fraught with danger - to the whole community.”
– In approaching the subject of arbitration and conciliation, both sides of the House must realize that we are dealing with a problem which presses for solution in other countries besides our own, but it must be admitted that in Australia a general desire has been shown to obtain, both by Commonwealth and by State legislation, a peaceful method of settling industrial and economic disputes. It was not to be expected that one piece, of legislation would do all that was desired in that direction. Such legislation must be experimental in its nature, and as defects appear, or hardships arise, the law must be amended to deal with them. The- recognition of mistakes, and the readiness to deal with them, should be put to our credit. The Bill purports to be an attempt to improve the legislation of the last ten years, but the Attorney-General in introducing it did not give us any reason for the amendments proposed, except in regard to one particular matter. The Leader of the Opposition having moved an amendment on the motion for the second reading, the Prime Minister rose to reply, but he did not grapple with the real questions involved, and with a few remarks brushed the subject aside, saying nothing about the manner’ in which the Government intended to face the difficulties of the situation. The Leader of the Opposition has challenged, on three distinct points, the expediency of passing the Bill. He objects, first, that its effect would be to concentrate all power over all industries throughout the Commonwealth in the hands of one person; secondly, that such legislation must be impracticable; and, thirdly, that it is fraught with danger to the community. Dealing with the first point, let me draw attention to a provision which I think the Attorney-General will be well advised to excise from the Bill. We are asked to enact that no order of the Court shall be challenged, appealed against, reviewed, quashed, or called in question, or be subject to prohibition, or mandamus in any other Court on any account whatever. Under the principal Act, industrial disputes are to be decided by a Judge, who is not bound by strict technicalities such as the rules regarding the admissibility of evidence. He is free and untrammelled to do justice according to equity and good conscience, without regard to technicalities and legal forms. But if questions of law arise, the President may, if he thinks fit, state a case for appeal. The Prime Minister said that there was an appeal; and, of course, there is. But what sort of appeal? Is there any appeal which enables the whole weight of evidence to be reviewed? The aim and intention of the section is that the President’s judgment shall prevail, and that there can be appeal only on questions of law. Notwithstanding the present section, there has been some control1 of the Court, and it is only right there should be. Otherwise, the Court could, at its own sweet will, wander all over Australia without being subject to review. At the present time, if the Court exceeds its jurisdiction, the High Court can be appealed to - for what is known as a. writ of prohibition^ so that the President is not allowed to- decide matters not specially referred to him by the authority of the Statute. Are the words “ prohibition or mandamus “ which are now proposed to be inserted to be put in for purely ornamental purposes, or do they express some intention? “I give the AttorneyGeneral credit when he asks us seriously to amend a fundamental part of our statute,that he has some reason; and we have to ask what that reason is. To this question the honorable member for Flinders failed to obtain a satisfactory answer. The only object, obviously, is to make this Court absolutely free and uncontrolled - to determine, if it pleases, the bounds of its own statutory jurisdiction. The one Justice is to be the sole authority in the matter. If that is the intention, it cannot be carried out according to the Constitution; and, if the clause be inserted, the Government are only inviting defeat, however right and just it might be to make the provision. Is it right or just, and according to British precedent that this absolute and complete authority should be given, not subject to any control ? Such a proposition is unusual in British law.
– We are making an experiment.
– And a very dangerous experiment. I can imagine how the honorable member would protest if he were haled before a tribunal which he deemed to have no jurisdiction, and how he would ask whether it was British fair play to provide no supreme court of appeal.
– Does the honorable member say that there is an appeal from the New South Wales Court ?
– I say that there is in the present Commonwealth Statute appeal on questions of jurisdiction, and that there should be left in the High Court power, by prohibition, to keep the Conciliation and Arbitration Court within its bounds. In Clancy’s case, in New South Wales, it was held by the Supreme Court, and confirmed by the High Court, that, notwithstanding a clause similar to this in the existing Commonwealth Statute, a writ of prohibition lay.
– I think the honorable member is in error.
– I am speaking of Clancy’s case, reported in the Commonwealth Law Reports of 1904.
– The law has been amended since then.
– I am not saying that the State law has not been amended, but I am now dealing with the principle.
– We must take the law as it is.
– First, we have to consider what ought to be done, then what is proposed, and then whether we have power under the Constitution to carry out the proposal. I submit that, under the Constitution, there is inherent power in the High Court, under its original jurisdiction, to issue a prohibition to a judicial officer.
– We are not dealing with the question of constitutional jurisdiction.
– That is what the AttorneyGeneral is doing.
– We do not try to do it; we are trying to do what it was proposed to do in the 1904 Act.
– In Clancy’s case it was held and confirmed by the High Court, that, under the then Statute of New South Wales, the State Supreme Court had power of control, and that the only way the State Parliament could get rid of that control was by expressly excluding the jurisdiction. The State Parliament has that power, because it is completely sovereign within its own boundaries; but the Parliament of the Commonwealth is bound by the Constitution. In the case of the Commonwealth there is inherent in the High Court original jurisdiction to issue a writ of prohibition; and what power have we, from a legislative point of view, to take that away from the High Court? As to the merits of the case, is it right and just, when dealing with a continent like this, to leave it to one person to decide even the jurisdiction which he is to exercise? In the report of Clancy’s case, 1 C.L.R., page 197, the Judge said -
To hold, in the face of these provisions, that section 32 prevents the Supreme Court from checking any excess of jurisdiction, would be, in effect, to give the inferior Court unlimited jurisdiction. ‘ For these reasons, I have no doubt that the Supreme Court had jurisdiction to grant a prohibition.
To take away that power of control from the High Court would be wrong, even if we had the power to do it. Are we now going to say that, notwithstanding we have passed an Act, and appointed a Judge to administer the law, we shall take away from the High Court the power to keep that Judge within his jurisdiction under the Statute?
– Is it a serious matter in any case?
– It is a serious matter; and it cuts both ways. It may suit the employe to-day and the employer tomorrow. We are not looking for temporary advantage for one party or the other, but for what is fair and just, in order to incorporate it as a permanent part of the legal procedure of this country in respect to economic justice. I am pleading for a sound principle, and urging that, as a matter of law, the High Court should always have the power to keep the Conciliation and Arbitration Court within the confines of the jurisdiction conferred upon, it by this Parliament. In the Broken Hill case the Judge exceeded his jurisdiction, and the following is an extract from the (judgment of the Chief Justice of the High Court dealing with one of the objections made, 8 C.L.R., page 480-.
Later on, the President said-“ I cannot go beyond the dispute as it originally was, but in settling the dispute I have power to do anything in pursuance of the Act that may settle the dispute.” I cannot assent to that assertion of power in those terms.
Then, repeating what he had said in Clancy’s case, the Chief Justice went on -
*’ The object of the Act, therefore, is to establish a new tribunal, called a Court of Arbitration, for the hearing and determination of industrial disputes in matters referred to it. It is not to constitute a board of trade, or a municipal body with power to make by-laws to regulate trade, but a Court of Arbitration, for hearing and determining industrial disputes in matters referred to it. Nor is the Court a subordinate legislature. For the reasons I have given, this part of the order was in excess of jurisdiction.
– That is a great pearl of wisdom !
– Be that as it may, the High Court, because the Judge had exceeded the jurisdiction of the Court, issued a writ of prohibition in order to keep the Court within the terms laid down by Parliament. Is that not right and just, as a matter of principle? Otherwise, the Judge of the Conciliation and Arbitration Court could have practically unlimited jurisdiction. So far as Australia is concerned, we do not desire* any one individual to be the legislator for the whole Commonwealth.
– The honorable member would have the High Court as the lawmaker !
– I am not urging that.
– Are there not certain dicta of the Courts that are practically legislative ?
– On questions of interpretation the High Court, consisting of five persons, becomes the ultimate interpreter of the Constitution.
– But is not what the Courts have decided from time to time recognised as equal to legislation? I am not in favour of that; but is it not a fact?
– Only the highest Court of the realm is the ultimate interpreter, and makes the final declaration as to what the law is; and the law must be settled.
– The Courts sometimes do things outside legislative authority.
– No; they interpret and declare the laws as they exist, and no Judge would ever admit otherwise.
– In common law the Judges interpret the customs of society.
– And have done so from time immemorial ; and it is now said that they must not do so any more.
– That is not so, but I submit that by abolishing the writ of prohibition we are taking from the High Court the power to control and keep within defined bounds the President of the Conciliation and Arbitration Court. I am not speaking from a personal point of view. A judgment delivered to-day might, in their opinion, suit the employers; a judgment delivered to-morrow might suit the employes, and both sides are equally entitled to have preserved the right which enables them to confine the actions of Courts with inferior jurisdiction to the limits that are placed upon them. The provision in this Bill to remove the power to grant a prohibition is, as the amendment moved by the Leader of the Opposition points out, an attempt to leave the entire control of the industrial affairs of Australia., in the hands of one person. Such a proposal is impracticable, and must be fraught with danger. This Parliament is not the only body under the Constitution interested in this matter. The High Court has’ to preserve the balance as between the Commonwealth and the States. The Commonwealth and the States, under the terms of the Constitution, are equally interested. The Constitution declares that the High Court shall have jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. That is its original jurisdiction under section 75 of the Constitution. What power have we in this Parliament to alter the terms of the Constitution so as to take away the original jurisdiction of the High Court in respect of judicial officers? It has been decided by the High Court that the President of the Conciliation and Arbitration Court is a! judicial officer, and that under the original jurisdiction conferred upon it by section 75 of the Constitution, the High Court has power to keep and control any judicial officer of the Commonwealth within the confines of his own jurisdiction. I would refer honorable members to the case of Rex v. the Commonwealth ex -parte Whybrow, 2, C.L.R., in which the Chief Justice made the position perfectly clear. He said -
Section 75 of the Constitution confers original jurisdiction upon the High Court in all matters in which a writ, or mandamus, or prohibition, or an injunction is sought against an officer of the Commonwealth.
Later on he said -
It cannot be denied that the Judge of the Arbitration Court is an officer of the Commonwealth, or that his functions are judicial._ In my opinion, therefore, this Court has original jurisdiction, under the Constitution itself, to grant a prohibition against him. If the meaning of the words of section 75 were even ambiguous the necessity of such a controlling power existing somewhere is so apparent that I should think that the ambiguity should be resolved in favour of the power.
There are three ways in which a writ of prohibition may be authorized. In the first place, this Parliament may regulate the appellate jurisdiction of the High Court. Section 73 of the Constitution, which gives the High Court power, subject to such regulations as the Parliament may prescribe, to hear and determine appeals. Then, again, under section 76 the Parliament is given power to confer on the High Court original jurisdiction in any matter arising under laws made by the Parliament or arising under the Constitution, or involving its interpretation. Those are matters in respect of which the power to issue a writ of prohibition may be affected legislatively. But there is also a third power to issue a writ of prohibition against a judicial officer, and that is under the original jurisdiction vested in the High Court, not by Parliament but by the Constitution itself under section 75. What power have we under the Constitution to take that away ? Mr. Justice O’Connor, in the same case, in the course of his judgment said -
The Constitution itself creates the High Court, and, by section 73, expressly invests it with certain appellate jurisdiction. But all the judicial powers of the Commonwealth is not disposed of by that section. The judicial power which section 71 declares should be vested in the High Court is the supreme judicial power of the Commonwealth, and it must necessarily include the power to keep inferior Courts of the federal judicial system from exceeding their jurisdiction. That power is in its nature original, not appellate ; but it may be conferred in either form, and it has, in my opinion, been conferred as original jurisdiction in sub-section (v) of section 75.
He went on to say -
Sections 71 and 75, inclusive, were clearly intended to equip the High Court completely with all those fundamental powers necessary for the discharge of its duty under the Constitution - a duty in the effective discharge of which the States and the Commonwealth are equally concerned.
Mr. Justice Barton made a similar statement ; that there is vested in the High Court, by part of its original jurisdiction, power to issue writs of pro*hibition and mandamus to judicial .officers:
– So far as the Constitution is concerned? i
– Yes. If we create a Federal Court, as we have done in this case by virtue of the Constitution, there is power in the High Court to keep the judicial officer of that Court within the confines of his own jurisdiction.
– But so long as we keep within the Constitution we have supreme power.
– Undoubtedly, but under this Bill it is proposed to go outside the Constitution. Parliament is asked to say in effect that although the Constitution declares that it is part of the original jurisdiction of the High Court to issue a writ of prohibition to these judicial officers, we are not going to allow the High Court to do so in this case.
– Our desire is that the Arbitration Court shall be supreme in industrial matters.
– So it is, but the Government are proposing to go beyond that. If the clause in the Bill, to which I refer were confined merely to industrial matters I should raise no objection to it.
– That is the intention.
– But that will not be tha effect of the clause. The intention of the clause is that the Judge of the Conciliation and Arbitration Court shall have power tt. decide all matters relating to his own jurisdiction, and that where it is contended that he has exceeded his jurisdiction - that he has dealt for instance with a dispute of purely State concern - an appeal shall not lie to the High Court to keep him within the confines of his jurisdiction by means of a Court of prohibition.
– It appears to me that this Bill, if carried, will enable us to settle difficulties ; that it will give the Court a power that it has never had before, and that that is the whole trouble.
– That is net so. The Government are trying by this Bill to take from the High Court a power that is vested in it, and which the Chief Justice says is part and parcel of its original jurisdiction. What is the use of passing such a provision ?
– We appoint a Justice of the High Court as President of the Conciliation and Arbitration Court. *nd he must be familiar with the constitutional powers under which he is governed. It is for him to say-
– No. The scheme of the Constitution is not that the Federal Parliament shall be the interpreter of the Constitution, but ‘that the High Court itself shall interpret it. We cannot say that one Justice of the High Court shall be the interpreter of the Constitution.
– Only in regard to the industrial part.
– No. Our power to legislate in industrial matters is conferred by the Constitution, and only the High Court can say how far our powers in that respect go.
– And any clause to limit that would simply be unconstitutional.
– Exactly. It is for that reason I appeal to the AttorneyGeneral to seriously consider this matter, because I do not desire to see people sent unnecessarily before the High Court. My view appears to be sustained by the judgments to which I have referred, but it is for the Attorney-General to consider these points. If he, as the Chief Law Officer of the Crown, thinks there is nothing in them, he will act accordingly. The cases, however, are exceedingly strong, and the dicta are plain. It seems common sense to say that so far as the States are concerned the Commonwealth shall not have power to appoint one judicial officer with power to decide questions of his own jurisdiction.
– We could appoint a Judge with absolute, power to deal with matters of that kind outside of the High Court.
– No. If, for instance, we appointed an Inter-State Commission, we could only give it power to deal with industrial disputes extending beyond the limits of any one State. We could not empower it to be the sole interpreter of the Constitution. That is a power conferred upon the High Court. This proposal relates to part of the original jurisdiction of the High Court. As the Chief Justice said, the High Court can issue a writ of prohibition against a judicial officer to keep him within his jurisdiction. The power to issue a writ of prohibition, as Mr. Justice O’Connor pointed out, concerns, not only the Commonwealth, but the States. We are working under a Federal Constitution, “ and the High Court has to have regard to the powers; of the States as well as to the powers of the Commonwealth. Holding as it does the balance of power, it has to interpret the Constitution fairly between the Commonwealth and the States. Honorable members must realize the intention of this clause. In the Broken Hill case the President of the Conciliation and Arbitration Court, acting, as he thought, within his powers, exceeded his jurisdiction.
– By preventing Sunday labour.
– I desire to deal, not with details, but with the broad principlesinvolved. The President of the Court exceeded his jurisdiction, and the High Court held that it had power to keep him within his jurisdiction, as laid down by Parliament. From the stand-point of common sense and fairness, it must be conceded that there ought to be some power in the High Court to confine each Court to its own appropriate sphere of action. Without such a power we should have, as the Chief Justice said, a Court of practically unlimited jurisdiction. That would be the position under this clause. As the amendment moved by the Leader of the Opposition points out, the idea is to vest in one judicial officer the power to deal with all the industries of the Commonwealth.
– The appeal in the Broken Hill case was allowed because the President of the Court had decided an issue that was not one of the claims.
– He acted in a matter with which he had no jurisdiction to deal. The intention of this Bill is to give one individual Court, as far as possible, absolute freedom from- control.
– That is not uncommon in Great Britain.
– It is uncommon. What Court in Great Britain cannot be subject toa writ of prohibition?
– The decision of a Sheriff in many cases is final, and cannot be appealed against.
– The right honorable member is not dealing with the jurisdiction of a Judge to settle a series of economic questions.
– Yes ; the decision of the Sheriff on a question of whether or not I should be the mayor of a’ city would beabsolutely final.
– The right honorable member is thinking of elective matters, whereas 1 am dealing with the rights of the people in regard to claims coming for decision before a “Judge. That is an unparalleled power.
– How can it be unparalleled when it appears in the New South Wales Act?
– It is unparalleled, because here we are dealing with the industries of the whole continent covering industries that are subjected to all sorts of conditions. The Government are seeking to take away the limitation of the power of a judicial officer and to give, him complete and uncontrolled authority. That is the objection. We have to look at these matters in the light of the possibilities of the future as well as from, the point of view of some mere temporary inconvenience in one particular case.
– The honorable member first says that it ought not to be done, and then that it cannot be done, and then-
– I am simply pointing out that there are two aspects to be regarded. The first concerns the justice or merits of the action, and the second the constitutionality of taking it even if it is just. The intention of extending the powers of the Court in this way is obvious. Under section 21 the certificate of the Registrar is to be prima facie evidence, first that a dispute exists, and then that it is an industrial dispute extending beyond the limits of one State. But those are the very things that go to make up jurisdiction. Before a dispute can come within the jurisdiction of the Court to settle within the meaning of the Constitution it must be a dispute extending beyond the limits of one State.
– Does not the honorable member think that that is a very silly provision altogether?
– I do not. A mere certificate of the Registrar is to be prima facie evidence. The certificate itself may be accepted by the Court.
– It is to save the time of the Court.
– Certainly it is, but if these expeditious ways of getting the matter decided may be followed, without the proper methods of taking evidence, and if, at the same time, the power to review them is excluded, it may be a very serious matter.
– The Registrar will take evidence.
– There is no obligation on him to do so. He may act on a purely ex parte statement. Where these possibilities of error arise, and there is only one form of appeal, we should try to preserve that appeal in order to keep the Court within its jurisdiction. That bears out exactly the contention of the Leader of the Opposition, that the Bill is an attempt to concentrate everything in the hands practically of the one person.
– Would two persons help you?
– I am dealing with the one question of the Bill before the House. Another section which shews how far the Bill goes is 38B, which provides that, in making an award or order, the Court shall not be restricted to the specific relief claimed by the parties to the industrial dispute, or to the demands made by the parties in the course of the dispute, but may include in the award or order any matter or thing which the Court thinks necessary or expedient for the purpose of preventing or settling the dispute. What does this include? It is couched in the widest possible language.
– This is not the ordinary Court.
– Of course it is not, and that is why it is dangerous to extend it in this way without preserving the control over the jurisdiction. As a rule, persons go to a Court knowing the issues they have to meet. That is fair and just. This goes much further. The demands need not be part of the dispute or arise during the dispute, and the Judge is to have power to include in his award something which perhaps was never contemplated by the parties.
– - The whole provision is framed with a desire to get economic justice.
– I desire all necessary powers to be vested in the Court, so as to attain economic justice. The Government, I fear, are overburdening the tribunal. They are putting upon the President of the Court a burden greater than any man should be asked to bear. Let me read the plaintive note struck by the President of the Court himself in dealing with the Harvester Excise case -
The first difficulty that faces me is as to the meaning of the Act. The words are few, and at first sight plain of meaning; but, in applying the words, one finds that the Legislature has not indicated ‘ what it means by “ fair and reasonable “ - what is the model or criterion by which fairness and reasonableness are to be determined. It is to be regretted that the Legislature has not given a definition of the words. It is the function of the Legislature, not of the
Judiciary, to ‘ deal with social and economic problems; it is for the Judiciary to apply, and, when necessary, to interpret the enactments of the Legislature.- But here, this whole controversial problem, with its grave social and economic bearings, has been committed to a Judge, who is not, at least directly, responsible, and who ought not to be responsive to public opinion. Even if the delegation of duty should be successful in this case, it by no means follows that it will be so hereafter. I do not protest against the difficulty of the problem, but against the confusion of functions - against the failure to define, the shunting of Legislative responsibility. It would be almost as reasonable to tell a Court to do what is “right” .with regard to real estate, and yet lay down no laws or principles for its guidance.
In the course of the long discussion of this case, I have become convinced that the President of this Court is put in a false position. The strength of the Judiciary in the public confidence is largely owing to the fact that the Judge has not to devise great principles of action as between great classes, or to lay down what is fair and reasonable as between contending interests in the community; but has to carry out mandates of the Legislature, evolved out of the conflict of public opinion after debate in Parliament. I venture to think that it will not be found wise thus to bring the Judicial Department within the range of political fire.
– Still the Judge wants us to do it in order to adjust our economic conditions.
– In what he says the Judge is quite right. Under the Constitution the intention was that all these great industrial conflicts- which extend beyond the limits of one State should be left to the Commonwealth jurisdiction, with power for us to legislate to provide means for their prevention or settlement. That contemplated an industrial dispute or the possibility of it, with a Judge coming in judicially and determining the particular conflict between, the parties. But the full effect of this Bill will be to eliminate the judicial element from it. In the particular provision to which I am referring there is an attempt to give the Judge jurisdiction over something which is not in dispute. The Government in attempting to extend the power of the Court in every possible way, without rules for its guidance, are doing exactly what the Judge protested against. They are making the Court less and less judicial and making it more and more legislative, and more and more regulative of all the industries over the whole length and breadth of the continent. In doing this the Government are inviting failure, courting defeat, and doing what is fraught with danger to the whole community. That is the tendency of the measure. It is the danger against which’ the amendment moved by the Leader of the Opposition protests. The aim and intention of the Government is apparently to give the Court the fullest and widest powers. I shall deal with the second’ point of the extension of the area by this legislation. By extending that area the Government are again taking more and. more of the judicial character out of the tribunal and making it more and more legislative and regulative. The scheme of the Act. as it at present stands could not be better stated than it was by Mr. Justice Isaacs in his judgment in the engine-drivers’ case. He said -
The keynote of the Act is the prevention or the quelling of industrial strife which threatens or produces an interruption of industrial operations by which the wants of the community are satisfied. The public welfare is always the end in view. If the industrial operations necessary, for instance, to produce or distribute the mean* of satisfying the requirements, of the people of Australia, are in fact, or are likely to be, interrupted by a dispute between those who are co-operators in those industrial operations- that is, both employers and employes - then that dispute - with a certain qualification which is material - is in obedience to the Statute to be prevented or settled.
Later he said -
This last provision shows clearly that the public stand-point was the dominant consideration-, and indicates why “ industry “ was used in the sense of the combined operation supplying the public.
He shows there that the basis of the existing law is industries. The object of controlling industries is because industries supply and distribute to the public, and any stoppage of their operations causesthe public to suffer. We therefore require power to intervene and prevent or ‘ settle those large disputes in industries. I donot say that the Government have not the power to put in a clause regulating organizations according to handicrafts. It is possible, from the statements of the Judge, that they have that power. Dicta by the Chief Justice in the Broken Hill case at the very opening of his judgment seem to imply that that power exists from the constitutional point of view. At page 420 of the Argus Law Reports he is reported1 to have said-
The first objection taken formally is that there was no dispute in an industry extending beyond” the limits of any one State. I only remark upon that that those are not the words of theConstitution, and that a priori I do not see why there may not be one dispute embracing or extending over several industries, just as much as- there may be several disputes within the limits of one industry. It is not, however, necessary to express any decided opinion upon the point.
I am not dealing with the legal or constitutional aspect of the proposal. I am asking the Government to consider what is the fair scope and intention of the power, and what is the best thing that we as a Parliament can do in order to obtain what we want to obtain - industrial peace in the particular industries in the disputes in which, under the Constitution, we have control. As Mr. Justice Isaacs points out, and as the other Judges maintain, it is “ industries “ that form the basis of the Act. The honorable member for Cook last night pointed out from the workers’ point of view-
– It is a point of view with which the workers do not agree.
– Some of the workers may not agree with it.
– The majority are very much against it, and the honorable member for Cook knows it.
– That may be so; but the honorable member for Dalley will admit that evidently a view contrary to his own is held among the workers. The honorable member for Cook pointed out that, from the workers’ point of view, there are disadvantages in trying to organize on a purely crafts basis. My contention is that by legislating, as this Bill does, to allow handicrafts to be a basis for organization, we are extending the power of the Court indefinitely, and by every extension of power we are adding to the burden of the Court, increasing the number of cases to be decided, and making it less and less judicial and more and more regulative. Under the guise of a judicial power to be exercised for the purpose of settling industrial disputes, the Government are trying to accomplish a legislative power which is not intended by the Constitution. So surely as they strain it from its original purpose, so surely will they find in practice and experience that they will defeat their own ends. At the present time the Court deals only with industries. If a dispute extending beyond a State arises in an industry, it can give a judicial decision to settle it. Disputes in industries like the pastoral and shipping industries, whose operations extend over the Commonwealth, and are in their nature inter- State, come fairly within the jurisdiction of the Court. It was never contemplated by the framers of the Constitution, as can be gathered by reading the speeches of Mr. Kingston, and others, that the Commonwealth should attempt to regulate isolated indus’ tires whose operations were confined wholly to any one State. That, however, is attempted by the amendment. The scheme of the existing arbitration legislation is for the furtherance of collective bargaining, in which all unionists believe. That means that you must have two parties, each possessing a common interest, the employers in an industry organ’ized on the one side, and the employes on the other. You cannot have collective bar’ gaining when, on the one side, there is the organization of all the workers in a craft, and, on the other, a number of employers in different industries possessing no community of interest. For collective bargaining you must have two organizations1, each representing one side of an industry. The Bill will enable collective bargaining to be set aside. That, if not its purpose, will be its effect. There may be an organization of employes of whom, say, there are fifty in a Queensland industry, fifty others in a New South Wales industry of another character, and fifty others in a Victorian industry of a different kind. Such an organization could create a dispute with the employers of the three industries concerned,’ which may have nothing in common, and are carrying on operations in different States.
– How could such a dispute be an inter- State concern?
– Under the Bill all that is necessary to create an inter- State dispute is to have an organization of employes working in more than one State in separate industries. Should such a dispute as I have mentioned arise with the several employers in the respective States, the presiding Judge would have to investigate the conditions of three industries in the three separate States. At the same time each State has full legislative power to deal with those industries, and to give such relief as its citizens may consider necessary. What dc we find in connexion with the engine-drivers’ case, which is alleged to be the reason for the introduction of the Bill? There could be no collective bargaining in that case, because, although there might be a community of interest among the enginedrivers, there could, in the nature of things, be no community of interest amongst the 177 defendants. The defendants in that case comprised a Tasmanian smelting company, the Mayor and citizens of the city of Melbourne, the Chief Commissioner of the South Australian railways, Allen Taylor and Co. Limited, Sydney, a Queensland sugar company, the Queensland National Bank, a rubber company, a firm of grocers, the Zeehan Mines Limited, and many other firms and corporations operating in different parts of Australia. If the Judge of the Arbitration Court is to comply with the provisions of the Bill, he must determine conditions in every industry throughout Australia which comes before him. The honorable member for Maribyrnong last night interjected that there is always a lawyer to conduct the case on one side. But does the Judge give his decisions in accordance with the representations of the lawyer who appears before him? To obtain a fair and equitable settlement, there must be a thorough investigation of all the facts, requiring evidence as to the conditions obtaining in each industry in each State. To ascertain the conditions of a Queensland industry, there must be an examination on the spot, to find out the cost of living, the prices of commodities, and so on. Similar investigations must be conducted in all the other States. Could 177 individual defendants, as in the enginedrivers’ case obtain a thorough investigation of conditions in all their industries? Could the Judge find time to make himself fully acquainted with the conditions of the sugar industry in Queensland, of tinmining in Tasmania, railway management in South Australia, and harbor works at Sydney ?
– Was not an award given in the case to which the honorable member refers ?
– Yes j but did the President of the Court go to the several States ?
– Witnesses came from the other States.
– Do not the same difficulties arise under the existing law?
– No, because when the dispute is confined to an industry, typical witnesses may be called on each side.
– Over 1,600 members of the Pastoralists Union were served with notices in connexion with one case.
– That was merely a matter of dropping letters into the post-box. I am speaking of the difficulties of hearing a case in which the organization is by crafts and not by industries. In a case such as the engine-drivers, you have men banded together on the one side, and on the other a large number of employers scattered all over Australia, with nothing in common. I appreciate the excellent work which Mr. Justice Higgins has done. We have put on him an almost superhuman task. He has exercised great patience and ability, and has shown the strongest desire to do right between man and man. But we must realize that certain things are impracticable. If we are to have organization by crafts, a new system for settling disputes will be needed. The State tribunals should be called in to assist.
– Did not Mr. Justice O’Connor award different rates for different States in the shearing dispute?
– Yes, but in that dispute only one industry was concerned, and there was a community of interest on both sides. In the engine-drivers’ case there is no community of interest among the employers, but to arrive at a complete and adequate decision the affairs of 177 different industries operating all over Australia had to be investigated. I would point out to honorable members that in the Excise Act, passed to protect the labour employed in a protected industry, the Judge was required to investigate the conditions of the industry, not of the crafts concerned. In the Harvester case, Mr. Justice Higgins dealt with the conditions of the harvester industry, and fixed what he considered reasonable rates for the various classes of workmen employed. To deal with economic facts other than as they affect particular industries raises many difficulties. If, in every case, the Judge had to deal with the conditions of all the industries in which the members of a craft were employed, he would have an impossible task to perform.
– The honorable member might as well say that it is not possible for a member of Parliament to represent all the electors in his constituency.
– It is one thing to speak for 30,000 persons, and another to regulate the conditions of all the industries of Australia. If the Government try to carry out the scheme they have in view they will possibly find it impracticable. They are seeking to confer legislative and regulative powers instead of judicial powers ; and if that be done, in view of the constant application that will be made to review awards, it will lead to endless trouble, and, in the end, the whole scheme will be fraught with danger to the community.
– The Opposition are exceedingly kind to the Government in their desire to prevent mistakes being made in this legislation. Personally, however, I have a certain measure of doubt as to the honesty of intention on the part of honorable members opposite, because, if all the evils foretold must take place, I am inclined to think they would allow the Bill to pass just in order to show how inefficient the Government are. The honorable member for Darling Downs has placed before us in a concrete and clear way that which was so blurred in the speech of the Leader of the Opposition as to require much searching and unravelling, with the conviction that, when we thought we had arrived at that gentleman’s meaning, we should be told that it was not what he intended to convey. The honorable member for Darling Downs complains because opportunities are not presented for involving the parties concerned in the expenditure of money for the purpose of appealing from the decision of one man to the decision of another man. Lawyers seem to think that justice is dispensed according to the number of Courts to which appeal is made - that justice depends on employing trained minds to mystify the minds of Judges and all concerned by mere word spinning. If no greater objections can be raised to the Bill than those which we have already heard, I must say that I feel much warmer to the measure than I did. It was always intended that there should be a Court of a special kind, guided by equity and good conscience, seeing that the matters to come before it are the most difficult that call for solution. Further, it was intended that the decision of the Court ‘should settle disputes, and that the awards made must be observed under penalty. In the” case of the New South Wales Act, Mr. Wise, of that State, thought, and Parliament thought, that he had successfully provided against appeals; and those who refer to that Act now as a failure overlook the fact that it never had a chance. Its decisions were upset on appeal, and the object of Parliament thus defeated. Members of the Opposition who voted for the present Commonwealth Act intended that the decision of the Court should be final. But appeals to the High Court have rendered the legislation less workable, and limited the power of the Judge to dispense that economic justice which the honorable member for Darling Downs says he desires. That honorable member, however, is not agreeable to amend the law, as far as possible within the Constitution, in order to arrive at that justice, and urges that there should be reserved the power of appeal on a. mere technicality.
– No; on the question of jurisdiction.
– That is a technical question ; that is a matter of opinion.
– Is jurisdiction a technicality ?
– It is a matter of opinion.
– Everything is a matter of opinion.
– Surely the Opposition give the Attorney-General’s Department credit for intelligence enough not to draft Bills beyond the limits of the Constitution?
– Last year a whole section was withdrawn at the instance of the Opposition.
– That only shows how fair the Government are. Although the award given by the Court might settle a dispute and satisfy both parties, the honorable member desires that there may be appeals on the question of jurisdiction, with the result that the award may be set aside on a technicality. In ordinary litigation there are appeals on the merits of a case, but as to the Conciliation and Arbitration Court that is not so.
– There are no appeals whatever, except on questions of law.
– Questions of law that ignore justice altogether. The honorable member, like all lawyers, laughs at me.
– I should think so.
– I think that if we did the right thing, we would now bar lawyers from this Court. We do not secure economic justice if we provide means of upsetting the decisions, not on questions of fact, but on questions of jurisdiction. I do not agree that this is altogether a oneman judgment, but, even supposing it. is, how is the case altered by referring the decision to another man? The High Court consists of five Judges, and, if there are two on each side, the decision is left to one man.
– But there are two Judges with him.
– One man, however, settles the question. It is true that there is ‘only a limited number of men with the necessary qualifications to act as a Judge of the Conciliation and Arbitration Court ; but when we have selected the best, I am prepared to leave the final decision in his hands. As a layman, it appears to me that the methods of the Court must differ materially from those of ordinary Courts. Complaint is made that the Act is not clear, but when we provided that the Judge should satisfy himself in equity and good conscience that seemed to us to be sufficient. This is a special Court with a new procedure, or, if it is not such a Court, it will fail in its purpose. From the Leader of the Opposition downwards - or perhaps it ought to be upwards, seeing that we have got some clear idea of their contention from subsequent speakers - honorable members opposite evidently desire to prevent this Bill passing. The Leader of the “Opposition said that the original Act is a. good one, and on the right track. But it has been found ineffective, not because of lack of foresight, perhaps, but in the light of experience. Additional powers are necessary to make it more workable; and we ought to have the support of those who declare themselves in favour of economic justice. We find, however, that honorable members opposite, who loudly proclaim themselves in favour of conciliation and arbitration, are going to vote against the Bill, basing their objection mainly on one clause. There are honorable members, like the honorable member for Parkes and the honorable member for Fawkner, who prefer Wages Boards; but even these, although they have done much good work, usually represent the decision of one man. It was quite unnecessary on the part of the honorable member for Wimmera to remind the Prime Minister that Wages Boards could not deal with Commonwealth affairs.
– Are not the majority of the decisions of the Wages Boards arrived at without the assistance of the Chairman ?
– The point that I am making is that the objection raised to this Bill, that it will mean that one man will determine our industrial conditions, applies equally to the Wages Board system. It is the Chairman of a Wages Board who really decides what an award shall be.
– The majority of the decisions arrived at by Wages Boards are given without the intervention of the Chairman.
– I consider the Conciliation and Arbitration Court superior to the
Wages Board system. Wages Boards have undoubtedly done good, and are better than nothing at all to regulate the conditions of labour ; but the drawback is that the representatives of the workers upon them are often in the employ of the very men whom they have to meet upon them. Wages Boards have never been anything more than Boards of Conciliation. Sometimes when a Board is appointed, the representatives of one of the parties refuse to meet, and the decision of the Board is held up month after month. Everything depends upon the willingness of the parties to meet and settle their disputes, and where the parties to a dispute are willing to meet to settle their differences neither a Wages Boa,rd nor any like body is necessary. Sometimes the one side refuses to appoint representatives on a Wages Board, and a selection has to be made by the Government. Then the representatives appointed in this way refuse occasionally to meet, and more trouble arises. Delegates have in some cases lost their positions as the result of putting up a fight for the workers; Men have been boycotted and discharged from their employment because of their actions as members of Wages Boards. The representatives of the men open their mouths at the risk of great sacrifice and loss. The Wages Board system stands condemned.
– The honorable member’s statement is not consistent with the statement in his book concerning the Wages Board system.
– I think it is. I said in my book that the Wages Board system had done good work, and that any system which would bring the two parties together was far better than a policy under which they would be allowed .to remain apart. The Arbitration Court is much better than the Wages Board system, because the President of the Court has power to compel the two parties to a dispute to come together. In Great .Britain, the Board of Conciliation, acting under the Board of Trade, has settled many disputes, and has done good work, yet troubles have arisen in connexion with it. The Board made an award in regard te the railway employes, and breaches of that award by the railway managers led to the recent great strike in England. The men complained constantly of those breaches, but the railway managers refused to meet them to settle the points in dispute. Finally, the railway employes, being unable to submit for all time to this sort of treatment, stopped the wheels from going round. In that way public attention was directed to their position, the people became alarmed, and the employers were practically coerced into meeting representatives of the men, with the result that the dispute was settled. The people are finding out that that system of conciliation is a failure. We have more class feeling and bitterness in Australia than exists in most countries, and nothing but a tribunal with the power of a Supreme Court to compel the parties to a dispute to appear before it will enable us to secure anything like industrial peace. The power of the Court must be practically unlimited. Under the Constitution as it stands our Conciliation and Arbitration Court has but a very restricted power, and the Opposition recently put up a successful fight against an attempt to extend that power.
– ,: Extend “ is a very mild word.
– Our desire was that the power of the Court should Be complete, for we felt that anything less would be unsatisfactory. The voluntary conciliation, to which the honorable member for Parkes has referred, was resorted to when there existed nothing like the bitterness that prevails to-day. The social problem is becoming more and more intensified. There is increasing intelligence on the part of the masses and increasing discontent. People are no longer willing to be, practically, slaves, both mentally and physically. They are no longer content to do just what they are told. The day when such a condition of affairs was possible has gone, and hence we require very efficient Courts to mete out justice. Even with a Court possessing the fullest power, we should not be entirely free from industrial disturbances, because in the very nature of things changes and difficulties must occur. I cannot understand the attitude of honorable members opposite who claim that the Act should stand as it is, although experience has shown that it needs to be amended. The original New Zealand Act has been followed by a series of amending measures; it has been improved as experience has shown improvement to be necessary. The New Zealand Parliament has sovereign power to deal with the whole matter, and it is certainly our duty to exercise to the full what power we have to improve the existing law. If the Opposition can point in Committee to any serious defect in the Bill, I am sure that the Government will be prepared to remedy it. But it is absurd for the Opposition to submit, as they have done, an amendment turning down the Bill altogether, on the ground that its passage would mean handing over to one individual the control of the conditions of all industry in Australia. The President of the Court has not a sufficiently wide jurisdiction, and we must take an early opportunity to give him the fullest jurisdiction with which we can vest him to determine disputes. Unless we do so, we cannot hope for the settlement of industrial troubles. The honorable member for Parkes, who spoke at length on this question, is generally amusing, but he expressed surprise at the laughter in which we indulged during the course of his speech. Those who are actively connected with organizations cannot help laughing when they hear the honorable member, who professes to have followed this question closely, asserting that he has never heard of members of a union meeting before going out on strike. The mere fact that the holding of such a meeting is not announced in the press is no proof that it is not held. Honorable members have two or three meals a day, but no publicity is drawn to the fact. Certain things take place in the ordinary course of events, and no one expects to see any public reference to them.How could men determine to go out on strike without holding a meeting to dis-cuss the matter? Occasions have occurred on which men have “ downed tools “ on account of some immediate trouble, but in such cases their action would have been the same even if a preliminary meeting had been held. Trade union rules with regard to strikes and attempted strikes are very strict. Union leaders in both the Old World and the New have always looked upon a strike as the last resort.
– It seems now to be iri many cases the first resort.
– No; the honorable member must not seek for knowledge in this respect from the newspapers. Such a statement is made only by those who do not take the trouble to get the inside knowledge. Honorable members should look into the facts for themselves. It is notorious that Labour leaders are strongly opposed to strikes, and advise recourse to them only in the last resort. But, after all, I do not know why we should expect absolute perfection in humanity. Neither the employers nor the employes are perfect ; they are human beings and all are very much alike. The honorable member for Parkes complained that he never heard of a Labour man denouncing a strike. Every one who has looked into this subject with a desire to ascertain the true facts, knows, however, that Labour men have been urging the workers for years to organize, and to appeal to the Legislatures and to the Courts that have been provided by the Parliaments of those countries in which they have voting power. We have appealed to them again and again not to go on strike, but to obtain a decision of the Court and to stand by it. The newspapers, however, do not report such appeals on our part. It would be useless to search the daily press at the present time for any statement favorable to Labour men. Evidence as to these matters cannot be taken from such sources, but the fact remains that persistent effort has been made by Labour leaders to induce men to appeal to the Legislatures and the Courts of their country. We want efficiency in the Court and complete power on the part of the Court to deal with the questions submitted to it. It is a serious thing to ask trade unions to give up that which hasbeen their only weapon - the power to suspend work - unless we can guarantee them an efficient Court capable of settling their difficulties. If honorable members opposite desire the imposition of a severe penalty on any body of men who violate the law by going out on strike, they must join with us in our attempt to make the Court as efficient as possible. If it were not to be made efficient, I should not favour this class of legislation. The workers are going to have a measure of economic justice, but this method of settling disputes will not get rid of all the evils from which the masses are suffering to-day. It touches only the problem of wages, and leaves, untouched the question of what the sovereign will buy. I wish to correct some wrong impressions created by the honorable member for Parkes. The honorable member, who claims to be an economist, says that we cannot go on raising wages without raising the cost of production, and that the cost of production has increased because wages have increased. But as the honorable member for Bourke pointed out, logic of that kind only means that to improve the position of the workers we must reduce their wages again and again until finally they will be able to live for nothing. Every one must recognise the fallacy of such an argument as that advanced by the honorable member for Parkes. New machinery and the applied forces of nature are constantly leading: to a reduction in the cost of production. The rise in the cost of living is not due tothe cost of labour. I do not deny that if wages are increased the cost of production, must be increased, but the point that wehave to consider is to what extent the increase in the cost of production is the result of increased wages. The percentage must: be very small in manufacturing industries. In the building trade, where much work. isdone by individual labour, the raising of wages would probably increase the cost of production to the same extent; but in the manufacturing industries production hasbeen immensely cheapened by the introduction of improved machinery. Consequently, although wages have increased the cost of production! has been reduced ; yet side by side with that reduction in the cost of production the cost of living is daily increasing. The Court has no power to deal with that aspect of the question. As a proof of what I say, that economic writer, Mr. Chiozza Money, M.P., of England, in an article published in The Nation, analyzes the figures of the Board of Trade. He shows that in the fifteen years from 1895 to 1910 there was an increase of wages to the extent of 13.3 per cent. Taking forty-five articles of every day consumption, there was an increase of 19.5 per cent, in the wholesale and 17.9 per cent, in the retail London prices. Surely that is an answer to the contention that it is the rise in the workmen’s wages that has caused the increased cost of living. It . is shown also that the average income of the income taxpayer increased during the same period from .£698 to £964, or an increase of ^266 per income taxpayer, the total aggregate assessment under the income tax increasing by no less than £402,000,000. It is in those figures that the explanation of the increased price of goods is to be found. It lies in the profittaking. Those who are making profits are taking more out of the workers than the sum by which the wages have increased. That exposes the fallacy of the argument of the honorable member for Parkes that wages are the cause of the increased cost of living. There are many other causes that we know of, and which it is perhaps unnecessary to discuss now. One factor is the increased rents. My observation and inquiries in the Old World showed me that rents for workmen’s homes are only about half what the rent-taker takes here. I really do not know how the workers at Home keep life in their bodies on the wages that they get.
– The rents at Home are very much regulated by the value of money there. A man at Home is quite content to get 3 per cent, on his capital.
– I have pointed out how the application of machinery, and constant improvements in machinery, have been steadily decreasing the cost of production, and that the cost of living has gone up owing to other causes than wages. _ I admit that in the building trade, for instance, the increase of wages has to be taken to some extent into account ; but in all manufactures machinery has been such a factor in eliminating labour that the question of wages is only a small one. The Tariff Commission put down wages at only about 16 per cent, on an average of the cost of articles. The Conciliation and Arbitration Courts do not touch all these issues; they must be settled in other ways.
– In New South Wales the cost of building has gone up 50 per cent, as a consequence of the increase of wages and materials.
– The increase of wages is by no means the only cause. The increase of wages in brickmaking raised the cost of making the bricks by 4 1/2 d. per thousand, but the combine put the price up 4s. per thousand.
– The increased wages of carters, clay-getters, machinery workers, and brickmakers have to be taken into account.
– If the honorable member will extend his reading to the statements made by the leaders of the great trusts in the United States he will find that they openly admit that the cost of wages is absolutely never considered by them when fixing their selling prices. They have gone far beyond that. They get the cost of wages as low as they can, but it has no reference to the price at which they sell an article.
– The case of a trust is quite different.’
– Wherever there is a combine, its object is to take all it can get out of society.
– Is it not a fact that the New South Wales Government are now making bricks at half the price charged by the combine?
– That is a fallacy ; the Government keep no books, and do not calculate the value of their machinery, lt all comes out of the old milch cow - the State.
– At the slow pace at which the honorable member learns it will take him a very long time to get up to date.
– Mr. Griffiths promised to sell the public bricks at ^1 a thousand; he has never done it.
– He has not yet been able to get all the kilns up to supply the public. It takes the Department all their time to supply the Government’s own requirements. When they do begin to supply the public there will be a big fall in the price of bricks outside. The world will go on even if honorable members opposite shut their eyes to the changes that are taking place and the progress that is being made. We must go back to the main issue in this connexion. All these methods of Boards of Conciliation have been a failure, because of the bitterness between the parties. They refused to go before such a Board. What is required is a Court with very big powers to intervene and settle disputes. It cannot possibly have power to settle unless it can settle all the conditions of the industry. If it is to be limited as our Federal Court is limited it will never be very satisfactory. That aspect makes the problem the more serious, because we cannot expect trade unions to be ready to voluntarily surrender their right to strike unless there is an efficient Court to go to. If the conditions cannot be settled properly no man of grit and courage will sit down idly and suffer injustice. Although there have been increases in wages the cost of living has increased in a greater proportion. We have not statistics enough available to show the exact increase of the cost of living in the Commonwealth, but Board of Trade returns in England have shown that wages actually have been falling ; yet when the workers there ask for consideration the employing class will not meet them or make them any concession. Profit taking is going on all the time. Honorable members cannot expect men of our race to stand that sort of thing. They are going to make trouble, and are justified in making it. They would not be men if they did not. What is the use of saying that they ought not to go on strike, or that honorable members on this side do not express their disapproval when strikes take place?
– They will continue to strike until they get their own way.
– And the honorable member will go on until he gets his own way, although that may not be very good for himself. The men are prepared to take a fair deal. I have found them too modest, as a general rule, in their demands. They show too much consideration to the other side. Honorable members opposite have picked out extreme cases, which no one justifies. The unions have made mistakes, but who is to be their judge?
– The honorable member does not condemn them.
– I do not, because they know their own business best all the time. It is always most difficult to get a workman stirred up to stick up for himself and his own rights, to say nothing of inducing him to go to extremes. He is very modest in his demands. We do not want industrial trouble. We have reached a period when society is justified in saying, “ You shall not upset the industrial machine.” As society becomes more complex and interwoven, every dispute that arises becomes the more dangerous because of the chance of its spreading. I have always been a believer in industrial unionism, with all those connected with one trade united if possible in one organization. I do not say that the same rule can be applied to every industry, but if there is no Court to settle all the conditions, then craft unionism is a drawback. I do not know that the same difficulty would arise if we had an efficient Court to settle the disputes of every section, but it must be remembered that if these things are to be narrowed down to too small organizations the cost of going to the Court becomes a more and more serious factor. It is very costly now to approach the Court even if the lawyers are kept out of it. Strikes were costly, but they were forced on the men. They upset society, and cause big losses ; they were therefore great evils just as war is a great evil. War is a loss to every nation, as has been recently so ably shown by Norman Angel. We said, “We want to stop strikes.” We are justified in attempting to stop them, but we also want a Court that is as economic as possible. If appeals are facilitated, and points of law regarding jurisdiction are to be taken and dealt with at length, the cost will be still further increased, and unions will lie unable to take advantage of the Court at all. At the ^ r e time it is proposed to deprive them of the right of striking, with the result that they will be cornered in such a way that they will become slaves. The small unions are too weak to go to the Court. Some of them have to appeal to other unions for help to get economic justice from a Court. Yet honorable members opposite want to prevent their having a chance to go to the Court, by imposing limitations of all kinds, and having an imperfect Act.
– Will the honorable member give an illustration of unions being unable to get economic justice?
– That happens if a union is prevented by the cost from going to the Court. When they do go to the Court there is a risk of having the decision, upset, and so it does not pay them to goNaturally in those circumstances they will say, “ We would do better if we followed the old method.” We are all aiming ai securing peace and harmonious working, but we will not get it if we follow the advice of the Opposition. It is a very serious matter for employers and employes alike to have a bad spirit running through the ranks of the workers, but the whole question hinges upon the efficiency of the machinery that Parliament provides for the settlement of disputes. We have not arc efficient Court now. We certainly have an efficient Judge, one of the ablest to be found; but he is limited all the time by the question of jurisdiction. He said; as the honorable member for Darling Downs quoted, that Parliament should legislate. We are proposing to legislate now. I confess that I do not like the idea of craft unionism, but circumstances have greatly changed. We have shifted the battle ground from the strike field to the Law Courts. Instead of spending money on strikes, we shall have to spend it in getting justice from the Court. _ Parliament will not do what is right if it allows the Court to be prevented from giving this justice. There are many remedies which we have power to give, and the Bill is an attempt to provide some of them. If it be found that there is too much work for one Judge to do, we must appoint others. In New South Wales they declared the arbitration law to be a failure, and did not renew it. That, of course, was the employers’ cry, but they will have to recognise that the employes will not remain quiet under injustice. Something has been said about the big organization with which I am connected. Its strength has to be counted with. Its members have been satisfied with the awards obtained, and have loyally abided by them, and their organization has enabled them to compel the other side to abide by them. We must make the Court as useful as possible. No one who wishes for industrial peace should oppose an amendment of the law.’
– I assure the honorable member for Darling that there is no difference between members on this side and those of his party in regard to the desire that labour shall receive adequate wages, nor do I think there is a difference of opinion on the point that increase of wages means better results from the workmen. There is, of course, a limit in this as in other matters, and an opposition of opinions in regard to that limit, as well as an apparent opposition due to the fact that we” are not always speaking from the same point of view. The limit of a man’s powers may be represented by the number twenty. His wages may stimulate his exertion to a degree which should be represented by the number ten, and might be increased to provide a stimulus which would call forth an exertion which should be represented by the number twenty. But no increase would enable him to do a day’s work which might be represented by the number thirty, or any number higher than twenty. On this point there is no real difference between the honorable member for Parkes and the honorable member for Darling.
– No man can do more than his best.
– Undoubtedly. The honorable member for Darling has shown clearly that during the last thirty or forty years, although wages in England have nominally increased, there has been, not a real increase, but a decrease. I am aware of the facts from the reading of statistics in the Board of Trade report, and Mr. Chiozza Money’s gloss upon them. Of course, these issues are not relevant to, or at least only remotely connected with, a Bill for altering the machinery of the existing arbitration law. All measures designed to give labour a fairer share in the profits of production must receive consideration. The increase in the cost of building shows that, by methods which are not Socialistic in the ordinary sense of the word, although really so, a re-arrangement of incomes is going on quietly which must lead to a better balanced community. If building costs 50 to 100 per cent, more than it did twenty years ago, I am content, so long as a proportionate increased return, from labour is obtained, and the increased profits do not go into the wrong pocket, which I believe to be, to an extent, the case now. From figures which’ have been furnished to me, I have reason to think that the appreciation! of cost is due only to a small extent to the higher rates of labour. I refer tothese matters lest there remain in the minds of honorable members, and of those who read the debates, -the misapprehension that there is any difference between us in regard to the desire that the wholesome revolution commenced some time ago shall not end until society has obtained that approximate balance which is for the general good’. I have great sympathy with the members of the engine-drivers’ organization, the cancellation of whose award has, perhaps, precipitated the introduction of this measure. I was in the case up to a certain point, and dropped out because most of the companies which are represented came to an agreement with their men which, in the long run, was made the basis of the award ultimately upset. I realize that the enginedrivers have had difficulties to face because of the non-recognition by State tribunals of craft interests. They have had to fight cases before one tribunal after another, ana have sometimes been blocked by technicalities which the State Parliaments can, and which we cannot, cure.
– Which they will not cure. Mr. GLYNN. - I do not suppose that there is an absence of desire, but there is a limitation on human wisdom and action. I have nothing to say against other politicians who are, perhaps, quite up to our moral level, even if some may think them to be, when they differ from us, not our intellectual equals. Through coming into contact with the engine-drivers, and by hearing what might be called irrelevant issues, I ascertained that they were driven to the Commonwealth Court to get an award which should apply to the whole craft. They could not get State awards applying to all the engine-drivers, firemen, and others connected with their avocation without appealing to many Boards. But it is for the States to improve their legislation rather than for us to pass Statutes which may lead to subsequent heartburning when reviewed by the High Court. A great deal of trouble has been caused because some honorable members consider that the powers given by the Constitution are wider than they really are. They seem to think that by extending the provisions of our Arbitration Act we can remedy the evils to which I have referred. I cannot see why the word “prohibition” has been used, unless for the purposes of a placard. We cannot by giving the Court the right of prohibition exercise powers not given to us by the Constitution, but left to the States. The Attorney-General interjected when the honorable member for Darling Downs wa>> speaking, that what is proposed now is in the Act of 1904. No. doubt he referred to the use of the word “ quash “ as connected with prohibition. The employment of that word was challenged by honorable members on this side at the time, and I would remind the honorable gentleman that two wrongs do not make a right. We cannot, in this matter, give the Arbitration Court wider jurisdiction. If we could do so, we should, as the honorable member for Darling Downs pointed out, make one tribunal arbitrary and absolute in regard to the settlement of industrial disputes throughout the Commonwealth. The arbitration law of. New South Wales has been amended, I understand, by the adoption of a principle somewhat similar to that which I am discussing, under which no award, so long as it is an award, can be challenged. But we cannot pass such a provision. If we could, we should enable the Arbitration Court to arrogate to itself what powers it liked. The New South Wales Legislature has power to enact that nothing done by its industrial tribunal shall be challenged anywhere, but if we passed such an enactment it would be tantamount to declaring that the tribunal could decide what powers of the Commonwealth or of the States could conveniently be exercised for the purpose of making an award, and powers would thus be exercised by the Commonwealth which are not given to it by the Constitution. In the case of the Carpenters and Joiners v. Haver-field. 5, Commonwealth Law Reports, the High Court declared in connexion with the unamended New South Wales Arbitration Act that -
This Court has held that the Arbitration Court cannot, under the guise of making an award in a matter within its jurisdiction, deal with something that is not an industrial matter.
If the Court, under the proposed amendment, attempted to deal with something that is not an industrial matter within the meaning of the Constitution, all our declarations and definitions to the effect that there is to be no prohibition would be so much waste paper. I ask the AttorneyGeneral to leave this amendment out, because the only result will be that the High Court will declare that such a power does not exist, and people, who do not understand the Constitution, will complain that the Judiciary is threatening to usurp our legislative functions.
– That is what people are saying now.
– That shows the application of my remarks, when even such an intelligent mind as that of the honorable member thinks that the High Court is really usurping our province. If that be the opinion of any member of this House, do not let us leave it open to the general public, who cannot devote much time to these subjects, to say that, when prohibition is declared to be inoperative the Judiciary is blocking the way to our making the industrial laws effective. In an examination of the question of industrial conciliation and arbitration by a writer named Knoop, who, I think, is a German, attention is called to the ineffectiveness in England, America, and Australia, of what we might call the legislative character of some tribunals. He mentions that there are two kinds of industrial disputes - one the proper subject of arbitration, which is our power, and another a proper subject of industrial legislation, which is not our power. Let me quote his words -
It is most important to recognise that there are two classes of labour disputes. The first class arises out of the interpretation of existing contracts. These disputes are generally individual, and are particularly suited for settlement by arbitration, if no settlement can be effected by any other method.
He goes on to say -
It will be easily seen that disputes of the second class - which deals, say, with future contracts, as our Arbitration Act attempts to do - are not suitable for decision by arbitration ; and, shortly, the distinction between the two classes may be well expressed by saying that the former is of a judicial and the latter of an essentially legislative character.
I repeat that a good deal of soreness and trouble arises from the fact that we think we have got for the people legislative power, through arbitration, to regulate industrial conditions, whereas we have not. On the who.’e, the High Court, instead of limiting the power given by the Constitution, has, if anything, widened its scope in the direction of liberality.
– If so, the people who originally framed the Constitution did not think so.
– I shall show in a minute, by referring to the Federal Convention report, that they did. I am not saying what ought, or ought not to have been done; I am dealing with the powers as the people vested them in this Parliament. I shall not speak of the referenda-
– The people voted wrong, anyhow 1
– There might have been some concessions, if suggestions from this side had been taken. I should have advocated some of the amendments.
– But the Opposition, as a whole, would not have done so
– I think the Opposition as a whole would have done so. However, we are not dealing with that matter now. All the Acts and provisions made in England up to the date of our Constitution were in the direction of judicial arbitration, from the Act of 1824, which was the first great consolidating Act dealing with employers and employed, though the words, which .are now happily abolished, then used were “ masters and servants.” All these Acts deal with judicial arbitration on the lines of our Arbitration Act as it stands at present, but not on the lines on which it is proposed to amend it. That is, they are Acts attempting to deal with clearly defined industries, and not conglomerated and unrelated industries. I could, if necessary, show this by reference to the Act of 1824, the Act of 1872, and the principal Act, relied on by Mr. Askwith of the Board of Trade, through whose mediation the solution of so ma.r.m strike difficulties has been brought about in the last ten or fifteen years. It is not altogether right to think that the question of the possibility of making aggregations of employes and industries, or grouping together, as in the engineer’s case, unrelated crafts, was raised for the first time in that case. It was raised in the saw-millers’ case and the Jumbunna case, but in argument, and was never pushed on to a decision by the High Court. The only power under the English Acts of dealing with future contracts - that is, regulating conditions and wages for the future - was by the consent of both sides, either implied consent through being members of organizations, ‘ or by consent when a dispute had arisen, and been submitted for consideration by a
Board of Trade tribunal. To the extent, then, to which we depart from arbitration, or the judicial determination of something, and endeavour to regulate future wages we are dealing, not with arbitration, but with industrial legislation. I think we can improve our Acts, and will endeavour to point out how. I emphasize this point by showing that a great deal of the difference of opinion as to the decisions of the High Court has been caused by an ill-founded assumption in some parts that we have legislative powers in these matters - I was going to say greater legislative powers than our Constitution gives to us. The Arbitration Act provides at present, practically, for compulsory organization on one side, but there is no effective provision for organization on the other. I say that it is compulsory on one side, because employes cannot submit a dispute at present except through an organization. It may be done by reference from a State tribunal, or it may be that, in other ways, there can be held to be an industrial dispute without an organization. We may take it on the whole, however, that a body of men cannot come before the Court except as an organization; and that, on the other side, there is no compulsory organization. If we amend the Act in the direction suggested, we can never have that organization. We could not possibly insist by law that the employers must organize, even if the Constitution so allowed. In the case of the engineers, for instance, they are employed at Broken Hill in silver-mining, in smelting at Port Pirie, in coal-mining, in electrical works, and in twenty-three or twenty-four other categories ; and we could not insist that they must organize, even if we had power to so legislate. And we diminish the stimulus to voluntary organization if we provide that the basis for the future of an industry, and, consequently, of the organization, is to be unrelated industries or trades. If we confine the interpretation of the word “industry” as it is interpreted by the High Court - that is, to one definite line of production, or service,- or to industries that are related in general interests, so that there may be some nexus between employers as well as some nexus between the men, and some mutual interest between employers and employed - we may induce them to organize”; and I have no objection personally to force an organization on the other side. But would that be expedient? Some would think - referring again to the question of a liberal interpretation - that such a Trade as the bootmakers was not within the purview of the Constitution. Clearly, sailors connected with Inter-State shipping are, because there is no power to make an industrial award applicable, except in the Federal Parliament. If we take the bootmakers, however, it might be said that all they demand could be achieved by the legislation of the States. But there might be one set of laws in one State, and another set in another State; and the consequence would be that Inter-State competition would be on an unfair basis. That is one of the points that the present Opposition, when in power, proposed to deal with. It was proposed that an InterState Commission should be _ established, with general power to deal with these industrial matters as well as with unemployment, and should be so constituted as, on reference from a State tribunal, to be able to reconcile disparities that make against equality of competition.
Sitting suspended from i to 2.15 p.m.
– The present system provides for organization on one side, and practically makes it compulsory, since otherwise the Act could not be availed of by the employes. But it has the defect of offering no effective inducement or compulsion for organization on the side of the employers. If both were organized in relation to a defined industry, or, in other words, a homogeneous line of production, such as gold or silver mining, then we could get in arbitration - I do not know that we could get it under the Act, or under our legislative power - but we could get in arbitration something approaching a common rule. All the members of the organizations on both sides - all the employers connected with that clean cut industrycould be bound, as members of the organization, and all the employes connected with the industry might also be compelled, if we wished to make arbitration effective, to organize. When we turn to the bootmakers’ case, we find that the decisions are not altogether satisfactory in their scope, although they are so far as the law is concerned. We can bind the employes to the extent only to which they are members of an organization, and we very properly bind them under arbitration, although we really are, in effect, framing, as regards that organization, confined at present to a definite industry, a legislative rule. By joining the organizations, either at the time of the dispute, or subsequently, the members of those organizations voluntarily ac cept the award that is applied to them. “So that, although you are within the scope of the organization, by binding its members, getting a rule applicable to members, such as you would get under the State determination Boards, you can regard that as arbitration. If you compelled the employers in an industry to amalgamate for the purpose only of settling disputes in that industry, the effect would be also to bind all the employers connected with that industry. That would be the full limits to which you could apply any industrial rule in arbitration. I am pointing out the limits of our power, even if the Constitution were amended, to deal with arbitration matters in Australia. I am only at present suggesting a possible solution of some of the difficulties, and I do not want it to be assumed that I am advocating, on behalf of others, at all events, an amendment of the Constitution in that direction. Under this Bill, as I shall show by reference to a judgment of the High Court, we are destroying the incentive that exists at present towards organization, upon that basis, by extending the definition of “ industry “ to the lengths proposed. Is this consistent with arbitration? I find that, in England’^ in 1903, there took place a meeting of trade unions at which a resolution was tabled in favour of the organization of both employers and employes in specific industries on the basis I have mentioned. As there was no statutory Court in existence, it was proposed that both sides should elect representatives to constitute a Court, and that the body thus constituted should have as its President a Justice of one of the Divisional Courts in England. That was the resolution tabled, and it shows, at all events, that a fairly large section of the Labour party in the Old Country were working towards arbitration on the lines which I suggest might be possible if we confined our power to regulate industrial matters through arbitration.
– Was not that proposal thrown out by the Trade Union Congress?
– Yes; because the Congress was opposed to compulsion of any sort. Trade unionists in England think that they are getting on better under the existing principle of voluntary arbitration than they would do under such an Act as ours. Mr. Knoop, in the book to which I have referred, points to the danger of bringing compulsion to bear on organizations which are- attaining very good ends under the voluntary system. Grouping does take place for voluntary arbitration on something after these lines. In 1901-2, there were 848 employers’ associations, and 1,236 trade unions for the purpose of arbitration on those lines. Any award come to through their voluntary Boards was binding on every employer as well as every employe in the industry, who was a member of the association or trade union respectively, and they had a fairly effective means of inducing employers and employes to become members of those organizations. Therefore, there is some experience to justify the suggestion I am now putting before honorable members. I come now to the question of what is the constitutional power. Let us get at it bit by bit by a reference in the first place to the Jumbunna case. Mr. Justice Isaacs, in that case, said -
An industrial dispute under the Act -
I shall give later on what the High Court thought would be an industrial dispute under the Constitution - and within the constitutional power - he deals apparently with both - is a dispute in some industry. What that “industry” is, we are told in the Engine-drivers case -
It may be between employers and employes or employe’s and employes, as, for instance, the well-known demarcation disputes in the shipbuilding trade.
That is the only possible reason, if it is one, for constituting a craft, if we had the power, as an industry. The demarcation dispute must be between different branches, or different trades in the same industry. That is the position both here and in England. Mr. Justice Isaacs proceeded to point out that an industrial dispute, under the Act, and within the constitutional power - must, of course, have reference to industrial conditions.
The point I made referred to the uselessness of trying to evade the Constitution by placing the Court beyond the power of prohibition -
The connecting link is the industry and not the particular contract of employment between specific employers and specific employes.
The learned Justice was referring there to the contention that the Constitution might be confined to a dispute between a particular employer and his employes, or that, as some thought, it might be extended to something wider - to something in the nature of industrial war between a body of men in unrelated industries. What Mr. Justice Isaacs clearly and precisely points out in this judgment is that it is neither the narrower dispute between a particular em ployer and his employes, nor the wider one which would make the trouble practically an industrial war. I would ask the Government to carefully note what I might call the obiter dicta of the Justices on the constitutional power. Up to the present, we have been deciding whether certain provisions in the Act are within the Constitution. But, as there are obiter dicta of the Judges as to the scope of the constitutional power, we must be careful that we are not imperilling the validity of the Act of 1904 itself by dragging in provisions that are not necessarily matters incidental to arbitration.
– The High Court would have to bow to the legislation.
– It would have to bow to the will of the people if expressed in any constitutional amendment.
– The honorable member for East Sydney means that the Court would have to bow to an Act of Parliament.
– Surely not; if outside the power, that would be impossible. In order, then, to make it efficacious, and, without doubt, constitutional, you must coafine your organization, for the purpose of arbitration, to some specific industry or line of manufacture, production, or service. This Bill does not do that. T shall show what it does attempt to do by a quotation from a judgment of the High Court as to what the Court itself could not do under the Act, as it stands, and, by inference, under the Constitution.
– Does the Bill do anything in that direction that any State Act does not permit?
– I cannot examine all the State Acts in order to reply to that question, but I can say at once that the Bill does something which no Federal Act could permit, and that is sufficient for my purpose. For instance, if we declared that there should be no power of prohibition, then a common rule could not be challenged, and the President of the Court, by declaring that he had power to make a common rule, and acting accordingly, would take away powers under a State Act.
– I cannot answer the honorable member by interjection, but I shall do so later on.
– I am dealing with what the Court cannot do under the Constitution, and that is the- real point. Let us look at the Engine-drivers case. The Chief Justice, in referring to the scheme of the Act, pointed out that it assumes that the employers concerned in an industrial dispute have a substantial solidity of interest - which would be impossible under the grouping of industries proposed by this amendment - already existing antecedent to, and independent of. the dispute. That is to say, a mere dragging of them into a dispute does not constitute a solidity of interests. The Chief Justice went on to say -
It seems to me as impossible to deny that the employers and employes concerned in an industrial dispute must be engaged in the same industry as to affirm that every person who employs a carpenter or engine-driver is, in any relevant tense, engaged in the industry of carpentry or engine-driving, or to say that there is a community of industrial interest between a farmer who employs an engine-driver to drive a stationary engine in Queensland, and a company which employs drivers of locomotive engines in Tasmania.
He touches now incidentally on the constitutional power -
To these considerations it may be added that the regulation of wages or hours of employment for the whole body of persons engaged in the same vocation, but employed in different industrial enterprises, may be fitly regarded as a proper subject for a law to be made by a Parliament having authority to deal with such matters, or by some delegated legislative authority, such as a Wages Board, rather than as a subject for litigation or arbitration.
In other words, what the Government are trying to do now is not arbitration or litigation, and you have no arbitration unless you have something as definite and clear as litigation, or approximating to that decisiveness and clearness which you get in litigation between parties. He says -
I am aware that attempts have been made to turn the Act into a scheme for effecting this purpose. But, as I have said in previous cases, the Arbitration Court has no legislative authority ; its functions are to settle actual disputes between actual employers, or groups of employers, on the one hand and employe’s on the other, and then only when the dispute extends beyond one State. Nor, in my opinion, was the Act, any more than the provision in section 51 (xxxv.) of the Constitution, designed to facilitate the manufacture of disputes for the purpose of bringing them before a Federal tribunal. On the contrary, it was designed, however it has been sought to be applied, to promote industrial peace.
I ask honorable members opposite to ponder those words in connexion with the proposed amendment of the Act, and see whether I am not justified in suggesting the possibility of the whole of their legislation being imperilled by the introduction of sweeping provisions as regards the principle of the Act of 1904. If the High Court determines that these amendments are invalid, it may affect the whole of this legislation, even though the alteration is only brought in by incorporation.
– Does the honorable member say that the passing of this Bill may nullify the whole of the Act of 1904?
– I only say that it is possible. The principle adopted in America and here is that, if you have in your Act a provision which is ultra vires, and you cannot sever it in expression from the rest of the Act, or if when you do so the balance is a law substantially different from what you have passed, the whole of the legislation has to be declared invalid. Although up to the present that principle has applied only to a single Act, I see no reason why it would not apply through the subsequent incorporation in an amending measure like this of provisions which are ultra vires. Therefore, by passing this Bill the whole of our arbitration legislation might be invalidated.
– If the honorable member’s contention is correct, the question may soon arise whether it would not be better to wreck the whole Act at once rather than stave in a plank at a time.
– Does the honorable member consider that the object of my criticism of the Bill is to destroy it altogether ?
– 1 do not suggest that.
– As a matter of fact, the Opposition have been very fair about this Bill. There are on this side members who would accept some of its provisions, and who do not think they will interfere with the validity of the Act at all.
– That. is why they propose an amendment to knock it all out.
– They propose nothing of the kind. The amendment of the Leader of the Opposition is tabled so that the effect of moving “ That the Bill be read this day six months” would not follow if it were carried. It was also tabled because what it draws attention to could not have been expressed in any criticism of the clauses in the Bill. It has the object and effect of pointing out something that may be deduced from the provisions of the Bill in a way that will not block the Bill.
– I did not suggest that the criticisms of the Opposition were bacl, or even adverse. I merely said that if an attempt to amend the law in the direction of justice meant wrecking the whole legislation, the question might arise whether it would not be better to wreck it straight away.
– We always differ in our conclusions because of the differences in our premises. The moment one assumes that this Bill is “ in the direction of justice,” as the honorable member puts it, its constitutionality, its merits, and its expediency are also assumed. I pointed out at the beginning of my speech that the difference between the honorable member for Darling and the honorable member for Parkes was really the difference “of the points of view, uncommunicated to one another, from which they viewed the matter.
– The honorable member asks us to accept his criticism as honest, and he ought in return to accept our endeavour to improve the Act as an honest intention to secure justice.
Mfr. GLYNN. - I said sp at the beginning, but I am afraid that the methods adopted may be shortsighted. By introducing matters which are not arbitration, the Government may defeat the object which they could have attained by other amendments. The Opposition have been fair. Had we tabled a motion that would defeat the Bill for the session, we might fairly have been charged with blocking an attempt to modify a defect, to some acknowledged extent, in the Act. But if the amendment now before the House is carried the Bill can be gone on with next day. We are therefore entitled to claim that we have not been unfair to the Government in the matter. There is an incidental reference in the Jumbunna case to the constitutional power, Mr. Justice Isaacs saying
Whatever may be the meaning of industrial dispute in the Constitution I am not at all sure that the Act does not often limit its signification somewhat more narrowly than the Constitution would warrant.
In other words, he is not sure that it is not to some extent less than the constitutional power, showing that, in his opinion, that constitutional power may be somewhat narrower than, at all events, honorable members now assume for the purposes of this Bill that it is. Let me quote from the Federated Saw-millers’ case. To show that something in the nature of real industrial war or a vast strike amongst persons engaged in unrelated occupations would not necessarily be susceptible to arbitration, the learned Judge said -
First, then, I say the term “dispute” itself connotes the existence of disputants on’ both sides.
That is consistent with the statement of the Chief Justice in the Engineers’ case, that it is something in the nature of litigation. The Judge also said -
It also connotes that the difference between the parties is one capable of settlement _ by, mutual agreement. If the dispute is widespread there may be political agitation, but it is not a dispute.
Let us see what is meant by industry and arbitration in England. I looked last night into the final report of the Royal Commission on Labour issued in 1894. It contains, I think, the most exhaustive examination of the basis of organization, the character and scope of industrial disputes, that is open for the research of honorable members. Remembering that this amendment of the Act proposes to define an aggregation of employes in a number of unrelated industries, as an industry, let us see whether that would be an “ industry “ within the meaning that labour or capital assigns to the word in connexion with industrial disputes at Home. In the final report of the Royal Commission on Labour, the term “ trade union “ is employed in the usual sense as meaning an association of workmen. In other words, the union is an association of men in a trade or industry. In the Act, as it stands, that is the sense in which the association of employes is regarded. Under section 55 it is an association of employes in an industry,, and, therefore, the association of employes itself is not the industry, but the amendment proposes to define an association of the men as an industry itself.
– What is the definition of “industry” in the Act as it stands? Is it not any trade, business, calling, &c. ?
– I contend that the association of the operatives cannot be defined as an industry, nor does the Act so define it. Does the Attorney-General say that the Act as it stands at present defines a craft as an industry?
– No. But industry was thought to include crafts.
– The High Court says, not.
– - I admit that, and that is why we are altering the law.
– Then the AttorneyGeneral says the High Court is wrong?
– I do not say the High Court is wrong. I say that what this’ Legislature intended was that it should.
– I am dealing with what, the people intended through the Constitution.
– Does the honorable member mean that craft is not connoted by industry in any way?
– I do not say that it is not connoted.
– Does the honorable member say that it is not within the industrial disputes power of the Constitution?
– Again, the question put by the Attorney-General is too vague. It is within the industrial disputes power as an ancillary power. We could have craft organization for some purposes ; but it must be an organization based upon an association in an industry. The moment we go outside of that, as we are doing by the proposed amendment of the definition, we may be going outside the Constitution. In England the association of the men is not regarded as an industry, but is regarded as a trade union - that is, a union in a trade or industry. Hence we find it stated in that report -
The evidence shows that the power and constitution of a trade union have a most important influence upon the character of the relations between employers and employed in an industry.
In other words, the employers, as well as the employes, are in the industry. But if, in the sense now sought to be put upon the word, we can define the men as an industry, it certainly does not fit in with the sense in which the word is used in England. The report refers, also, to demarcation disputes, such as those where, in a trade like shipbuilding, organized bodies of workmen are at issue. Here, may I ask : What is the industry of unskilled labour ? Is not that a test ? Can a collection of unskilled labour be defined under the Constitution as an industry ? What industry can unskilled labour constitute? As we understand it, it is labour which may be applied practically to any industry. The Bill, under the word “ vocation “ proposes to define a grouping of men of that kind as an industry. If it is to be brought under this definition, it must be because it can be defined as an industry under the Constitution. Again, it is said that - the essence of most disputes between employers and employes is, of course, the shares into which the receipts of their undertakings shall be’ divided.
The definition in the New South Wales Act of 1901 is this -
Industry means business, trade, manufacture, calling, or employment in which persons of either sex are employed for hire or reward, and includes the management and working of Government railways.
Similarly the Western Australian Act- of 1900 defines industry as - any business, trade, manufacture, calling, or employment in which workers are employed.
An association of workmen does not in itself constitute an industry, but is an associa-tion of men engaged in an industry.
– Does the honorable member say that we cannot adopt those definitions ? :
– I doubt it.
– It seems to me that the States have dealt with matters in a commonsense way, and that if we cannot do so our powers are very much limited.
– The moment we define in the terms of the State Acts that craft is the basis of organization, we do it for. purposes, not of arbitration, but of legislation.
– Why can the States do it if we cannot do it?
– Because their legislative power extends over the whole industrial, field.
– We ought to have that power.
– I am not dealing with what we ought, or ought not, to have. The State organizations are of employers and employes, and may be co-extensive with all. the unrelated trades and avocations that came within the organization of enginedrivers for the purpose of the dispute which was declared to be outside the purview of our Act. An award applied to all such trades would be legislation, not arbitration. What is done by the State determinations is legislation. The States Courts have been declared by the High Court to be in this respect subordinate legislative bodies.
– Then we can look for the support of the honorable member to an amendment of the Constitution?
– I am not now dealing with questions of policy. The matter is too serious to confuse what can be done with what we ought or ought not to have the power to do. It might be desirable to. have the power to compel all persons within an industry to comply with a certain award, but to take over the whole industrial power attempted to be taken recently is a much wider proposition. Let us see whatwas intended by the Convention in framing the Constitution, and accepted by the people in voting for it.
– The people did not understand the Constitution.
– It is difficult for the people to study thoroughly an instrument of government, and to say what powers are expressed and what may be logically deduced from its provisions. But the people had a broad idea of the meaning of the Constitution, and understood that the States were not giving up the whole of their industrial powers under the guise of allowing the Commonwealth to provide for arbitration. It is these general understandings that cause the success or failure of particular propositions. With a popular referendum there is never an understanding of details, even though honorable members may grasp them. When the subject of industrial disputes was discussed by the Convention, Mr. Higgins proposed to add the sub-clause -
Industrial disputes extending beyond the limits of any one State.
That was in effect, if not in expression, one of the proposed amendments rejected by the people a,t the last referendum. I am not using that objection as conclusive in one way or another. I refer to it simply to show that the framers of the Constitution thought that the words gave over the industrial power to the Commonwealth to a very large extent. That was the reading put on them by Mr. Wise, an authority on the matter, not only because of his reputation as a lawyer, but because of his special knowledge of arbitration subjects, he having then in contemplation the introduction of arbitration legislation into the New South Wales Parliament. Referring to the scope of the amendment, he said -
I rose rather to call attention to another aspect of the case. If the effect of the amendment is really to provide for the possible establishment of a Federal Court of Conciliation, I am at one with the object, but the essential part of the language used in the amendment - I am not criticising casual expressions - indicates a much wider object, which would turn this power into a weapon of very great danger. It would, I think, deprive those concerned in these industrial disputes, whether as masters or employes, of one of their greatest safeguards. There is no matter which the industrial population of Australia would more desire to confine >to the local Parliaments, where they can make their influence upon us felt, than matters affecting industrial disputes. To give the Federal Parliament power to make laws affecting industrial disputes gives them authority to regulate by penalties every detail of the industrial life of every trade in the Colonies.
Mr. McMillan. ; Hear, hear.
– Surely that cannot be desired and intended. There is no matter in which varied local development is more desirable or necessary to a State than the development of its industrial conditions, and the industrial conditions in every part of this continent in years to come may, and probably will, very largely develop.
He, in fact, said that, as drafted, the amendment was not arbitration, that it gave powers which it was inexpedient to hand over to the Commonwealth; powers which the people only recently refused to give. The result was that the proposal of Mr. Higgins was amended, and the words - “Conciliation and arbitration” were added, at the instance of, I think, Mr. Kingston. What we have is, I believe, in intention as well as in expression, the arbitration power, with the limits mentioned in the quotation from Mr. Knoop’s work. The honorable member for Darling Downs has raised points of expediency, as well as of law. For instance, a dispute might be got up by any unassociated body of employes. Whether the dispute were within the meaning of the Constitution or not, they could go before the Registrar, and ask for a certificate. All that can be got at present is the certificate that the dispute seems to extend beyond the limits of one State, but under the Bill the certificate will be that there is a dispute, and that it extends beyond the limits of one State. Then, when they go into Court, they will not have to prove the existence of a dispute, the onus being thrown on the employers of proving that a dispute does not exist. I ask whether the Registrar can so sift the evidence presented to him as to be able to give that certificate. The Bill enables him to decide judicially that there is prima facie evidence of the existence of a dispute, the merits of which should be dealt with by the Court. The amendments of the Constitution suggested by the last Administration would cover some of the acknowledged imperfections in the apportionment of powers between Commonwealth and States, by allowing the Commonwealth to compel the States to appoint Wages Boards in regard to all clearly defined industries. It was our intention to propose to go further, and by the creation of an Inter- State Commission, to reconcile discrepancies between the State awards, or to get over the difficulty pointed out by Mr. Justice Heydon or Mr. Justice Higgins, which might be caused through a tribunal in one State being prevented from raising wages to a fair standard by reason of the low rates prevailing in another State.
– An amendment of the Constitution would have been necessary.
– Or a delegation of power by the State Parliaments. It would have got over difficulties without taking from the States the whole of their industrial powers, and it would have permitted the application of the methods of the State Wages Boards. But we shall get over the difficulty of any discrepancy that may, perhaps, prevent fair competition in trade between the two States. I think I have said sufficient to show that there is, at all events, some doubts as to our power to pass all these provisions under the guise of arbitration; and perhaps it would be wise to recast the Bill so as to bring it within the limits of our power. The criticism of the honorable member for Flinders, which was very clear and convincing, was directed to helping the Government in the difficulties they will find themselves in if they do not clean up their Acts. I have directed my criticism to showing that the Government are assuming a power that, possibly, they cannot obtain by any Act, an assumption which may imperil the whole of our legislation in this regard.
– I am sure we all feel indebted to members of the legal profession on both sides for their contributions to the debate ; but, as a fact, the more we hear them the more confused the position appears to laymen. We were always under the impression that arbitration was for the purpose of the prevention and settlement of disputes; but I am fast coming to the conclusion, if the contentions of honorable members opposite are correct, that it exists in name only - that it will be of po benefit to the industrial workers, or the employers of 1 his country. If this legislation is confined entirely to industrial organization within an industry, it will be impossible, in the state of unionism to-day, when there are craft unions throughout, for those unions to get the benefit. It is evident to me that that must be the position from which we have to view the Act, if the contentions set up are correct. Arbitration was introduced, not only for the purpose of dealing with a dispute after it has arisen, but for the prevention of disputes likely to arise. If the men have no legal right to approach the Court because they belong to a craft union, the Court will fail entirely in settling disputes except in the case of one or two unions which may be described as under a system of industrial unionism. I may be wrong, but I think that the Australian Workers Union is the only complete industrial union i.n existence in Australia.
– What about marine engineers, and such like.
– Marine engineers are practically a craft union.
– They are confined to one industry, and consequently can be dealt with.
– They are confined, to one industry, but there is a doubt whether the Act applies if the men work with different employers, in different parts.
– I do not think there is any doubt.
– I think there is, though one gets confused in ascertaining exactly what the position is. Personally, I believe the day has arrived when there should be industrial unionism, but an industrial unionism not confined to one particular industry. If the employes could see what was best in their own interest, they would organize right throughout Australia in one large industrial body, including every craft, with a view to bettering their condition.
– One union for the whole ?
– Yes ; and I believe that, if it could be brought about in such a way that each particular section could be represented-
– How could a Court deal with a reference from such a union ?
– Such a union would simplify matters considerably. There would be one big case dealing with appeals from each branch, and there would be a decision operating throughout Australia, taking into account the varying conditions. I take it, however, that such an idea is ahead of the times. While unionism has done a good deal for the workers in the past, the organization on the other side is practically getting too strong for present circumstances. I believe the men will have to rest their case on legislation ; and the only way to get effective legislation is by a thorough system of industrial unionism, so that they may make their weight felt through the ballotbox. I may be ahead of the time ; but what I have suggested is coming along. While I hold that view, however, it does not follow that I support legislation to prevent craft unions getting the benefit of the Act.
– The time the honorable member speaks of has come, and he does not seem to be satisfied.
– It has not come. We are here to legislate for conditions as we find them now ; and we are supposed to legislate in order to redress grievances and to prevent strikes and locks-out. tt is not a question of our individual views ; and in that I differ from the honorable member for Cook, who thinks that this Act should now be confined to industrial unionism.
– The honorable member is wrong.
– I .am very pleased to hear it, but that was the impression gathered from the honorable member’s remarks.
– I say that the crafts in an industry should combine together to submit their case ; not that they should, as crafts, be prevented from having organization.
– There is much to be said for that view. But, while we have not the different crafts combined in an industry, it is not fair to say we should not legislate to enable crafts to go to the Court.
– I say that the industry should be the basis for the Court.
– Is the industry of the honorable member for Hunter unified ?
– No, and that is just the trouble. From time to time different claims have been made covering one section only, or what might be called a craft, leaving the others out, so that one part may have industrial trouble, and the other none. If it came to the worst, I suppose the clear section could be asked to fall into line and cease work. If we had industrial unionism, as it ought to be, such a position would not be possible.
– Why not have unionism in the craft alone?
– That is a very pertinent question, which I shall try to answer. Personally, I have advocated that idea, but those concerned do not see eye to eye with me. The day will come, however, when they will see the necessity for closer organization in their own ranks. What is the result in the industry to-day? One section has never been organized.
– One thing prevents it - human nature!
– But the honorable member knows that the unorganized section, which consists of the outside hands on top, receive 6s. 8d. to 7s. a day, while the men who are organized receive 10s. and us. a day.
– I am speaking now of the union of the three districts only, which are all organized separately.
– I mistook the question of the honorable member. I have always advocated ,the union he refers to, and an endeavour was recently made to bring them together,
– It has been effected half-a-dozen times, and as many times dissolved.
– Any one may fail in an effort; and, no doubt, something has arisen to cause the breakage. That, however, is no reason why this union should not be accomplished in the future.
– It has failed because the natural conditions are so dissimilar.
– Mining is one calling, and, consequently, the conditions are somewhat similar. If the contentions of honorable members opposite are correct in regard to this Act, the Commonwealth can do nothing. With the exception of one or two industries, it would be impossible to regulate any dispute. As to the enginedrivers, it may be asked why they do not try the State tribunals. But they have been trying the Wages Boards for over twelve months.
– For three years.
– And without getting any satisfaction. Then, when they go to the Arbitration Court, they are told by the High Court that there is no jurisdiction. If men cannot get redress for their industrial grievances, we must expect strikes. We cannot expect men to be loyal to an Act of Parliament if it does not provide proper facilities for redressing grievances; and it is unfair to expect it of them. We provided that before trouble arises the parties should approach the Judge in friendly conference; but what is the use of that if the High Court holds that there is no jurisdiction? It only means that the men have wasted their time and money, and have no hope of a satisfactory award. The honorable member for Darling Downs, with whose arguments I was somewhat impressed, contends that the proposed amendment is’ unconstitutional, inasmuch as it takes away the right of a writ of prohibition or mandamus. The honorable member may be right ; I shall not venture my opinion against his in a legal matter. If he is correct, however, the Act is of no use to us. We passed an Arbitration Act with the object of obtaining a decision from the point of view of equity and good conscience. On questions of law, there is appeal ; but unionists never for a moment expected that there would be any appeal on the merits. If the amendment is unconstitutional, the unions are going to be mulcted in unnecessary expense; for what is the use of obtaining a decision when there is all the probability of its being upset by the High Court? I hardly think, however, that the contentions of honorable members opposite are correct; but if they are the sooner we let the public know that the Federal Parliament cannot deal with industrial powers the better - the sooner we ask the public to give us enlarged powers the better it will be. Let us cease to play with the question.
– And do not forget to tell the people, at the same time, that there are powers within the States that can help them. .
– The public were recently very well informed on that point by the honorable member and others. Nevertheless, there is a large section who desire -the Federal Parliament to have power to deal with such matters.
– Two tries for the same money !
– It would be better to have two Courts to appeal to, if that would be the means of preventing great industrial upheavals. If we are going to ask industrial bodies to resort to arbitration, we should give them every facility to approach the Court, and some assurance that there will not be endless appeals involving great expense and probably the upsetting of an award. The honorable member for Parkes said that the claim made when the first compulsory Arbitration Bill was introduced in the New South Wales Parliament was that it would do away with all strikes. I think he will admit, however, that Mr. Wise; in introducing that Bill, clearly pointed out that all that could be hoped was that the passing of such legislation would reduce the number of strikes. That is the position I have taken up from the outset. I have always said that we can never hope to wholly abolish strikes, nor can we hope to’ prevent locks-out in their entirety ‘; but we can legislate . to enable the parties to a dispute to bring their case before a Court with a view to a settlement being arrived at. Mr. Joseph Cook.- Under this craft unionism, a bigger strike could be secured.
– I think not. The position of the engine-drivers who are members of a craft union is a case in point. They have been fighting from Court to Court to secure an award, and, although they could have struck at any time, they did not do so. Every inducement was really held out to the men to say, “ We have been trying to get satisfaction for months, and we shall now discontinue work until we can obtain a settlement.”
– They could not strike; there are not enough of them.
– The engine-drivers are more essential to the industry in which they are employed than are any others engaged in it Let them’ cease work, and there must be a total stoppage of operations. Engine-drivers must have certificates of competency.
– In the case of a general strike, the honorable member’s contention would be correct.
– There was nothing to prevent the engine-drivers striking had they desired to do so, and.it redounds to their credit that they did not. They . resorted, instead, to a constitutional method of obtaining a settlement of their trouble. But if we cannot give the workers outside some better method of obtaining redress than is now available, we can look for nothing else but trouble. I desire to be perfectly candid, and I say at once that if we cannot obtain a better system of arbitration than we have at present, then I, for one, shall very shortly go against it. I have almost arrived at that point. I have spoken and fought- for arbitration for many years, but if I find that arbitration, as it exists, is not satisfactory, that we have no power to make it satisfactory, and that the people refuse to give us that power, then I shall say that the workers should have the utmost freedom to do as they please.It is a shame to pass industrial laws, under which certain individuals might probably be placed in gaol, without giving the workers any proper means of redress. Unlike the. honorable member for Parkes, I do not think that certain men, owing to certain industrial happenings, should have suffered heavy penalties because of their position as leaders. Whilst I want to respect the law, I know the men to whom the honorable member referred, and, having been associated with them, I ‘can honestly say that they are as good as any man in this Chamber. Whenever I hear of one of these men being sentenced, my heart goes out to him. I am sorry for these occurrences, and feel that we should endeavour to give those engaged in industry some satisfactory means of settling their grievances other than that of resorting to a strike. The honorable member for Parkes went further, and said that nearly every industrial dispute was really a strike. If he will carefully examine the definition of “ lock-out,” and then call to mind the facts in relation to only one industry - that of mining - he will be ready to admit, I am sure, that in a great many cases locks-out, and not strikes, have occurred. Let me give one illustration. I remember a case going to the Arbitration Court regarding the position of coal miners, who were paid by the yard, and who, it was said, should be paid on a tonnage rate. I am referring to the men of the Northern Extended and Gartlee collieries. The Court decided that they should be paid on the tonnage rate, and, in order to ascertain what the tonnage rate ought to be, there had to be an ascertainment of the selling price of coal. That ascertainment was made, and the men were awarded the ridiculously low rate of rs. 1 id. per ton. They were disinclined to accept that award, and for the moment cried a halt. The honorable member for Parkes says that he did not hear of one Labour leader condemning their action. But what are the true facts? The union officers went to the men and said, ‘ ‘ Here is an award of the Court, and, although it is very unsatisfactory, you must accept it. We advise you to go back to your work, and we will make application to have it revised.” The men returned to work, but it was not long before machines were introduced, and the whole system changed, notwithstanding that the award was to run for three years.
– Would the honorable member deny the employers the liberty to use machines ?
– No j but in such circumstances, had I been an employer, I should have said, “ Here is an award of the Court, which is to run for three years, and, since we propose to introduce machines, it is only fair that we, as employers, should say that the award ought to be varied, inasmuch as we are going to introduce a new system.” Had that stand been taken up, the Court would have varied the award and altered the condition of payment. The employers, however, did not take up that attitude. They simply put in the machines, and broke the ‘award.
– They did not break the award j they simply carried on under different conditions.
– The award was made for three years. If the honorable member is going to encourage that sort of thing, the workmen will always be striking.
– Is it the honorable member’s experience that workmen always observe the awards of the Court?
– In that case the men could have applied to the Court for a variation of the award.
– Why should they have done so?
– My recollection is that we had waited no less than three years to get our case before the Court, so that, in the circumstances, an appeal was out of the question. In an adjoining colliery - the Pacific - 2s. 6£d. per ton was being paid, but, because of this award, which really had no relation to’ it, the rate was also reduced in that colliery to is. nd. The men would not accept that reduction. The employers replied, “ The mine is open, and you can go on if you like “ : but they declined to do so.
– The honorable member is taking his best case, and it does not prove his contention.
– I could cite other cases if time would permit of my doing so. The honorable member may accept my assurance, however, that my statement of the facts is correct. The result of this action was that that mine was idle for months, and the newspapers described the situation as a strike. Such a condition of affairs must be rectified by legislation. The honorable member for Parkes was hardly fair in his reference to the men in the Newcastle district. He also said that the rural workers in New South Wales intended to deprive a man of the right to employ his family on his own farm. I have looked through the claim in the Gazette, but can find nothing bearing on the point, save a paragraph showing that they are opposed to children working on farms during school hours. After all, the Education Acts of some of the States declare that to be illegal. I am going to put my faith in the Attorney-General and his advisers. I am not going to argue the legal aspects of this question, but if during this debate any arguments are, or have been, advanced to cast a doubt upon the position, I trust that the Attorney-General and the officers of his Department will take them into serious consideration, with a view of so amending the Bill as to prevent decisions under it being upset on appeal to the (High Court. “Mr. ATKINSON (Wilmot) [3-26]– Sufficient has been said by honorable members on both sides of the House to show that this is not the trifling measure that a casual visitor to the House listening to the Attorney-General’s opening speech might have imagined it to be. I should like to say, in passing, that we are all glad to see the Attorney-General in his place once more, and that I feel sure it was only because of the indifferent state of his health that he did not give us a fuller explanation of this measure. The Bill is a very important one, because it purports to make material changes in the system of arbitration as hitherto followed in the Commonwealth. The honorable member for Gippsland made an interjection a little while ago, in which he seemed to charge the Opposition with a desire to defeat the Bill. There is no such desire on our part. If we wished to defeat it, we should either vote against the motion for the “second reading, or move an amendment that it be read a second time this day six months. Our desire in submitting the amendment was to secure from the House an expression of opinion such as would enable us in Committee to bring the Bill into line with the original scheme of arbitration. The great change proposed to be effected by this Bill relates to the definition of the word “ industry.” A very definite meaning was given to that word, as used in the original Act, in the Engine-drivers’ case. In that case, the Court made it clear that “industry” meant, not a handicraft or individual vocation, but some collective enterprise in which employers and employes are engaged. It contemplates a relationship between the persons engaged in what are known, in the broad sense, as industries, such as mining, soap and candle making, tanning, and so forth. That is in contradistinction to an avocation or handicraft such as carpentering or engine-driving. The change is attempted to be brought about by clauses 2 and 3, which constitute an attempt to get round the decision of the High Court by permitting any number of people who earn their living by the same handicraft to unite and become registered as an organ ization under the Act. We have been told by those in this House who can speak with authority that the Bill will probably prove to be unconstitutional. I think they are right ; but even if it is not unconstitutional it will probably prove very inconsistent with the existing Act in many cases when it comes before the Court for decision. We are only amending the meaning of the word “ industry “ in certain sections of that Act. There are other sections in which it still retains its original meaning. Consequently, when the Court has to read the original Act and this Bill together, it will be found that a conflict of meaning exists. That will cause great difficulty, and that is why the honorable member for Flinders advised the Government to recast the whole of this legislation if they wished to achieve their purpose. It is a serious matter for this House to send out a measure which will bear such a peculiar appearance when the Courts have to interpret it. I hope that, in Committee, the Government will be amenable to reason, and allow the Opposition to assist them to make the measure consistent with the original Act. What are likely to be the results if this great change is allowed to come about? We shall, in the first place, create something like a revolution in our system of arbitration, by changing the whole basis of the original Act. We shall have substituted for a collective system what may be called a craft system, and when it is put into practical operation we shall find that we have departed a long way from the original intention of the Act. This Bill does not attempt in so many words to nullify the provision that the Arbitration Court is to deal only with disputes extending beyond the limits of any one State. In fact, it retains those very words ; but its real effect is to repeal them. Mr. Kingston, who was the prime mover in our arbitration legislation, wanted to create a tribunal to grapple with those big disputes that defied the powers of any State Court to settle, because they extended beyond the limits of the State. In effect we are going to eliminate that limitation by allowing organizations of people who earn their living by the same sort of work, such as carpenters, to be registered under the Act. That means the creation of craft organizations extending from one end of the continent to the other, and, therefore, it will be possible to claim that almost every dispute extends beyond the limits of one State. That was not intended or contemplated when our scheme of arbitration was first introduced. To a certain extent, therefore, this Bill achieves what could have been done if the late referenda had been carried. It will throw so much work on to the Federal Arbitration Court that the Court will be quite unable to cope with it. During the referenda campaign I and other honorable members made a strong point of retaining as far as possible local matters for the decision of local tribunals in the light of local knowledge. In a continent so vast as Australia, with such varying climatic and other conditions, it seems an impossibility for any one Court to make an award that will meet the case fairly all over the Commonwealth. It is like seme one sitting in London regulating the conditions of labour in Russia. Fancy one Court settling the wages for all the gold miners throughout Australia ! Wages and conditions that may be good in Bendigo would not in any way compensate a gold miner in Kalgoorlie. There the miners are paid about ^4 a week, but I suppose £2 15s. a week is all that would be earned by men in the same grade of work in Bendigo.
– The honorable member is assuming that the Court will prescribe a uniform wage.
– The tendency of one Court dealing with industries throughout Australia must be to gradually attempt to make the wages as uniform as possible. It would be futile for one Court to attempt any such gigantic task. I wish to keep our local tribunals as strong and capable of dealing with matters that are fairly within the States as possible. That is the best for the industry and all engaged in it, and for the community generally. No one who takes an impartial view of industrial matters can deny that the Wages Boards are far and away the most effective means yet devised for dealing with these troubles.
– The employers can sack the men concerned in Wages Boards, can they not?
– If that happens, it is easy to improve the conditions, as no one pretends that the Wages Boards are perfect. Their results show, however, that they have been a far more effective means than anything yet devised in the shape of Arbitration Courts. The New South Wales Arbitration Court broke down because it could not contend with the business of one State.
– The High Court decisions broke the Act down.
– The Court became very congested with work. Matters were listed that would probably not have been heard for two 5’ears. In New Zealand, which has had arbitration longer than Australia has, the whole Parliament, judging by a debate that has lately taken place, is satisfied that some radical change will have to be made, as the Arbitration Act has failed to meet present conditions. In that debate, many members recommended the introduction of a Wages Board system.
– In New South W ales, the Labour Government do not propose to wipe our Wages Boards and reestablish the Arbitration Court.
– My point is that when this Bill comes into operation the work of the Court will become too great. Even if the Court can cope with it, it is better to leave local matters to local tribunals composed of people on the spot, with a better knowledge of local conditions. The Prime Minister said the other night that the States could and still would have their tribunals. That is so; but it must be remembered that the people of Australia will not consent to pay two agents to do the one piece of work for them. These Courts are expensive enough, and no State would be prepared to keep up its Wages Boards if the more expensive Federal Court sat side by side with them and perhaps overruled- them. It is farcical to compare an Arbitration Court with Wages Boards. In nine cases out of ten the business in hand is the arrangement of fair conditions and proper rates of pay for an industry ; and it is absurd to expect, a Judge who has no practical knowledge, and must be guided wholly by evidence, to understand the position as well as a Board of experts. Wages Boards deal with matters more quickly., effectively, and cheaply, than an Arbitration Court.
– This is an indirect attempt to get a common rule.
– That is so. I would point out to the Government that the Bill, apparently, would allow any 100 persons to register as an organization. That probably is not intended. We cannot look at this proposal wholly from the employes’ side, being here to pass laws for the whole community. The original Act considers the two parties to an industrial dispute and the interest of the public. Very often the general community is as much affected by an industrial struggle as the actual participants. The Bill puts employers in a worse position than they occupy now. Under it all the carpenters, or all the engine-drivers, in Australia might form themselves into an organization, and be registered; but how could the employers band together? Under the principal Act, as at present, an employer knows how his industry is affected by any award, because it applies to all the different classes of workmen in his employ. But under the Bill an award may be given regarding engine-drivers generally, or carpenters, and a soap and candle manufacturer would have to ascertain, not what awards had been made regarding his industry, but what awards had been made regarding every class of workmen which he employed.
– He has to do that where Wages Boards exist.
– But a Wages Board award does not apply from the Gulf of Carpentaria to Port Phillip.
– The Wages Board awards cover small areas. Very properly, the control of local conditions is in the 1 lands of those who understand them. Under the Bill one man would regulate the conditions for the whole continent. I am glad that no heat has been imported into the debate, because the subject is one affecting the interests of all parties. Speakers sometimes make it appear that the Labour party represent one section and their opponents another section of the community; but I take it that when this Government puts forward a policy, it does so to benefit, not a section of, but the whole people. Every one is of opinion that industries should pay the highest wages possible; but the rates of wages must not be so high as to kill the industry which is required to pay them. Credit is not always given to us on this side of the House for the view I have expressed. But the Federal Parliament, or any section of it, has never advocated anything in the shape of sweating or low wages ; and I hope we never shall. The best plan, I think, is to leave the question of local conditions to the people with the most local knowledge. If a man at the Gulf of Carpentaria is receiving 15s. a day, is that any reason why an industry in Victoria, where the conditions of life are so much superior, should be saddled with a similar. wage?
– Who is asking that?
– I do not say that anybody is. But why should a Victorian industry, which can afford no more than 12s. a day, be exposed to the danger of extinction? What we desire is not unemployment, but employment, with a fair share to all. This is a most .difficult question to settle with justice to every person interested ; but, in my opinion, the best system yet devised, though it is not perfect, is the Wages Board system. One of my serious objections to the measure before us is that it will practically nullify the Wages Boards which have done so well in the past. The Arbitration Act has not come up to expectations, and that it has not been an unqualified success is seen in the industrial unrest. It would not be right, however, to say that the Act has been a failure because of the strikes that have taken place, seeing that there might have been more strikes if there had been no Act. The industrial unrest shows us that, at any rate, we have not obtained the objects we set out to obtain, and we are now asked to make a revolutionary change, with no prospect of improving the conditions. I hope that, in Committee, the Attorney-General may be induced to accept some amendments at least, seeing that the amending Bill, as it stands, would prove inconsistent with the original measure when the two are construed together. I confidently believe that the Opposition will be able to supply the Attorney-General with some very useful material, if he will condescend to accept it.
Debate (on motion by Mr. Howe) adjourned.
Message received from the Senate, asking the concurrence of the House of Representatives in the following resolution: -
That, in the opinion of the Senate, all Government establishments for the manufacture or supply of goods for the Federal Public Service should (when practicable) be located in the Federal Capital Territory.
Motion (by Mr. Howe) proposed -
That the consideration of the message be made an Order of the Day for 16th November.
– Sometimes motions of the kind are moved in both Houses; but it is quite a common occurrence for one
House to send a resolution to the other asking for its concurrence.
– I have never known a private member take charge of a message between the two Houses.
– It was a private member’s motion in another place, and it was competent for the mover to arrange to have it dealt with in any way he thinks proper.
Question resolved in the affirmative.
Mr. KING O’MALLEY laid upon the table the following papers : -
Railways - The Gauges of Australia and their Unification - Review by the Consulting Railway Engineer (H. Deane) - 17th October, 1911.
Lands Acquisition Act - Land acquired under, at Dunedoo, New South Wales - Foi Commonwealth purposes.
Bill received from the Senate, and (on motion by Mr. Fisher) read a first time. House adjourned at 4.4 p.m.
Cite as: Australia, House of Representatives, Debates, 20 October 1911, viewed 22 October 2017, <http://historichansard.net/hofreps/1911/19111020_reps_4_61/>.