12th Parliament · 1st Session
Mr. Speaker (Hon. Norman Makin) took the chair at 2.30 p.m., and offered prayers.
– Is the Prime Minister yet in possession of the agenda of the forthcoming Imperial Conference? If so, will he make it available to the House, and does he propose to make a statement upon it before his departure for London?
– I have been advised of only some of the subjects to be discussed at the conference. As soon as I receive the complete agenda I shall make it known to honorable members, and I hope that I may have an opportunity to address the House on the subject.
– Will the PostmasterGeneral inform the House of the latest developments in regard to the proposed dismissal of 100 linesmen in Victoria ?
– Since questions on this subject were asked yesterday, I have ascertained thatbecause of the completion of certain works the services of 92 men were to he dispensed with; but on further consideration, the department has been able to place 89 of them on the line from Beaconsfield toWarragul. Of the 58 remaining, 25 will be placed in country centres, leaving 28, whom the department will continue in employment for a week or two pending inquiries as to whether they too can be placed. We cannot guarantee to continue to employ all of them after works have been completed and the funds available have been exhausted; but we shall do everything possible to retain their services.
– Does that apply to other States also?
Mr.LYONS.- Yes; but I remind honorable members that when city works are completed the men engaged on them cannot be transferred to new works in country districts in which men are unemployed. I give the House the assurance of the department that, in connexion with dismissals, as with appointments, the principle of preference to returned soldiers will be observed.
– Has the Prime Minister read the newspaper report of a statement by Dr. A. Nicholson, Australian Delegate to the Imperial Entomological Conference, at which 25 countries of the Empire were represented, that the cactoblastis will at the present rate of progress exterminate the prickly pear in great areas of Queensland within three years?
– I have not read the statement, but the reports I have seen indicate that the cactoblastis is proving effective, and I hope that Dr. Nicholson’s prophecy will be fulfilled.
– Will the AttorneyGeneral inform the House what is the practice or rule in regard to precedence in hearing applications and other matters by the Arbitration Court?
– I understand that in the arbitration jurisdiction, as in other courts, theold maxim applies “ First come, first served.” Subject to adjournments and other delays, cases are dealt with usually in the order in which they were listed or initiated.
– Is the AttorneyGeneral aware that a summons to vary the award of the court in respect of the
New South Wales branch of the Australian Tramways Union, issued last week, is set down for hearing to-morrow, taking priority over a large number of applications for variation, some of which have been on the list for not less than twelve months? What is the reason for the preferential treatment accorded by the court to the Railway Commissioners of New South Wales?
– I am surprised if precedence is being given to any parti cular case unless for special and urgent reasons. I am not acquainted with the facts, but as the procedure mentioned by the honorable member seems extraordinary, I shall make inquiries from the Registrar and let the House know the result.
– Has the Prime Minister seen in to-day’s issue of the News Pictorial, of Sydney, the following report: -
NOT TO THE GOVERNMENT’S TASTE. .
Reporton Australian Tobacco Industry. (From our Special Representative.)
There is no likelihood of the Government accepting the recommendations of the Select Committee on Tobacco made to-day.
Has the Prime Minister made any statement to the press on this subject; if not has this journal any authority for the report I have quoted?
– As I have not yet read the select committee’s report, obviously, I could not have said anything to warrant the publication of such a statement.
– Will the Minister for Defence issue instructions that greatcoats be included in the equipment of senior cadets as well as the Militia?
– I am prepared to give favorable consideration to the proposal.
– I ask the Assistant Minister for Trade and Customs (1) What influenced the Government in its recent decision not to provide adequate protection of the Queensland timber industry against imported Oregon ?
– The Queensland timber interests were represented at the conference convened in Melbourne by the Tariff Board. The Tariff Board submitted its report, and the Government acted on it. The report will be made available in the near future. Any further representations that might be made on behalf of the timber interests will receive sympathetic consideration.
Dismissal of Staff
– Has the Minister for Markets yet completed his inquiry into the dismissal of members of the staff of the War Service Homes Department with a view to ensuring that no returned soldiers are adversely affected?
– Some delay has been occasioned in carrying out arrangements for certain retrenchments which in the ordinary course of events were to take place in the War Service Homes Department, and this has been responsible for my not having previously answered the representations which the honorable member made to me on several occasions. I have gone closely into the matter, and have been able to make arrangements whereby no returned soldier will be adversely affected by the retrenchments.
– In view of the fact that applications for war service homes have not been entertained by the department for some months owing to lack of funds, will the Minister for Markets inform me whether, when fresh funds become available, prior consideration will be given to those applications which have been held over?
– In all cases consideration is given in their order of priority to those applications which have been longest outstanding. Every case is dealt with entirely on its merits.
– Will the Prime Minister inform honorable members when the consul representing the Russian Soviet Republic will arrive in Australia? Does he propose to accede to the request of the Trade and Labour Council to declare that day a public holiday?
– I have no official information as to when the consul is coming, or even who has been appointed. I have received no request from anybody to declare the day of his arrival a public holiday.
– The Prime Minister might also state when Sir Otto Niemeyer will arrive in Australia, and whether on that occasion flags will be flown and the Song of Australia sung.
– Recently Parliament passed a bill increasing the bounty on galvanized iron from £2 12s. to £4 10s. a ton. It is now proposed to increase the duty-
– Order ! It is not permissible to anticipate debate on any subject which is to come before the House; but if the honorable member’s intention is to elicit information upon the business before the House, or pending, his question will be in order.
– Has the Prime Minister made any arrangement for reducing the bounty on galvanized iron by £2 a ton if the tariff is increased by that amount ?
– The bounty to be paid will be automatically reduced by the amount the duty is increased.
– Will the Prime Minister state whether the Government has yet decided upon a fitting recognition of the recent achievement of KingsfordSmith in flying across the Atlantic Ocean from east to west?
– The Government is looking into the matter, and proposes to send to Squadron-Leader Kingsford Smith the following cablegram : -
Government has decided in recognition of your further wonderful outstanding achievement in crossing the Atlantic to promote you to honorary rank of Wing-Commander in the Air Forces of this country.
– According to a paragraph published in this morning’s press 40 houses are unoccupied in Canberra, and are being kept empty pending the transfer of officers at present in Sydney and Melbourne. In view of the fact that the Government cannot afford to suffer any avoidable loss of revenue, will the Minister for Home Affairs state when it is proposed to effect the transfer ?
– Arrangements in connexion with the removal of the Patents and Copyright branches are proceeding, but it will probably be two months before it can be completed. In the meantime, some cottages are being reserved for the officers who will come to Canberra.
Allegations of Bribery Against
– Will the AttorneyGeneral state whether it has been decided to re-open the inquiry by the Royal Commissioner, Judge Dethridge, into the bribery allegations of the honorable member for Richmond (Mr. R. Green) in connexion with the claim of the broadr casting companies heard before the Joint Committee of Public Accounts?
– It is proposed to ask the commissioner to sit again to hear additional evidence. This has been decided upon as the result of inquiries partly at the instance of the commissioner himself, and partly for reasons which were thought proper in the circumstances. Honorable members will be informed later of the precise date upon which the inquiry will be re-opened.
– Some time ago the Minister for Markets said that in his opinion there was little probability that the Government of South Australia would not become a party to the compulsory wheat pooling arrangement. In last Saturday’s Advertiser, the Premier of South Australia, Mr. Hill, is reported to have commented upon the Minister’s statement as follows -
The only thing I have to say in reply to Mr. Parker Moloney is that it is all a question of finance. However much we may wish to go on with the scheme, it will be impossible to do so if finances will not permit.
Has the Minister received any request to modify the wheat pool scheme, so that it may work less unfairly in respect of the smaller States?
– I have heard nothing official from the Premier of South Australia since his Government communicated with me through its Minister for Agriculture, stating that preparations were being made for holding a ballot of wheat-growers. The South Australian Government was represented at the last wheat conference held in Canberra, and at that time there was nothing to indicate that trouble was likely to develop in South Australia, nor have I received any intimation to that effect since.
Manufacture in Australia.
– For some considerable time, in view of its importance to South Australia, I have been interesting myself in the olive-growers and manufacturers of olive oil in Australia. Some time ago the then Acting Minister for Trade and Customs (Mr. Forde) promised that the matter would be referred to the Tariff Board. Will the Minister for Trade and Customs now, in the interests of olive-growers, endeavour to have the report of the board expedited, so that action maybe taken which will have the effect of reducing considerably the importations of olive oil from overseas?
– This matter has been referred to the Tariff Board. So soon as its report has been received, appropriate action will be taken.
– I desire to make a personal explanation. My attention has been called to an article that appeared in the Sydney Labor Daily of Tuesday of last week. This article purports inter alia, to give the facts in regard to the severance of my connexion with the Australian party. In case any of my fellow members may have read the article, I desire to say that its references to me are absolutely and grotesquely untrue.
– In view of the near approach of the 4th July, and having in mind the advisability and desirability of the English-speaking peoples being brought more closely together, will the Prime Minister forward a felicitous message to the President of the United States of America ?
– The suggestion of the honorable member will be borne in mind.
asked the Minister for Trade and Customs, upon notice -
What commodities were exported from Australia to the Philippine Islands in the years 1927-23 and 1928-29, and what were the quantities and value of each of such commodities?
– The details of exports to the Philippine Islands from 1924-25 to 1928-29 are contained in a very convenient form on page 791 of the Overseas Trade, Bulletin No. 26. A copy of the page containing this information will be handed to the honorable member.
asked the Treasurer, upon notice -
– The answers to the honorable member’s questions are as follow : -
asked the AttorneyGeneral, upon notice -
Whether he has modified, and, if so, in what manner, the policy of preference to returned soldiers as previously applied in his department with reference to the allocation of briefs to counsel?
– The only modification is that, in the allotment of briefs in minor cases, barristers who, at the termination of the war, were under military age are not excluded from consideration.
asked the Prime Minister, upon notice -
– I will look into the matter and furnish a reply to the honorable member’s question as soon as possible.
asked the Minister for Defence, upon notice -
– The answers to the honorable member’s questions are as follow : -
Disposal of Cable Drums
asked the PostmasterGeneral, upon notice -
– The answers to the honorable member’s questions are as follow : -
Conditions of Sale
asked the Treasurer, upon notice -
– The answers to the honorable member’s questions are as follow : -
asked the Treasurer, upon notice -
– The answers to the honorable member’s questions are as follow : -
asked the Minister for Trade and Customs, upon notice -
Whether he will make available information as regards -
The quantities and values of Oregon imported free for use underground for mining purposes as prescribed by departmental by-laws during each of the last five years?
The quantities and values of Oregon (12 inches x 6 inches and over) other than those referred to in (a) imported during each of the last five years?
– The answers to the honorable member’s questions are as follow : -
asked the Assistant Minister (Mr. Forde), upon notice -
– The answers to the honorable member’s questions are as follow : -
asked the Minister for Markets and Transport, upon notice -
– The answers to the honorable member’s questions are as follow : -
– On the 11th June, the honorable member for Melbourne (Dr. Maloney) asked me the following’ questions, upon notice -
Inquiries into the matter were instituted through the Council for Scientific and Industrial Research, which has been in communication with the Queensland Bureau of Sugar Experiment Stations, and upon the information obtained, I am now in a position to make the following replies : -
– On 28th May the honorable member for Martin (Mr. Eldridge) asked the Attorney- General the following question : -
Willhe inform the House how many bankruptcies have occurred in Australia for each month from July, 1920, to date, and the occupations and total amounts involved.
The information as to the various bankruptcy districts, excluding the District of Western Australia, was then given, and I promised to supply the figures as to that district later. I am now in a position to inform the honorable member that the number of bankruptcies and the total amount of assets and liabilities for the District of Western Australia for each month from August, 1929, to May, 1930, are as follows: -
In committee (Consideration resumed from 1st July, vide page 3501) :
Clause 7 -
Section eighteen a of the Principal Act is amended by omitting from sub-section (4.) the words “ to make an award - “ and paragraphs (a) and (b), and inserting in their stead the words -
increasing the standard hours of work in any industry; or
reducing the basic wage or altering the principles on which it is computed.
Section proposed to be amended - 18a- (4.) Notwithstanding anything contained in this act, the court shall not have jurisdiction to make an award -
increasing the standard hours of
reducing the standard hours of work in any industry to less than fortyeight hours per week, or, where the standard hours of work in any industry are less than forty-eight hours per week reducing the standard hours of work in that industry,
.- This clause proposes to make a farreaching change in the existing law. At present the act provides that the Arbitration Court shall not have jurisdiction to make an award increasing or reducing the standard hours of work in the manner set out in section 18a unless the question is heard by the chief judge and not less than two other judges, and the proposed increase or reduction is approved by a majority of those judges. Therefore the existing legislation provides that three judges must determine any question of an increase or a decrease of standard hours. It is now proposed that to consider an increase, but not a decrease, of standard hours there must be three judges. In other words, a single judge or a single conciliation commissioner might reduce the standard hours, but it would require three judges to sit in order to increase them. This provision extends also to the basic wage, and it is proposed that before the basic wage can be reduced, three judges must hear the case, although a single judge or a single conciliation commissioner may increase the basic wage. An increase of the basic wage is of profound importance to the community ; so also is a decrease of the basic wage. This provision, however, is framed entirely to suit the worker, and does not take into account the fact that he is, in the long run, greatly affected by any reduction of hours or increase of the basic wage which turns out to be unwise. I, therefore, ask the Attorney-General to agree that this provision shall apply to both increases and reductions of hours or of the basic wage. That is obviously just.
Let me point out what may happen under this clause. There may be an application for an increase of the standard hours worked in some particular industry, or for a reduction of the basic wage. That application must be heard by three judges. Those judges solemnly sit and increase the hours or reduce the wages.
The next day, under this bill, an application might be made to a conciliation commissioner who could vary the award in the opposite direction. Although three judges had increased the hours, a single conciliation commissioner could reduce them: There is to be no appeal from the decision of the conciliation commissioner. In the same way, three judges sitting together might determine that it was wise to reduce the basic wage in an industry. In that case, there could immediately be an application to a conciliation commissioner, who could vary the award and reverse the decision of the three judges. There is in the bill no provision binding a conciliation commissioner by the decision of the three judges. When a court is constituted of a number of judges, and when provision is made for the full court, or a number of judges, to sit together to determine certain questions - that being in accord with perfectly well established principles of procedure - the decision of the full court or of a number of judges is followed by any single judge sitting in the same jurisdiction. There is no provision that that must be done, by conciliation commissioners. Indeed it is provided in a later clause that a conciliation commissioner may exercise any of his powers upon his own motion as well as upon an application by a party to industry. Accordingly there is before us the serious prospect of the whole system of arbitration being thrown into chaos if this provision is adopted unchanged.
I have mentioned two objections to the clause. First, that it ought to apply to a reduction as well as to an increase of hours and also to an increase as well as to a reduction of the basic wage; and, secondly, that a conciliation commissioner would be able, in effect, to reverse the decision of three judges or a majority of them by varying an award in a direction contrary to that decision. A conciliation commissioner might well take the view that he has been appointed to exercise his judgment and discretion, and that there is nothing in the act binding him to the decision of the three judges.
There are further objections to this provision. Paragraph .i b provides that the court ‘'’shall not have jurisdiction to make an’ award altering the principles on which the basic wage is computed. That appears to me to be a dangerous provision because of its vagueness. We are able to determine the intention of an award by looking at it; an award speaks for itself by fixing a particular wage for particular work. An award does not, in itself, contain any reference to principles at all. It. merely states the decision resulting from the reasoning of the court that gives itHow then is it to be discovered whether an award alters the principles on which the basic wage is computed? It is clearthat that cannot be discovered by looking, at an award. It can be discovered only by looking at the reasons for judgment,, as they are generally called by lawyers. Sometimes those reasons are given fully and sometimes in a short and summarized form. It appears to me that this vague phrase opens the way to endless disputesand trouble. I can quite understand the other part of the provision, and, I think,, that probably it is wise to require reductions and, I suggest,, increases of the basicwage to be determined by a special tribunal.
As honorable members are aware, the cost of living is taken into account in fixing the basic wage. At times the cost, of living figures have been based upon returns obtained from the capital cities; at one time a twenty-town basis was used and sometimes a five-town basis was adopted. I do not know what basis the court uses to-day. It is quite plain that the result obtained from taking the capital, cities basis may be very different from the result obtained from taking the country towns basis. Are we to understand that an alteration of an award by the adoption of a different basis in a particular case will be considered an alteration of the principles of of computation? If an award in a particular industry is varied by the adoption of a different basis it may be argued with some force that the principles have been altered. Many other cases of doubt could be suggested. In all the circumstances I consider that the introduction of the words, “ or altering the principleson which ‘it is computed” can only lead to controversy and uncertainty and I, therefore, hope that they will be deleted.
I also suggest that paragraph 2 of the proposed new sub-section 4 is likely to lead to trouble. It provides that the court shall not have jurisdiction -
To vary, or give an interpretation of, an award where the variation or interpretation would result in any such increase, reduction or alteration - unless the question is heard by the Chief Judge and not less than two other judges, and the increase or reduction, as the case may be, is approved by a majority of the members of the court by whom the question is heard.
Section 18aa of the act, which deals with interpretations affecting standard hours, provides that -
Notwithstanding anything contained in this act, where -
an interpretation is given of any term of an award which interpretation declares that the standard hours of work fixed by the award in an industry or in a section of an industry are more or less than those theretofore in fact observed in that industry or section as being the standard hours of work fixed by that award; or
) a variation of an award is made affecting the standard hours of work fixed by that award in an industry or in a section of an industry, the interpretation or variation shall have no force or effect unless it is considered by the court constituted by the Chief Judge and not less than two other judges and is approved by a majority of the members of the court.
Does the Attorney-General think itis desirable to repeat in the amendment that we are now considering practically the same provision, though in other words, that appears in the section which I have just quoted?
– I appreciate that point and I propose to correct it.
– I shall await with interest the definite proposal of the Attorney-General. In order to determine my first point 1 move -
That after the word “ increasing “ proposed new paragraph a, the words “ or reducing “ be inserted.
If that amendment is agreed to I shall move for the insertion of the words “ or increasing “ after the word “ reducing” in paragraph i b. The effect would be that three judges must determine any applications for either an increase or a reduction of standard hours or the basic wage.
– We are now dealing with one of the most important clauses in the bill. Questions relating to hours of work and rates of wages have caused more disputes and discontent than any others in our industrial life. I differ from the view of the Leader of the Opposition (Mr. Latham) that three judges should be the final authority to determine these great issues. We should obtain more satisfactory results if we vested the authority in one judge and two assessors.
– There has been a provision of that kind in the act for many years, but it has never been used.
– Questions relating to hours of work and the basic wage should be determined by men with practical knowledge of the industries under consideration. At present the judges determine these matters entirely on the evidence placed before a court; but if it were provided that a judge and two persons representative of the employers and employees respectively should be the deciding authority we should obtain better results, for the parties to disputes would have greater confidence in the tribunal. If a bench of three judges increased the hours of labour or reduced the basic wage a great deal of irritation would undoubtedly be caused ; but if such alterations were made by a judge, assisted by two assessors, a minimum of dissatisfaction would occur. I ask the AttorneyGeneral to consider whether it would not be possible to provide that this jurisdiction should be exercisedby a judge and two of the conciliation commissioners to be appointed under the act.
– Will the conciliation commissioners be representative of’ both parties ?
– If an alteration is made it would be preferable to provide that two assessors should assist the judge.
– Judges are trained in an entirely different school from that in which employers and employees are trained. The representatives of the employers and employees would be able to bring to bear upon a consideration of these important subjects their intimate knowledge of the economic conditions that prevail in industry.
But it is preposterous that we should even think of increasing the hours of work, for almost every day some new invention is introduced which displaces labour and reduces the cost of production. Every new machine which achieves this end throws men on the scrap heap. Yet, in spite of this, many false economists continue to cry, “ We must increase the hours of work to cut the cost of production.” The introduction of machinery is cutting the cost of production every day. I, therefore, submit that the hours of work should not be increased except on the advice of practical representative men acquainted with the economics of industry. I have known judges to give absolutely absurd interpretations to awards, and I prefer that laymen should be consulted on such subjects. The mere appointment of a man to the position of a judge does not endow him with greater knowledge of industrial matters than he had when he was a practising lawyer. I believe that there are men in the industrial movement quite as capable as any judge of giving wise decisions in arbitration cases. In the early stages of compulsory arbitration, the State court in New South Wales was composed of one judge and two laymen. For six years that court worked most satisfactorily; but once the laymen were removed from the bench, the business of the court was delayed and dissatisfaction recurred.
.- This clause relates to the foundation on which the whole system of compulsory arbitration rests. If we are to have a satisfactory method of determining industrial conditions, there must be absolute stability in regard to the principles on which the basic wage is fixed, and in regard also to the appropriate number of hours to be worked in the various industries of the Commonwealth. All awards should be built up from that basis; we cannot afford to have continually changing foundations for the structure of arbitration. The upper portions of the edifice may be altered from time to time by the providing of various marginal differences for skill, and differing awards in various trades and industries; but in no case should the, foundation on which the whole structure rests be changed lightly. I would urge the Attorney-General to take steps so to amend the clause as to make the foundation as strong and stable as possible. If we put into the hands of an arbitration court judge and conciliation commissioners, the power to alter the number of hours that must be worked in the various industries in Australia, and also the principles on which the basic wage is computed, we shall bring about a condition of confusion and instability that. will be without parallel.
To realize the difficulties that such a system would occasion, one only needs to remember what took place in New South Wales when the State Government there brought in legislation providing for a 44-hour week. At that time an award of the Federal Arbitration Court provided for a 48-hour week, and because of the difference between the number of hours of one group of employees, who were working under federal awards, and another group working 44 hours a week under State awards, there was indescribable confusion. We had the spectacle of a lengthy strike on the subject of hours, and, for many months, men in certain industries that were covered by federal awards worked only 44 hours, and earned only ll/12ths of the wages that they might have received. That was the result of the conflict of two jurisdictions. But what would happen if there were continual conflict in the jurisdiction of the Federal Court itself? One conciliation commissioner or one judge, without adequate inquiry, might bring about an alteration of hours, and then another judge or commissioner might award a different set of hours to men who would be employed in the same shops. There might conceivably be half a dozen different sets of hours of work in one industry. Such a position would be intolerable. It is essential, therefore, to retain some stable basis. I should say that, at the very least, three judges should consider such a matter, and determine, on all the evidence available, what alterations should be made in the direction of either increasing or reducing the hours of work.
Turning to the other point raised by this clause, one conciliation commissioner or a judge might make an alteration in the principle on which the basic wage is computed, quite apart from the amount of the wage and the hours worked. Here, again, is the possibility of indescribable confusion. In the awards of the various State courts and the Federal Court, different family bases have already been adopted. By the Federal Court, for instance, a family is regarded as a man, his wife and three children. Under the New South Wales system, a man and his wife are provided for, and in other States the basis used is a man, his wife and two children. To increase the existing confusion in this respect would be to do something which in my opinion might prevent the building up of any stable system of arbitration. If the foundations of an edifice nest on shifting sand, the building itself cannot be stable. Nothing is more irritating to the workers or to the employers than continual doubt as to where they stand. I trust that the Attorney-General will accept the amendments submitted by the Leader of the Opposition.
– Repeatedly, during the discussion of this bill, both on the second reading and at the committee stage, the Attorney-General has assured us of his willingness seriously to consider amendments offered from this side of the chamber, and I think that the amendment now before the committee furnishes a means of testing the Minister’s sincerity in that statement. The amendments of the Leader of the Opposition must commend themselves, not only to all members of the committee, if they will forget party matters for a moment, but also to all persons outside Parliament who are interested in this important subject. So far as the basic wage and the hours of employment are concerned, the court, under this bill, is deliberately loaded against the employers. It is placed in a position in which it cannot fail, from time to time, heavily to penalize industry. To put the matter briefly, three judges may make an award favorable to employers, and only one judge or conciliation commissioner is required to make an award favorable to employees; or, on the other hand, three judges or conciliation commissioners may make conditions worse for the workers, and only one judge or conciliation commissioner will be required to render less favorable the conditions of employers. Here is absolute bias. That the clause was con=ceived by the Attorney-General I find it difficult to believe, despite his protests yesterday. Such a provision could only have been inserted at the dictation of the Trades Hall secretariat.
– Why . is the bill loaded in favour of one party? If the tribunal is intended to be impartial, surely the machinery should be designed in accordance with the traditions of British justice.
– Would it be easier to convince one judge than three judges?
– In respect of a matter of fundamental importance the determination of three judges is preferable, but if the honorable member believes that one judge is as good as three judges, let us have the same tribunal for both sides. Let us stipulate that one judge may increase or decrease hours and the basic wage. I appeal to the AttorneyGeneral to recognize that in the existing depressed and enfeebled state of industry the jurisdiction of these tribunals should rest as lightly as possible on it. It is well to remind the committee of the reduced purchasing power of the country and the state of industry generally. The latest statistics available indicate that 15 per cent, of our workers are unemployed. The employing power of capital is down to zero, and a measure that will make the employment, of workers more difficult is particularly inopportune. I quote for the information of honorable members statistics showing the diminution of returns from some of our principle primary products which are the main source of the country’s wealth. The following are average prices: -
One could continue the list almost indefinitely. These figures show the desperate condition of the primary industries, and the partial drying-up of the principal sources of national wealth. At such a time the Government,, instead of devising an instrument of torture and persecution, should be endeavouring to ensure that the Arbitration Court shall be a scrupulously impartial instrument of justice.
– How will this clause torture industry?
– Because on the vital subjects of hours of labour -and wages the court will be biased in favour of the workers and against the employer.
– The honorable member wants wages reduced?
– I do not. I want the same machinery for ‘an award in favour of an employer as for an award in favour of the employee.
.- The charge of bias so recklessly made by the honorable member for Henty is not sustained. The honorable member assumes that the workers will necessarily be benefited by appearing before a bench of three judges instead of one judge. I do not know upon what ground he ‘bases his conclusion that a’ bench of three judges will give to an applicant organization what one judge will not give. The principle of the clause is that it recognizes that the two gravest matters within the jurisdiction of an industrial tribunal are the reduction of wages, and the increasing of the hours of labour.
– Or the increasing of wages, and the reduction of the hours of labour. Everything depends on the point of view.
– I have stated my view. The bill provides that these two functions shall be exercised only by a bench of judges. I remind the honorable member for Henty that the 1928 act gave to a single judge power to reduce or increase the basic wage. We have not heard that any judge has acted in a reckless or indiscreet way because of the authority conferred upon him by the present act, so why should we assume that anything of the kind will occur under the act if amended as we propose? The principle underlying this amendment seems to me te be very sound, namely, that the power to increase working hours or reduce wages should be vested in a full bench of three judges. I regard that power as the most important which any industrial tribunal can possibly exercise.
– Might not an increase of the basic wage be as serious in its effects upon industry as a reduction?
– We can be guided only by experience, and it is a fact that more discontent, more bitterness, and more industrial disturbance has been caused by reducing wages and increasing working hours than other matters.
– The. bill provides that the award can be varied only by three judges. Why not make it necessary for three judges to collaborate in the framing of an award?
– The purpose of this bill is to promote goodwill, and wc must pay attention to the relative importance of things. Seductions of wages and increases of working hours have in the past caused a great deal of industrial unrest. For that reason I consider that it is quite proper that power to vary awards in that way should reside only in the full bench of the industrial tribunal. I appeal to the Deputy Leader of the Opposition (Mr. Gullett) to give the Government credit for some measure of good faith, and not fling about charges of bias in reckless fashion.
– The Government proposes, by one of the amendments, that where a variation of an award is being considered by way of increase, decrease or interpretation, then it shall be so considered by the court of three judges. Why not extend the principles of that amendment to the case where awards are being made in the first instance? I quite agree with the honorable member for Parkes that one of the main causes of industrial unrest is the reduction of wages and increase of hours. No man likes to have money taken out of his pocket, or to be made to work longer hours. These important matters should be settled by the three judges. Personally, I would desire to see disputes settled by a representative of ‘the employees, and one from the employers with an impartial chairman, or even ae suggested by the honorable member for South Sydney, a conciliation commissioner for the men and one for the employers sitting with a judge. However, as we have not that system before us, I would appeal to the Government to amend this clause so that any increase or reduction of hours and wages should be made by the full bench of three.
Mr. KEANE (Bendigo) [3.55.j- The existing act provides that no decrease of standard hours or increase of the basic *age may be effected except by the order of the Chief Judge and two other judges. The amendment provides for practically the same thing, except that in this bill it is proposed that no decrease of wages or increase of working hours shall be made except by the chief judge and two other judges of the court. I agree with the honorable member for Parkes (Mr. McTiernan) that the two great industrial questions are, how long shall a man work ; and what is the minimum he shall receive? The people of Australia said quite definitely in October of last year that the standard of living should not be reduced. It is proposed in this amending clause to prevent any single individual from meddling with the basic wage. An award having once been issued is to be altered only by the chief judge and two other judges.
– The honorable member means that applications for variation in one particular direction must be heard by the chief judge and two other judges. 0
– This clause is designed to safeguard the two greatest principles which the workers of Australia desire to preserve, namely, a reasonable number of working hours, and a decent living wage. The decision of the Full Court in the 44-hours’ case was a calamitous blunder from the point of view of the workers. The unions selected the engineering industry as a test case, believing that what was decided in that case would apply to other workers. The members of the Full Court were quite unqualified for the job ; they knew nothing about industry. They declared that an engineer employed in a workshop during regular hours from 7 a.m. to 5 p.m. should enjoy a 44-hour week, while the railway navvy, out in all sorts of weather, including cold, flood and fire should work 48 hours a week. Nothing could be more calculated to arouse the ire of trade unionists than decisions of that kind. The Deputy-Leader of the Opposition, and others on that side, have frequently stated that if working hours are reduced unemployment must follow. Let us examine that argument. The reduction of hours from 48 to 44 a week, would involve the discharge of one man in every eleven. At the moment, industry throughout Australia and in other parts of the world is in such a position that it is unable to absorb the labour that is available. Yet honorable members opposite persist in using the argument that the solution of the problem is a lengthening of hours. Even in our life time we shall see the practice adopted of a working week of 30 hours. If it is not, I do not know what the industrial position will be. The argument that, if men work a greater number of hours more work is provided, only needs to be analysed in cold blood to be proved an illusion. I have not been able to obtain from honorable members any indication as to how that is to be achieved. If -eleven mcn are worked four hours more in every week, one man fewer is required.
– What happened in connexion with the engineering award?
– I am giving the results of my experience. The case for the employers throughout Australia, whenever the court has been asked to determine the question of hours, has been that a reduction of four hours a week would necessitate the engagement of one additional man for every eleven employed. I have met some foolish men in my time, but I have never listened to greater nonsense than has been talked in this chamber on this question. I claim to have quite an open mind upon it. During my industrial experience I have given close observation to this matter, and have endeavoured to help in the solution of this colossal problem. I believe that the proposal of the Government is the only one that is acceptable to a. majority of the people-of Australia. We must not allow any judge to “fool about” with these two matters that so vitally concern the working class of this country.
– Under the amendment of the Government, a single judge will be allowed to “ fool about “ with hours and wages.
– It will not be possible, under the proposal of the Government, for the working week to be increased or the present inadequate basic wage to be lowered. There is ample justification, from the economic aspect, for this amendment. I sincerely believe that, within the next two or three years, the working class of this and other countries will be fighting, not for the retention of a 44-hour week, but to obtain a 30- hour week. If they are victorious, we maybe able to absorb a greater number of our people. No honorable member can suggest a lower basic wage than £4 6s. a week for the average man in industry. Any suggestion that that should be interfered with, except after a long, an exhaustive, and a detailed examination, is unthinkable. I oppose the amendment of the Deputy Leader of the Opposition, and heartily support the clause.
– The position is clear and definite. The bill provides that hours can be increased and the minimum wage reduced only by three judges; but on the other hand a commissioner, the judical strength of whom we do not know at the moment, will be able to reduce hours and increase the minimum wage if he so desires. All that we are contending for is that it shall be necessary for three judges to hear either case. That, I submit, is a perfectly reasonable and fair proposition. I have no wish to cast any reflections on the bona fides of the Government in this matter. Honorable members opposite have asked us to show where we consider the bill is unfair to the general public, and where it weighs down the scales of justice in favour of the trade unionists. This is one clause that will lead the general public to believe that the bill is not drawn on lines that are absolutely fair to all parties in industry. If it provided that applications for a reduction of hours or a raising of the minimum wage must be heard by three judges, we should have no complaint to make. The honorable member for Parkes (Mr. McTiernan) has pointed out, and rightly from the trade union point of view, that the two matters which agitate the mind of the industrialist of this “country are, a lengthening of hours and a reduction of the basic wage. Therefore, he argues^ it is right that neither should be altered except by three judges. I point out, however, that another matter is equally important, not only to the opposite side in industry, but also to the workers themselves. It is just as important to the workers as it is to capital that hours of labour shall not be reduced in certain industries. An industrial commissioner may be perfectly honest and decent, and yet not be endowed to any extent with judicial qualifications. If his sympathies are with the workers he may fix the number of hours to be worked in a week at 44, when the number worked in that particular industry in other States is 48. These men will thus have it within their power to ruin a national industry.
Let us consider what the 44-hours week has meant to New South Wales. Mr. Bavin, the Premier of New South Wales, pointed out in a speech quite recently that the Commonwealth Labour Report for 1928 showed that the reduction of hours from 48 to 44 in New South Wales gave no actual increase in pay to the workers but meant that the same amount of work cost approximately £8,000,000 more. On the North Shore bridge the additional cost up to -the 31st May, 1930, that was directly attributable to the 44- hour week, was £132,407.
– What percentage was that of the total cost?
– That is another matter ; and I do not think that it bears very greatly on this point. At Mort’s Dock, the increased cost directly attributable to the 44-hour week amounted to £18,000 a year ; and, as a result of that increase, Mort’s Dock lost several contracts for the repair of ships that otherwise would have been obtained by them. There is the case of a vessel that was towed 12,000 miles to Rotterdam, because, on account of this disability, Mort’s Dock could not quote a price that would permit of the work being done here. The honorable member for Bendigo has argued that a lengthening of hours means a reduction of work. I should agree with him to some extent if every country in the world worked the same number of hours, or if every State in Australia did so. No honorable member on this side wants the working man of Australia to work a minute longer than is necessary to satisfy the economic position. If, by working 30 hours a week, an industry could return interest on capital-, pay the wages of the men employed, and make a contribution to the national wealth, I should say, “Work 30 hours a week.” But if that is not possible, the number of hours that is economically necessary must” be worked. In New South “Wales, as the result of the 44-hour week in the iron and steel industry particularly, time and again contracts have gone to Victoria, where members of the same union were working one-twelfth of a year longer for the same wages that were paid to their comrades in New South wales for a fewer number of hours. Under the circumstances, how can New South Wales compete with her sister State in such industries? The result is that men are dismissed from their employment because work is not available for them. If an equal number of hours were worked throughout Australia, and there was not this competition, no one would object to a reduction so far as Australian competition is concerned. If 44 hours, 40 hours, or even 30 hours were the law throughout Australia, the work available could be divided up among a larger number of people.
– It would not be profitable to do it.
– Exactly. We should not then be able to manufacture a single article that would bring wealth into this country and keep industries going. Surely the honorable member for Bendigo can see that! The conditions that exist in the other nations with which we have to compete, such as New Zealand and Great Britain, fix the conditions here. That applies even to trade unionism. We should like, in a humanitarian way, to lay down generous conditions in respect of leisure hours and wages, but that is economically unsound in view of the hours and conditions of neighbouring nations, let alone those nations on the other side . of the world, with which we have to compete, at least, in respect of our primary products, and with which we ought to compete in respect of our secondary industries. In view of the importance of this question, it should not be dealt with by one judge alone. The matters with which a single commissioner will have to deal under this provision are just as transcendent in their importance as those which are decided by the three judges.
– Past history has not proved that.
– I say that it has. “We have had experience of the disadvantages of a 44-hour week, and we know that Australia is rapidly retrogressing. In prosperous times and on a rising market we could fix almost any kind of wages and hours, because industry could bear them, but to-day we are suffering from the keen competition of other nations. We are forced to compete with the outside world on a falling market, and therefore the leisure periods that were once enjoyed by this community cannot to-day be afforded by industry. We must realize that wages come, not out of the arbitration court, but out of industry itself. We cannot give special advantages to the workers unless the profits of industry are such as will allow that to be done. Profits have to be obtained from somewhere. They have to be earned by the workers and by the capitalists as co-partners in industry. It is only the present economic pressure that is forcing upon this country the view that both sides to industry must be prepared to make some sacrifice so that Australia may once more be in a sound financial position. I ask the Government to act fairly in this matter. It says that it wants to make the Arbitration Court an industrial instrument that will have the confidence of both sides to industry, enabling them to do their utmost to make it a success. That cannot be done if we discriminate between the employer and the employee, by stipulating that matters affecting the employee can be decided only by three judges, and that matters affecting the employer can be dealt with by any Tom, Bill, Jack or Harry that the Government may later appoint as a conciliation commissioner. It may be said that that is not likely to happen, but I wOUld refer honorable members to the evidence that is before us. What happened when the Lang Government of New South Wales appointed as conciliation commissioners men who were totally unfitted for the position ?
– Name one of them.
– Was not Paddy King a prize-fighter or a pastry cook? Did he not keep a refreshment room?
– Can the honorable member say a word against that man’s character?
– The honorable member is taking an absurd view of this question. I am not discussing this man’s character.
– The honorable member said that he was a pastrycook, when, as a matter of fact, he was a miner.
– This nian may or may not have the highest mora] character for all I know, but the fact that he has been a miner, a baker, and a prize fighter, is not evidence that he has the judicial faculties necessary to enable him to decide national matters such as the hours and conditions of labour. Of course the honorable member for Bendigo (Mr. Keane) contends that that type of man is better qualified for this work than is a judge. He says that the judges know nothing about matters of every day life, that they are aloof from the public; that .they have no real knowledge of industrial conditions; and, therefore, are not properly qualified to hold their positions. No right thinking man would agree with such a view. It it were correct the whole of our judiciary system would be wrong. There was never a more absurd argument than that the present Arbitration Court judges should be supplanted by labourers and plasterers, and that type of men, simply because, it is alleged, they deal with the verities of life in their ordinary employment. It would mean that a man could not be appointed as a railways commissioner unless he had driven a railway engine. Let iiic quote one instance to show the absurdity of that contention. Lord Cromer has one of the greatest reputations in the world as an administrator, yet, when he first took up his duties, he knew nothing about irrigation and the various other matters with which he had to deal, but because of his qualities, his brain power, and natural genius, he was able to solve the many problems that confronted him, and to make a tremendous success of tho work under his supervision. In view of the importance of a standard of hours to industry, it is essential that it should be fixed not by one judge but by three judges sitting together. The Attorney-General would considerably improve the bill by providing that all matters affecting the increase as well as the decrease of the basic wage and the decrease as well as the increase of the standard hours of work should bc decided by the three judges as they are constituted now. That would remove from the mind of the community any suspicion that one section of it is to be given favorable treatment at the expense of another. In addition, both sides to industry could view this legislation with more satisfaction, and there would be a better prospect of industry working smoothly and efficiently in the future.
.- The honorable member for Warringah (Mr. Parkhill) debated this clause from the point of view of the question of hours.
– I pointed out that the question of hours might be affected by a decision of the conciliation commissioner.
– The honorable member made out quite a good case, from his point, of view, for extending the standard hours per week from 44 to 48.
– I did 110 intend to do that.
– The Deputy Leader of the Opposition took up a similar attitude. He is evidently afraid that this measure, if passed in its present form, will to some extent protect the workers from the movement started by the late Government in the direction of decreasing wages and increasing standard hours of labour. According to the honorable member, if we increased hours and lowered wages more employment would be given, and Australia, would soon be in a sound financial position. It is singular that every increase of hours has been followed by an increase in the prices of commodities. Only the other day there was a strike at the abattoirs because of au increase in the working hours of from 44 to 48. The men returned to work on the basis of 48 hours a week and immediately the price of meat was increased by 2d. per lb. “When the Railway Commissioners obtained, through the court, an increase of working hours from 44 to 48, they immediately increased the prices charged in their refreshmentrooms by 35 per cent. Therefore, an increase of hours has an effect opposite to that stated by the Deputy Leader of the Opposition. The honorable member, ostrich-like, hides his head in the sand, and refuses to acknowledge the evidence before him of a changing world and the gradual displacement of manual labour by machinery in industry. The honorable member for Bendigo (Mr. Keane) put up a sound argument for a 30-hour week. We must sooner or later, in view of the changing conditions of industry, reduce working hours so that men may obtain employment.
The honorable member for Warringah endeavoured to besmirch the reputation of a man of good character, who is not here to defend himself. On two occasions honorable members opposite have referred to the appointment by the Lang Government of a prize-fighter as a conciliation commissioner. Let me say that the man in question was quite capable of filling that position, and he carried out his duties with credit to himself. What did the late Government do? Because of political exigencies, to enable a Country party candidate to stand with two Western Australian Nationalists for the Senate, it lifted Senator Drake-Brockman from that chamber to the judiciary. It picked this man out of an active political life, and, notwithstanding that he had declared himself in politics to be against arbitration and the enemy of the workers, insofar as they were seeking to improve their economic position, placed him on the Arbitration Court Bench. It did worse than that. It put two men on the Arbitration Court Bench - Dethridge and Lukin - to do the work that it desired them to do in connexion with the timber-workers’ strike.
– I rise to a point of order. I desire to know whether the honorable member for Werriwa is in order in referring to the members of the judiciary as he has done?
The CHAIRMAN (Mr. McGrath).The honorable member is not in order in referring disrespectfully to the judiciary.
– He should withdraw.
– I will not withdraw what I have said, for it is the truth.
– I must ask the honorable member to refer to the judiciary only in a respectful manner.
– I was not referring to the judges particularly, but to their appointment by the previous Government, and what I have said in that connexion is true. I was provoked to make these remarks by the statements of the honorable member for Warringah (Mr. Parkhill) about a. man who is just as good and clean-living a citizen as any judge. The honourable member was permitted to criticize the capacity of that man to do his work, and to insinuate that the Lang Government appointed him for political purposes. I have merely stated that the reputation of the Bruce-Page Government, which he supported, is besmirched by the making of such appointments.
– I listened carefully to the observations of the honorable member for Bendigo (Mr. Keane) on this clause. He appears to think that it would not make any difference to the economic position of Australia if everybody worked only four hours a day, so long as everybody was working. I. can understand that the honorable member may have formed that opinion because of his association for many years - perhaps forall his working life - with a State railway department that is operated at a loss which has to be made up by the taxation of the general community. In such a case it, perhaps, would be possible to support an overmanned staff, but it must be obvious to every clear thinker that ordinary industry cannot be carried on along those lines. If our ordinary productive concerns do not produce sufficient to pay the wages and conditions prescribed for them, they must ceaseoperations ; the general community cannot be taxed to make up any deficiency that they may incur. The application of such a principle to ordinary productive industry would soon bring disaster to the whole community.
The honorable member for Parkes (Mr. McTiernan) said, and repeated several times for the sake of emphasis, that the two most serious things which could happen to the workers of this country would be a reduction of their wages and an increase of their hours. I do not in the least minimize the seriousness to the worker, and particularly to the family man, of a reduction of wages. In these days, when the cost of living is so high, and when many men have to pay, in some cases, the equivalent of as much as two days’ wages in rent, a reduction of wages would be extremely serious. But worse things than that could happen to them. Our industrial history shows that wages may become so high and the hours of work so short that industry cannot carry on, and men must be dismissed. As a matter of fact, that has happened within the last decade. In New South Wales, in 1920, the basic wage was suddenly increased from £3 17s. to £4 5s. per week, and in an incredibly short time the percentage of unemployed in that State increased from 7 per cent, to 14 per cent., although in other States where no such sudden increase had occurred, the percentage of unemployment remained at about 8 per cent, or 9 per cent. Soon after that time, the basic wage in Queensland was suddenly increased from £4 to £4 5s. per week, and the percentage of unemployment jumped immediately to 16 per cent. In this connexion, the following extract from a statement by Mr. Sawkins, Statist to the Industrial Commission of New South Wales, is interesting:
The New South Wales Government of 1920 brought in an Ss. rise in the basic wage suddenly. The reaction was swift. In three months the unemployment percentage rose from 7 per cent, to 14 per cent., whereas other States showed only slight increases and their unemployment percentage remained between 8 per cent, and 9 per cent. A similar result of increase in unemployment percentage to 16 per cent, occurred in Queensland on its attempt to raise the basic wage suddenly.
Then the wage-fixing tribunals throughout Australia, recognizing the disastrous effects that had come from the sudden raising of .the nominal basic wage, tried the other alterna- tive. In October, 1921, New South Wales reduced its living wage from £4 5s. to £3 18s. In April, 1922, Victoria averaged 13s. 6d. per day. In April, 1922, South Australia averaged 12s. lid. per day. In Queensland, in April, 1922, the Arbitration Court reduced, the basic wage from £4 2s. to £4. All over Australia every State, whatever basis it determined its basic wage on, had come to a £4 dead level so as to adapt its basic wage to the existing circumstances and necessities.
As a result the unemployment figures fell from those just quoted to 9 per cent, in New South Wales in 1922, 7 per cent, in 1923, 9 per cent, in 1924 and 1925, and 7 per cent, in 1926, and, strange to say, for the first time the effective basic wage improved.
It will be seen, therefore, that what matters is not altogether how many shillings a week a mau may earn, but how much he can buy with his earnings. Although it would be serious for the workers if a reduction of wages or an increase of hours occurred, it would be more serious for them if wages and hours were so high as to cause unemployment. J. trust, therefore, that the AttorneyGeneral (Mr. Brennan) will accept the amendment of the Leader of the Opposition (Mr. Latham). If he does so, the clause will ride on an even keel, as it should do. I would not be fair to pass a measure which would work smoothly in relation to the employees, but harshly in relation to the employers. If the clause is passed in its present form, one man will be able to undo the work of three judges, and he will be able to do what it would take three judges to undo. The amendment is fair and reasonable.
The Attorney-General took exception to a statement that I made a few days ago that this bill was biased in favour of the employees. If he will accept this amendment he will, to a large extent, remove the foundation upon which I made that charge.
– It will be remembered that on several occasions during our consideration of this measure, I have expressed the hope that the Government would be given the benefit of the counsel and opinions of all honorable members of the committee with the object of improving the measure. I also said that I would earnestly consider all suggestions made to that end. Consequently, I have been much interested in the spirited debate that has occurred on this clause, which is one of the most important in the bill, in that it deals with basic standards in regard to hours and wages. The honorable member for Gippsland (Mr. Paterson) reminds me that, in the course of his second-reading speech, he accused the Government in very strong terms of bias and palpable injustice in the framing of this bill. I invited him to prove that charge. I have never felt satisfied myself that it has been proved, or that evidence of a character that would be convincing to an ordinary fair-minded man has been adduced to support it. At first glance the clause has the appearance of bias in favour of the employee as against the employer; but, in introducing the bill, and, in replying to the second-reading debate, I made an attempt, at least, to give an effective rejoinder to that contention. I refer to it again, at this stage, by way of reply to the honorable member for Fawkner (Mr. Maxwell), who put to the honorable member for Parkes (Mr. McTiernan) the pertinent question whether an increase of the basic wage might not be as serious to the community as a reduction of that wage. That was a fair question, and I thought that it was fairly answered, up to a point, by the honorable member for Parkes, who declared as his opinion that the two most serious economic questions, from the public point of view, that could arise for judicial consideration, were a proposal for pulling down, necessary or unnecessary as that might be, the basic wage standard, and interfering with the basic hours of employment, which, after all, touch also the subject of remuneration. I share the view that those are the two most serious matters that could arise, and the answer that I would give to the honorable member for Fawkner is that I do not regard an increase of wages or a shortening of hours as being of such serious import to the public generally as a reduction of the basic wage standard or an increase in working hours. In saying that, I am certainly not consciously biased. The honorable member for Fawkner says that we regard these matters as serious from a certain point of view. Of course, everybody addresses himself to them from his own point of view, and I am assuming that everybody is addressing himself to this subject honestly in the public interest. What influenced me in connexion with this clause was the strongly-held belief that the undermining of the basic standards of living as reflected in wages or hours of employment not merely affects the allocation of profits, but touches, in an intimate way, the subject of the very necessities of life. It deals with the means to live; it concerns the bedrock requirements of the people; and an interference with it is something, which, to quote, I think, the honorable member for Bendigo (Mr. Keane), may well be calamitous in its nature.
The other aspect of easing the living conditions of the worker has relation, to the proportion of profits that may be devoted to wages. It refers to the matter of improved conditions. It visualizes circumstances of increased buoyancy and prosperity. It deals with a rising market ; not the much more serious position of a falling market. I do not know whether I can better express my view than by saying that surely the honorable member for Fawkner does not contend that those two positions are equally serious. In one case the question arises whether or not we have the bedrock basic wage down to the standard at which men can decently live. Is that a question of only equal importance to that of whether or not wages may, under improving conditions, be raised ever so little, or hours be shortened ever so little?
– Even under adverse conditions, that may happen.
– Such a thing may happen; but I would have the committee understand that, in my opinion, a greater measure of ceremony, more serious consideration, and a more deliberately instituted tribunal should be got together for the purpose of dealing with the very grave matter of what should constitute the standard basic wage. This question is, “What is the bedrock wage?”; not whether industry can pay a little more or whether we can make hours somewhat shorter. The question of what is bedrock affects, not the workers alone, but the community as a whole. It affects the workers’ earning capacity, and their capacity to spend wages, of course, but surely it concerns more the social conscience as to what is a decent standard under the economic conditions in which we find ourselves. That is how the matter presented itself to me when I submitted the bill in this form to the Government, and to those associated with me, for acceptance by this committee. If the measure is biased it is not consciously biased. This clause has been drafted deliberately in conformity with a policy which I conceive to be perfectly fair and desirable in the public interest, and not in order that there should be a sharp division between the subjects of raising wages and fixing basic standards of living, as though I were here to fight wholly in the interests of one section as against the interests of another, or as against the interests of the community as a whole. Such a thing never entered my mind. Admitting myself a little sensitive to the charge of deliberate bias, and of deliberately “ loading “ this bill, which is designed to be in the public interest, unfairly against any section of the community, not only am I anxious that it should not be, in fact, unfairly biased, but I am desirous that it should not have even the appearance of bias. Up to the present time this is the only clause in respect of which any argument has been adduced to show that the bill is in that sense biased unfairly against any section ; not as to penalties, commissioners, wages or fines - nor in any other particulars has it the appearance of bias-
– The waterside workers !
– They do not come into this matter.
– But they will.
– If I were to take as proven facts everything which it is alleged is to be done under this bill, it would bo a grossly improper measure to introduce into any deliberate assembly; but I deny that those things are likely to be done or could happen under this Government. Having said so much, and having promised the Leader of the Opposition (Mr. Latham) that his amendment would receive the fullest consideration, I intend to ask the committee to postpone consideration of this clause, in order that what has been said in the course of this debate may be further considered by the Government in connexion with a proposal which I have in my mind.
– Has a commissioner power to vary hours or wages?
Clause 8 -
Section eighteen c of the Principal Act is amended -
by omitting from sub-section (2.) the words “ such of “ ;
by omitting from that sub-section the words “ as are assigned to him by the Governor-General “ ;
Section proposed to be amended - 18c. - (1.) The Governor-General may appoint conciliation commissioners of such number and upon such terms and conditions as to remuneration, tenure and otherwise as he thinks fit. (2.) A conciliation commissioner shall have such of the powers of a judge under sections sixteen and sixteen a of this act as are assigned to him by the GovernorGeneral.
.- This is one of the most important proposals in the bill. The provisions relating to conciliation commissioners were introduced by the late Government in 1926. They provided for the appointment of commissioners to discharge the functions of conciliation only. It was stipulated that the Governor-General might appoint such commissioners in such number and upon such terms and conditions as to remuneration, tenure of office and otherwise as he thought fit. The commissioners were to have such of the powers of a judge under sections 16 and 16a of the act as were assigned to them by the GovernorGeneral. Those are substantially the provisions of the 1926 act with regard to conciliation commissioners. It will be observed that their functions are confined to such of the powers under sections 16 and 16a as are assigned to them by the Governor-General. Powers are given under those sections to conciliate and summon conferences for the purpose of conciliation only; they are not arbitral powers. The conciliation commissioner is to operate only in the way of conciliation, and not in the way of arbitration. His powers and functions are confined to endeavouring to induce the parties to arrive at an agreement. That is the function of a conciliator; it is distinct altogether from the function of an arbitrator, who is in a position to give a decision against the will of a party, whereas the conciliator, where he succeeds, brings about an agreement.
– The first and most important duty of an arbitrator is conciliation.
– The two functions are entirely distinct. Until the late Government provided for the appointment of conciliation commissioners both functions were entrusted to the judges of (he court, who, although they invariably endeavoured to bring about agreement, often failed because the arbitration power was in the background. The Government and the House thought proper to provide that the remuneration and tenure of conciliation commissioners should be such as the Governor-General might decide, because a commissioner could not in any circumstances force a decision; he could only endeavour to bring the parties to agreement. Accordingly, Mr. A. M. Stewart, registrar of the court, was appointed Conciliation Commissioner on the 18th April, 1927, and the powers conferred upon him were expressed in these terms in the Gazette of the 5th May, 1927-
I do hereby assign to you to be exercised under the direction of the Chief Judge, all the powers of the Chief Judge under suctions sixteen and sixteen a of the said act;
AndI do hereby charge youwith the duty under the direction of the Chief Judge, of endeavouring at all times by all lawful ways and means to reconcile the parties to industrial disputes, and by conciliation to prevent and settle industrial disputes whether or not the court has cognizance of them.
Tho Government now proposes to add to the functions of the commissioners by making them also arbitrators. The bill provides that they shall have all the powers of a judge under sections 16 and 16a, independent of any assignmentby the Governor-General, and in the circumstances it would be out of order under the proposals contained in thebill to require that they shouldactunderthe direction of the Chief Judge It willbeunderstood that under the act a conciliatoracts under such directiononly in relation to thespecificationoftheparticularmatters towhich he istogivehisattention Thereisnoroomforcontrolinthe course of dealing with aparticular dispute; he merely meets the parties, and endeavours to reconcile them. It was thought undesirable, however, to allow the commissioner to act independently of the Chief Judge; otherwise a judge exercising the powers of conciliation and arbitration might be dealing with a case whilst simultaneously the conciliation commissioner was acting independently in connexion with the same matter.
The amendment now proposed will, however, make the conciliation commissioners arbitrators, and clothe them with the full powers of judges; They will be able to hear and determine industrial disputes in the same manner as a judge does, subject only to the limitations that they will be unable to impose penalties or interpret awards, both these functions being judicial. But, whilst entrusted with these most important duties, the commissioners will have no security as to remuneration or tenure. These matters will depend entirely on the will of the Governor-General; therefore, the commissioners will not have independence in their offices. Whilst the Opposition will propose amendments to this clause, I wish to make it clear that we are opposed to it in its entiretyon the ground that it provides for the appointment of arbitrators, misnamed conciliation commissioners, without prescribing their qualifications or giving to them security in respectof remunerationand tenure. In these circumstances, appointees would be entirely subject to the control of the government ofthe day.’ Section18cprovides-
The Governor-General may. appointconciliation commissioners of such number and upon such termsand conditions asto remuneration, tenure andotherwise ashe thinks fit.
Accordingly,any condition relevantto theirfunctionsmaybeimposedupon them , and they cannotpossiblyinthose circumstanceshavethat independence whichParliament hitherto has insisted uponinrespectofpersons discharging, i mpor t an tarbi tr al functions.
Mr.Maxwell.-Thereistobeno appeal from the awards of theconciliation commissioners.
– That is so. Having stated our general objection to the clause, I propose now to criticize it more specifically. What are to be the powers of the conciliation commissioners? The bill proposes to insert these sub-sections in sections 18c -
A conciliation commissioner shall also have all the powers which the court or a judge has under this act for the purpose of preventing or settling industrial disputes, including the powers contained in section thirtyeight, other than
Any award or order made by a conciliation commissioner pursuant to the power conferred by this section shall for all purposes be and be deemed to be an award or order of the court.
The commissioners will have all the powers which the court or a judge has for the prevention or settlement of industrial disputes. Section 18 provides -
The Court shall have jurisdiction to prevent and settle, pursuant to this Act, all industrial disputes.
The bill proposes to insert in several sections after “ the court “ the words “ or conciliation commissioner “. But those wordsare not proposed to be inserted insection 18.Section 18a says -
Subject to this Act the jurisdiction of the Court may be exercised by the Chief Judge or another Judge.
Presumablythat applies to a commissioner also; therefore, a single commissioner will be able to exercise the whole jurisdiction of the Arbitration Court.
Mr.Brennan. - That is what is in tended.
– Section 21aa provides for application to the High Court to determine whether an alleged industrial dispute extending beyond the boundaries of one State exists, or for a decision upon any; question of law. The bill proposes that the determination of questions of law such as the existence and extent of a dispute, which affect the jurisdictionof the Arbitration Court, shallbe determined by that court andnot bytheHighCourt. That isto beone of the powers of thecourt.Does the
Attorney-General seriously propose that, that power shall be vested in a conciliation commissioner, who may be a layman ?
– That is part of the judicial power of the Commonwealth and cannot he exercised by a layman.
– It is exercised everyday by the Arbitration Court.
– Is it not part of the judicial power of the Commonwealth to determine whether an interstate dispute exists ?
– The question arises in the arbitration sphere, and sometimes in the judicial sphere. Before the judges of the Arbitration Court were appointed for life these matters were determined regularly by them, and are still so determined. But it is possible to re-argue the matter before the High Court, which in determining the issue, exercises the judicial power of the Commonwealth. In respect of every dispute the Arbitration Court determines how far it, extends and to what matter it relates. Those are questions of fact to be determined by the court in the light of relevant law, but they may be contested again before the High Court.
– When the Arbitration Court is deciding the matter is it not, in substance, exercising the judicial power of the Commonwealth?
– What the Arbitration Court does is a condition precedent to the exercise of that jurisdiction. The matter cannot be finally determined by the Arbitration Court; but it is determined by that court usually as part of its every-day work. In the High Court in the Newcastle and Hunter River Steamship Company v. the Merchant Service Guild case, the High Court laid it down that the Arbitration Court has jurisdiction to determine these matters, but it is not a final jurisdiction. Under section 21aa of the act, power to determine questions of lawis conferred on the court. According to the amendment, the power of the court is to be conferred on commissioners, but surely it is not intended that a conciliation commissioner should have power to determine finally, and without appeal, all matters of law.I hope that the Attorney-Generalwillconsider the relation of his proposedamendment to section 21aa.
Section 31, as proposed to be amended, provides that no award or order of the court or a conciliation commissioner shall be challenged, appealed against, reviewed, quashed, or called in question, or be subject to prohibition, mandamus or injunction, in any court on any account whatever. But the court may, if it thinks fit, in any proceeding before it “ or before a conciliation commissioner “ at any stage, and upon such terms as it thinks fit, state a case in writing for the opinion of the High Court upon any question arising in the proceedings which, in the opinion of the court, is a question of law. It appears to me that a mistake was made in the drafting of that sub-section. It enacts that the court may state a case in respect of any matter before it or before a conciliation commissioner, but how is the court to state a case regarding a matter which has come before a conciliation commissioner and of which it knows nothing?
– Presumably, upon reference by the commissioner.
– There ought to be a definite provision to that effect. Section 32 provides that a judge, on the application of any party to an industrial dispute, may, on summons returnable before a judge, make what is commonly known as an interlocutory order. If the conciliation commissioners are to exercise the powers of the court, they should also possess this power, but while the words “ or a conciliation commissioner “ are sprinkled liberally throughout the other sections of the memorandum accompanying the bill, they are conspicuously absent from this section.
The commissioners may exercise any of the powers set forth in section 38 except those of imposing penalties, interpreting awards and making a common ! le, and may fix penalties of up to £1,000 for breaches of awards. Very grave consideration should be given to any proposal to confer such power upon persons appointed without any independence of tenure. Section 38 a confers upon the court or a conciliation commissioner power of amending a plaint or other proceeding, but section 38b, which provides that the relief to be given need not be limited to the formal claim, is made to apply to the court only, and is not vested in the commissioners. Similarly, section 40 confers upon the court power to grant preference to unionists, but there is no provision for extending this power to conciliation commissioners. Is it intended that a conciliation commissioner shall have no power to grant preference to unionists? However, under section 40a, power to appoint a board of reference is expressly conferred on conciliation commissioners. There is grave risk of serious confusion arising if this bill is left in its present form. No one will know what the powers of the conciliation commissioners are intended to be.
The Arbitration Court has for many years been operating as a court, with a conciliation commissioner attached to it. The commissioner has acted under the direction of the Chief Judge, and the business of the court has been controlled in accordance with the ordinary traditions of a court. In the absence of agreement between the judges, the Chief Judge assigns the work and draws up a list. That system works well, because it has behind it the traditions of a court; but if some unknown number of conciliation commissioners are to be attached to a court without actually being made judges, how is the business of the court to be arranged? I invite the attention of ‘the committee to section 39 of the act as proposed to be amended. It provides that the court or a conciliation commissioner may exercise any of its or his powers on its or his own motion, or on the application of any party to the industrial dispute, or of any organization or person bound by the award of the court or a conciliation commissioner. Under this section a conciliation commissioner may exercise any of his powers on his own motion. That power, up to the present, has been in the hands of judges only, and judges are accustomed to act according to the traditions of the court. It is possible, however, that a conciliation commissioner might regard himself as charged with a duty to act without referring to anybody as to what cases he should take. In order to avoid confusion I propose to move an amendment to provide that in the exercise of conciliation powers a conciliation commissioner shall act under the direction of the Chief Judge. That will ensure that conciliation commissioners shall summon conferences and confer with parties in respect of such disputes as are specified by the Chief Judge. I propose also to move an amendment to the effect that the commissioners shall deal as arbitrators only with such industrial disputes as are assigned to them by the Chief Judge. Otherwise there is a risk of overlapping and confusion of a most aggravating character.
Section 31 provides that there shall be no ‘appeal of any description from the award of a conciliation commissioner. It appears to me that this is a dangerous section, having regard to the absence of any fixed tenure of office which would confer upon the commissioners independence of action. Section 17 of the act provides that a registrar may refer any matter before him to the court for decision, and that the court may review, annul, rescind, or vary any act or decision of the registrar in any manner which it thinks fit. That section has worked very well. It has not led to any undue number of appeals from a registrar to a. judge. I propose at a later stage to move an amendment that awards made by a commissioner shall be subject to the same processes of review as the decisions of a registrar.
I believe that this amending clause ought not to be accepted at all; that it is a mistake to confer arbitral powers of such importance upon persons who have no security of tenure. I wish it to _ be understood that I desire the amendments I have suggested to be accepted only in the event of the clause being adopted contrary to my main contention.
.- I am not interested in the arguments of the Leader of the Opposition as to the expediency of the proposed amendment, but I should like to have the consideration of the Attorney-General upon a constitutional point. It is proposed to confer upon the conciliation commissioners most of the powers normally exercised by judges of the court. The AttorneyGenera1, may recall that in the Alexander case the authority of Mr. Justice Higgins, who was appointed a judge of the Arbitration Court for a period of seven years, was challenged on the ground that he enjoyed only a limited tenure of office, and it was decided that, but for the fact that he exercised innate powers and held a life tenure as a judge of the High Court, the order which he made could not have been upheld. Apparently the Attorney-General (Mr. Brennan) thinks that because he has imposed limitations upon the powers of these conciliation commissioners he has met the objections raised in the case of the Waterside Workers Federation of Australia against J. W. Alexander Limited. That case is reported in 25 Commonwealth Law Reports, page 434 et seq. The majority judgment of the court was read by the late Chief Justice Griffith. I make the following quotation from page 442 : -
It is impossible under the Constitution to confer such functions upon any body other than a court, nor can the difficulty bc avoided by designating a body, which is not in its essential character a court, by that name, or by calling the functions by another name. In short, any attempt to vest any part of the judicial power of the Commonwealth in any body other than a court is entirely ineffective . . . Without attempting an exhaustive definition of the term “ judicial power,” it may be said that it includes the power to compel the appearance of persons before the tribunal in which it is vested, to adjudicate between adverse parties as to legal claims, rights, and obligations, whatever their origin, and to order right to be done in the matter.
Further on the judgment reads -
It is hardly necessary to point out that the question whether any specific function does, or does not, appertain to the judicial power depends upon its nature, and not upon the name by which the authority which exercises it is designated in a statute, or upon what it is called in argument.
After stating that Parliament has provided that there shall be a Commonwealth Court of Conciliation and Arbitration, the judgment goes on to say -
The jurisdiction of the court is carefully and fully defined. It has cognizance, for purposes of prevention or settlement, of (inter alia) all industrial disputes properly submitted to it by plaint. It has power to determine the dispute by what is called an award, which is to be in force for a period not exceeding five years, and may impose obligations of the most onerous character on either party. In particular the court has power to make any order or give any direction in pursuance of the hearing or determination, to fix maximum penalties for any breach or non-observance of an order or award, and to impose penalties up to such maximum, to order compliance with any order or award, to grant mandamuses and injunctions against committing or continuing a contravention of the act, and in several other respects to exercise the ordinary powers of a court of justice.
The court was thus invested, uno flatu, with ample and complete jurisdiction to declare and enforce the mutual obligations of the parties.
The exercise of the power to impose penalties is admittedly an exercise of the judical power.
It was in consequence of that decision that judges of the Arbitration Court were granted, a life tenure. Because that power is not being completely conferred, thu Attorney-General (Mr. Brennan) may take up the position that a conciliation commissioner, when appointed, will not constitute a court. I point out to him, however, that although section 38d is to be removed from the act these conciliation commissioners will still have the power to fix maximum penalties, but not to impose penalties, that function being left to the court. Under section 38 b. they will have power to make any order or award, or give any direction iu pursuance of the hearing or determination. Further, they will have power, under section 38 da, which had not been enacted when Alexander’s case was heard, to order compliance with any of the terms of an award proved to the satisfaction of the court to have been broken or not observed ; and under section 38b to enjoin any organization or person from committing or continuing any contravention of the act.
– Have not all of those powers been exercised by arbitrators?
– Under section 38 i, they will have power to order any party to a dispute to pay to any other party such costs and expenses, including expenses of witnesses, as are specified in the order, but so that no costs shall be allowed for the services of any counsel, solicitor or agent; and, in order to clinch that power, they will be able, under section 38 b, to make any award. There will be no need for them to impose penalties, because, under section 49, a penalty of £20 will automatically be imposed for breach of any award that is made.
The Attorney-General says that arbitrators have exercised these powers. If he reads through Alexander’s case he will find that ‘.arbitral and judicial powers are largely parallel. The Attorney-General may well consider the possibility of decisions of these commissioners being held ultra vires if they are questioned, and that by whatever name the persons exercising the judicial powers are called, if they attempt to so exercise that power as is provided in this bill such exercise is invalid. In a later case,, that of the British Imperial Oil Co., which is reported in 35 Commonwealth Law Reports, page 439, the board of appeal, appointed under the Income Tax Act, was declared to be exercising the judicial powers of the Commonwealth, and the High Court decided that the vesting of such judicial powers in that board was unconstitutional. I urge the Attorney-General to give this matter further consideration before the bill goes to another place, and to determine whether he is not creating a body that will have no real authority in law.
– On the second reading of the bill, I said that I was heartily in favour of remitting disputes to commissioners, and gave my reasons for holding that view. The advantages of the system are obvious. But upon a fair review of the bill, one is forced to the conclusion that these two systems do not fit iu with one another. With the court running side by side with the system of conciliation commissioners, I am bound to say that it is difficult to form an opinion as to which of the two will survive. The Leader of the Opposition (Mr. Latham) has referred to some of the disadvantages; with much that he said I agree. It is generally admitted that what is required above all things in a system of arbitration, especially at the “ present juncture, is stability. I can understand the anxiety of the Attorney-General to maintain the principle by which the basic wage is fixed and standard hours determined. There would be distinct advantages if the industrial and commercial system’ of the country were assured of a wage and hours to which it could adjust itself. This is only possible if these are fixed by. one authority. The court and the court only ought to have the power to do this. I agree entirely that it ought not to be performed by one judge only.
Admitting that it is desirable to maintain stability, then the basic wage should be fixed upon a definite principle.
The honorable member for Flinders (Mr. Holloway) pointed out that it was a departure from the principle which the court had followed for a quarter of ‘a century which was mainly responsible for the timber-workers’ dispute. I think it desirable that we should stand by the principle which guided the court so long. If it be wrong, by all means let us substitute a better ; but the principle ought to be fixed ‘so that the workers and industry generally, will know where they are. But this section will not do that, because after the court has fixed the basic wage and given most careful consideration to the matter in all its bearings, a single conciliation commissioner will be able to upset the whole system. So far as I can see, there is nothing to prevent his fixing a basic wage. I do not know what the clause means, and I venture to assert that nobody else does; but what it says is that a conciliation commissioner shall have all the powers which the court or a judge now has, for the purpose of preventing or settling industrial disputes; including the powers contained in section 38s other than those set out in paragraphs d and /. The Leader of the Opposition has pointed out that, in fact, the only limitation on their powers is that they will not have power to interpret an award,, make a common rule-, and impose penalties ; although, apparently; they will have power to impose penalties in certain cases. However, I leave that matter for the time being; My point is’ that a single commissioner will be able to- disturb the foundation upon which the pyramid of industry rests. That is entirely wrong. What we require is stability. We need a basic wage and standard hours for all Australia; fixed and definite, so that we may know where we are. Superimposed upon the basic wage should be margins for skill, experience, and so- on. Hinder this1 provision there may be a dozen cooks in this industrial kitchen, who between them may well’ spoil the broth. These conciliation commissioners will have power to increase or reduce wages and to increase or reduce hours - to do all that the court can do - and they need take, no notice whatever of the probable economic effect of their awards upon the community- in general or on other industries.
When speaking the other night I gave the reasons for my objection to section 25d, but, as I said then, we cannot put things back to where they were by repealing that section. There may be a dozen conciliation commissioners, or there may be only two; but however many there are, each will have his own idea of what is right. There is this virtue in a court, that it follows a beaten track, though sometimes it may be the wrong track; still, there is the element of stability in its decisions. These conciliation commissioners, however, may consider the circumstances of a- particular industry without regard to those of any other, and without regard to the economic effect of their awards. The judges, in making award’s, have always taken the economic effect into consideration; they did so before the 1928 amendment of the law introduced section 25d, which the Government now proposes to repeal. I am entirely in favour of appointing subsidiary authorities with power to settle disputes; but as the maintenance of a standard wage and standard hours is so important, that only a majority decision of three judges may increase, the wage or lengthen hours, a conciliation commissioner cannot be given equal powers, if there is to be stability of conditions. The workers may say,, “ Things will be all right ; the Government will appoint the right kind, of men,, who will give, us the right kind of awards “ ; but we are living in trouble^ some times, and goodness knows what may happen. Besides, a new government might appoint other conciliation commissioners of quite another complexion. The proposal is utterly wrong. I suggest that instead of various, clauses of the measure containing provisionsfor giving powers to these commissioners, it would be better, when amending an. act which was framed for the purpose of conferring upon thecourt the powers of arbitration and conciliation which are given to the Commonwealth under the Constitution, to ,set out in one comprehensive, clause: exactly what the powers, of these conciliation commissioners- are to be-. At present, provisions relating to them crop up all: through the bill in the most extraordinary way.
Clause 26 inserts into section 38 a paragraph, which gives the court power “ to set aside an award or any of the terms of an award “. Does that mean that there is an appeal from the award of a conciliation commissioner ?
– I should think so.
– If the court is to have the final say; if it is the court which decides whether a given set of hours is to be worked, then the conciliation commissioners will have only the shadow of power; they will he mere marionettes. On the other hand, if there is no appeal from the decision of the commissioners, we shall have a multiplicity of courts without co-ordination, with no governing authority and paying no regard to the economic conditions of the country; a condition of things quite the opposite of what we want. We need stability, and we are threatened with confusion.
I am heart and soul in favour of making the approach to the court more easy, and would do away with pomp and ceremony and legal red tape. Industrial organizations should he able to approach an authority that understands their business, preferably a tribunal on which the employers and the employees would have equal representation. Arbitration needs a proper foundation, and that1 foundation must be a uniform basic wage and uniform standard hours. These basic conditions should be fixed by the court, and no other body should be able to alter them. This provision, if passed in its present form, will make things worse than they are. I ask the AttorneyGeneral to tell the committee plainly whether an award of a commissioner is to be final.
.- I move -
That the following new paragraph be inserted : - (aa) by adding at the end of sub-section 1 the following proviso: - “ Provided that no person shall be appointed as a conciliation commissioner who has within one year preceding the date of his appointment been an officer of an association.”
– Is that amendment submitted seriously?
– Quite seriously. The association referred to in the amendment is of course the association as set out in the interpretation, which reads - “ Association “ means any trade or other union, or branch of any union, or any association, or body composed of or representative of employers or employees, or for furthering or protecting the interests of employers or employees.
I am surprised that the AttorneyGeneral should, by way of interjection, ask me if this amendment is submitted seriously. If any justification were required for it, it would be found in the speeches of the right honorable member for North Sydney (Mr. Hughes), and the Leader of the Opposition (Mr. Latham). Both honorable members have pointed out the extraordinary and unprecedented powers that are to be given to laymen. The intention of the bill is clearly to appoint laymen as conciliation commissioners. They are to have the full powers of Arbitration Court judges, who exercise a tremendous influence on the mind of the individual and on the nation as a whole. The power of the Chief Judge of the Arbitration Court is not excelled even by that of the Chief Justice of the High Court, yet that power, in full, is to be exercised by laymen appointed as conciliation commissioners. In the appointment of judges, including Arbitration Court judges, I submit that, despite the statements that have been thrown across this chamber, great care has been taken to ensure that they have not only the capacity necessary for their positions, but also an unimpeachable impartiality. Occasional mistakes may have been made, but Governments all round have exercised particular care in the appointment of the judiciary. All that I am asking is that care be taken, under this bill, in the selection of conciliation commissioners.
– The honorable member is making an offensive innuendo.
– I am making no innuendo. My remarks apply equally to both sides of industry. I ask that no appointment as an industrial commissioner be made of any gentleman who has, during the previous year, been a member of any organization either of employers or of employees. Those persons who, as industrial commissioners, ave to wield a great influence in. the community, should be free from bias so far as that is possible I do not for a moment think that the Government would appoint conciliation commissioners who would deliberately and consciously act with bias; but persons who have been active members of an employers’ or employees’ organization might act with sub-conscious or unconscious bias. Bias of any kind is undesirable and dangerous. I ask honorable members to try to realize the enormous power and influence that these persons will exercise. I desire this amendment to be made, not as a safeguard against the present Attorney-General, but against any Attorney-General. If I were holding the portfolio, I should welcome an amendment of this nature. If the field from which the selection may be made is limited as I suggest, it will relieve the Attorney-General of the necessity of considering hundreds, and perhaps thousands, of applications t and still ensure that a sufficient number will be received from which a wise selection may be made.
.- There is no need to anticipate such difficulties as the honorable member for Henty has mentioned. I consider that these conciliation commissioners will act in much the same way as the industrial magistrates of Queensland act. Whenever a dispute occurs in a local centre in that State, it is at once referred to a local industrial magistrate, and he is generally ab-e to effect a settlement. If an agreement is reached, it is registered in the Industrial Court of Queensland. If no agreement is reached, the whole matter, together with all the evidence, is submitted to the Queensland Board of Trade, which consists of a president, a representative of the employers and a representative of the employees. The employees’ representative on this body, Mr. Dunstan, who was a member of the Australian Workers Union, has done excellent work. This is admitted by everybody who has had any contact with the board. Mr. Dunstan is a man of common sense, and, if he were to be appointed a conciliation commissioner, he could be relied upon not to act foolishly. He certainly would not award a basic wage of £10 a week when an industry could only reasonably pay £4 5s. a week.
– That system might work in the State sphere, but would it work equally well in the Federal sphere?
– I can see no reason why it should not do so, if we make it possible for the Commonwealth arbitration machine to move quickly. One of the great troubles at present is that the court is slow in moving. If conciliation commissioners are appointed as I have suggested, it is certain that local conditions will receive some considera- i tion. When the waterside workers’ dispute occurred some time ago, the Queensland waterside workers were following their avocation peacefully. But Mr. Justice Beeby made his award in that case without taking any evidence from Queensland, or considering the local conditions of that State. I understand that he intended to visit Queensland, but was prevented from doing so by an accident. The result of his award was serious for Queensland, for it dislocated work on the waterside there and smashed the Queensland branch of the “Waterside Workers Federation. Surely if the court ever acted with bias, the Commonwealth Court acted in that way on that occasion.
– On a point of order, is the honorable member for Kennedy entitled to charge the Commonwealth Arbitration Court with having acted with bias?
The CHAIRMAN (Mr. McGrath).I did not understand the honorable member to make that charge.
– There can be no doubt that the effect of the waterside workers’ award made by Mr. Justice Beeby was to dislocate industry. No consideration “whatever was given to the conditions in Queensland.
– Is not the honorable member aware that the Queensland award was incorporated in the federal award ?
– I am aware that no evidence was taken in Queensland, and that local conditions were not considered.
The dislocation of industry is a curse to the employers as well as to the employees. Take the case of a meat works, which employs a couple of thousand of men, and is in operation for only six months in the year. If a dispute occurs there which has to be referred to the Commonwealth Court the works may have to close, although the closing of them for even a week may make all the difference between success and failure to the proprietors, and would seriously handicap the employees. It is highly desirable, therefore, that we should make it possible for industrial disputes to be investigated immediately, and where they occur.
I regret that we have politicians in our midst like the honorable member for Henty (Mr. Gullett) who considers that everything that emanates from Labour is wrong, and everything that comes from capitalism is right. If this country is to be helped out of its present perilous condition we must display in our politics n different spirit from that.
If the power of the conciliation commissioners is increased, as proposed by the Government, it would enable many disputes to be settled expeditiously. At present if a dispute occurs in the sugar industry, at, say, Innisfail it might be necessary for a judge of the court to go to Innisfail from Melbourne, which, in itself, would occupy some time. It is quite likely that if the weather were hot the judge might find it inconvenient to visit Innisfail, and so the dispute would be prolonged. If, however, a conciliation commissioner with the power of a judge were available he could immediately investigate the dispute and probably settle it. Under the Queensland system only about six weeks elapse from the time a claim is made by an organization until it is dealt with by the court. Even the employers, who are represented by honorable members opposite, should welcome an amendment of the act to make such expedition possible. Conciliation commissioners clothed with proper power could settle many troubles almost before they began. This would be in the best interests of both employers and employees. Seeing that the producers want markets for their products, and the employees want work, it must surely be patent to everybody that if these parties were represented on the tribunal which has to deal with the vital questions of wages and hours, it would be in the best interests of everybody. Sitting suspended from 6.15 to S p.m.
– The functions of the conciliation commissioners will be to deal with disputes as they arise. If a dispute occurred among a section of the railway men at, say, Cairns, it could not be dealt with under the present act until such time as the court visited that district; but, under the Queensland legislation, an industrial magistrate can deal with such a matter on the spotMany disputes have been settled in Queensland without recourse to the court.
– Is the work of the industrial magistrate confined to industrial matters?
– No. He may be a clerk of petty sessions, or he may be anybody appointed by the Governor iu Council to intervene to bring the parties together. “When they reach an agreement, it is registered by the court. This method cheapens arbitration to the workers and to the people. The honorable member for Henty (Mr. Gullett) said that the 44-hour week meant unemployment.
– I was referring to the effect of the engineers’ award.
– If that award created unemployment in that industry, why has not the 44-hour week had a similar effect in other industries? In my opinion it should create employment, because, in an industry in which the working week was reduced from 48 hours to 44 hours, one extra man would be employed in every eleven.
– Provided the industry could afford the shorter hours.
– Of course; and that matter would be decided by the court or the commissioners. If an industry could not carry the 44-hour week, it would be useless for any court to make such an award, because the only .result would be to close the industry, but the 44-hour week has not resulted generally in an increase in unemployment. There are 18,000 railway employees in Queensland, and, when the 48-hour week was reverted to, 1,800 men lost their jobs.
I admit that a 48-hpur week gives four extra hours work every week to those who are employed, but it adds to the troubles of those who are out of work. The honorable member for Henty (Mr. Gullett) was associated with a government which was practically responsible for the spending of £12,000,000 on the Federal Capital. That was nonproductive work, and it has produced unemployment.
The honorable member referred to the decline in the prices of such primary products as wheat, wool, meat and metals. Surely he does not attribute that to the system of compulsory arbitration? When the cattle man received only £1 a head for his bullocks, the price of meat was Sd. a pound for the poorest cuts, and for other cuts as much as ls. Id. per pound was charged.
– What were the slaughtermen receiving then?
– They are but a small section of the employees in the meat industry. When the crash came in that industry, the workers, without resorting to the court, agreed at a conference with the employers to a 12£ per cent, reduction in their wages, and those engaged on the stations suffered even a greater reduction than the other employees. During the late war, when cattle were, bringing £14 and £15 a head, the workers in the industry had to fight in the court for every penny they received in wages, so there is no room for honorable members opposite to talk about this bill being biased in favour of the working man. “ The honorable member for Henty took exception to my remarks about the judges of the Arbitration Court, but I merely made a statementconcerning the effect of an award by Judge Beeby. The honorable . member spoke of the generosity of employers at round-table conferences, but I am afraid that the desire of honorable members opposite is to do away with compulsory arbitration, and to go back to the open economic ring for the settlement of industrial disputes. I recently saw an advertisement in the Sydney Morning Herald to this effect: “Wanted, a boy of seventeen; able to milk and plough; good’ wages ; 15s:. a week.” That reminds me of the “good old days,” to which honorable members opposite would like to return.
Compulsory arbitration has operated fairly successfully under both Labour and Nationalist Governments. The objection to the court being wholly constituted of judges is that they lack practical experience in industrial matters. Experience has shown that a court consisting of a judge and representatives of employers and employees gives more satisfaction to the parties to industry than one constituted of judges alone, and the conciliation commissioners, which the bill provides for, should be even more satisfactory. If the parties can be induced to come to an agreement, it can be registered by the court, which will be required only for the settlement of technical points.
– That is not the system proposed by this bill.
– The right honorable gentleman sees no good in the measure; but it is an honest attempt to bring about peace in industry. If it is not more successful than the legislation which his Government sponsored, I shall be the first to condemn it. There is no ground for the statement that trade union secretaries will be thrust into the positions of conciliation commissioners. The Labour party is .not more desirous than any other party of committing political hara-kiri. The Nationalist party staked its reputation on its arbitration policy, and to-day it has a mere handful of members in this House, because its’ method of bringing about peace in industry was to insert in the act sections that inflicted penalties on one section of the community only.
– The Government is now reversing that process.
– Not at all. If it did that, it would have but a short time to live. All governments have to face the people at comparatively short intervals, and the electors would not be so foolish as to tolerate any legislation that was not fair to all sections. This bill represents an attempt to deal justly with both parties to industry, relieving them of the legal expense that the present system has involved. If, with the assistance of the proposed conciliation commissioners, we adopt the practice that has proved satisfactory in Queensland, disputes can he settled on the job as they arise, by an appeal to reason. I am prepared to give the bill a chance, and I hope and believe that in operation it will be more successful than the present act has been.
– Every member of the Opposition willingly concedes that in bringing forward this bill the Government is actuated by the best of intentions. But we are trying to point out that some of its provisions are unworkable. For that reason I propose to vote against the clause now before the committee, and I suggest that the Attorney-General should recast the measure, eliminate the provisions for the appointment of conciliation commissioners with extraordinary powers, and leave the prevention and settlement of industrial disputes to the court as at present constituted. The proposed commissioners are inconsistent with the present arbitration system. The Government proposes to. continue the Arbitration Court of judges, and to set up another court of commissioners with the same powers as judges, except that they will not have the right to define a federal dispute, make a common rule, or impose penalties. In some respects the decision of a commissioner can override the decision of the judges. As I read the bill, against the decision of the Commissioner there will be no appeal, but in answer to the right honorable member for North Sydney (Mr. Hughes) the AttorneyGeneral said that there would be a right of appeal. If that right is to be given, the work of the commissioners will be nugatory, because all cases will go to the judges on appeal. This proposal will not further the Government’s objective of peace in industry; it will merely make confusion worse confounded. The less arbitration machinery we set up the better for industry. The members of the Industrial Inquiry appointed by the Liberal party in the United Kingdom reported” against compulsory arbitration. They say in their report, Britain’s Industrial Future -
The essence of this policy is that resort to the court must be voluntary, and it lays the utmost emphasis upon the importance of agreement between the two sides … It is not by conciliation after disputes have arisen, but by the practice of discussion, the gradual formulation of principles, and the growing recognition of common interests that health will be found. When the court of last resort is constantly called into play, friction and disunity must be deep-seated; and it will bc the best omen of industrial well-being when the court is scarcely needed at all.
– The honorable member , wants an open economic ring.
– No. I want the two parties in industry to come together under the chairmanship of a conciliator, whose duty will be to assist them to reach an amicable agreement. That is the only method that will achieve peace in industry.
– If they cannot agree, what then?
– The bill restores to the parties the right to strike or lock out. If the workers say that they will not accept the conditions offered by the employer they will still have final resort to the strike. The owner on the other hand will have the right to say, “I consider these proposals fair. They are the best I can afford to offer, and if you will not agree to them I am not prepared to carry on my industry.”
– That is an appeal to force.
Mr. ARCHDALE PARKHILL.Yes ; but the bill provides for it, and it is not likely to be resorted to until all other avenues have been explored. The right to strike or lock out will be a powerful lever pressing the parties to come to an agreement. If the conciliation commissioner is to be an arbitrator, the parties will fight each other in order to get a favorable decision from him.
– Why was not the conference more successful before legal tribunals were established?
– In recent years the possibilities of conciliation and mutual concession have not been fully explored. The market was rising, and all that was necessary was to fix a wage, and increase the price of the commodity correspondingly, in order to pass on the extra cost to the community. Now with a falling market industry is on a different basis; and the only chance of a solution of the economic problem, is for the two partners in production to study each other’s point of view, and compromise. If they can do that without the intervention of any tribunal, so much the better for everybody.
.- This afternoon the Deputy Leader of the Opposition (Mr. Gullett) outlined an amendment to limit the choice of conciliation commissioners. I regret that there are in this chamber persons so narrowminded and politically prejudiced as to propose that men connected with certain organizations should not be eligible for appointment as conciliation commissioners. I do not believe that any government would appoint unqualified persons to these responsible posts. I have a keen recollection of a debate in the Queensland Parliament on the Industrial Peace Act, when members of the same political persuasion as the Leader of the Opposition inserted in the measure a provision that a paid official of an organization should not appear before any wages board under that act as an advocate. It is difficult to understand an intelligent person making such a proposal. At least 99 per cent. . of the officers of organizations are actuated by the best motives when they appear before the tribunals. Amongst the officials of trade unions and associations of employers are many men who are competent to do justice to the parties and the community. Reference has been made to the undue prolongation of disputes. In September of last year, Mr. Justice Beeby, of the Commonwealth Arbitration Court, referred to Mr. 0’Kelly, Industrial Magistrate at Cairns, a dispute as to the quantity of material to be put into ships’ slings. Mr. O’Kelly reported to the Arbitration Court last year, and a decision was given by Judge Beeby in May of this year. If the matter had been dealt with by a conciliation commissioner this friction, which continued for seven months, would not have lasted for twenty-four hours. In Townsville to-day a dispute has developed over the action of the ship-owners in violating a custom which has prevailed there since 1891. Previously, when men were wanted to work certain ships they were selected from a list furnished by the secretary of the union, and the names were posted. Now the employers insist that those seek ing employment attend at the pick-up place, the reason given being that many of the ships are not equipped with wireless, and cannot, therefore, notify their exact time of arrival. Of course, in years gone by, none of the ships were equipped with wireless, yet the old custom worked. Such pin-pricking tactics are deliberately adopted to create trouble so that the employers may represent the waterside workers as a turbulent body of men who will not obey awards, and who, for that reason, should be replaced by others. The Leader of the Opposition said that Judge Beeby had embodied in the federal waterside workers’ award practically the whole of the Queensland waterside workers’ award. That is true, but many of the customs which had prevailed at Queensland ports for a great many years have been abolished under the federal award. As the honorable member for Kennedy (Mr. Riordan) pointed out, a dispute which took place at Cairns might wait a long time for settlement if a judge of the Federal Arbitration Court had to go there to attend to it. Under a proper system of conciliation, however, a settlement might be arrived at immediately. It is better to prevent industrial trouble than to arbitrate on it once it has developed. The honorable member for Warringah (Mr. Archdale Parkhill) professed to foresee dreadful possibilities if the authority of the conciliation com- missioners is not clearly defined. I cannot see that there is any foundation for his fears. Those of us who come from Queensland are quite familiar with the conciliation system, and know how well it has worked in that State. If honorable members studied the Queensland records they would be astonished to see the number of disputes which are settled in their initial stages in this way. . It has been suggested that the commissioners might do desperate things, but they could not possibly do anything more drastic than was done by the Moore Government in Queensland which repealed the rural workers’ award without even consulting the court. In Queensland the industrial magistrates are generally the ordinary police magistrates, and they have been able to do a wonderful amount of good work in the way of settling disputes, and preventing industrial trouble. I am pleased that it is proposed under this bill to appoint as commissioners men with a practical knowledge of industry, who will be able to give intelligent decisions on the points brought before them. In this way they will be able to translate the wishes of the tribunal into actualities, and to heal disputes which otherwise, starting from small beginnings, might develop into serious disturbances causing great hardship to the community.
– I was amazed to hear the Deputy Leader of the Opposition (Mr. Gullett) say that the Government might select as conciliation commissioners biased trade union officials. As an example of crass impudence that suggestion is hard to beat, coming as it does from one who was a member of a Government which appointed to the Arbitration Court Bench one of its own party leaders from a certain State. Incidentally, he has turned out to be an excellent judge; but that does not absolve the Government which appointed him. Those who have had most experience of industrial affairs are of opinion that legal men are not proper persons to try industrial plaints or anything arising out of them.
– Yet we have been told that a great deal of valuable work in this direction has been done in Queensland by legal men - for the most part, by magistrates.
– I am dealing with this question from an Australia-wide view, and in the light of my own experience. At the proesent time we have on the Federal Arbitration Court Bench skilled lawyers versed in the law of evidence - men who wear wigs and an air of great dignity. That does not impress working men, nor does it create an atmosphere helpful to the settlement of industrial differences. Such a judge has submitted to him some industrial problem. He has never worked in the industry, nor has he made a study of it. Skilled advocates of the contending parties appear in court, and are generally represented by counsel. A tedious mass of evidence is presented on every conceivable aspect of the claim, and long addresses are delivered by counsel. Finally, after great delay and after much expense has been incurred, an award is given which affords satisfaction neither to employers nor employees. If the case were heard before conciliation commissioners experienced in the industry, a great deal of time and expense would be saved. The commissioner would probably confer with the parties before the hearing, and arrange with them as to the points on which he desired to hear evidence. Much has been said regarding the conciliation system introduced in New South Wales by the Lang Government; but it must be admitted that it has worked with reasonable satisfaction. The awards have been accepted by the parties, and were obtained at less expense than if the plaints had been heard before the court. Honorable members opposite have made much of the fact that, under the bill, the conciliation commissioners will be appointed for no fixed term, and that no definite rate of remuneration has been laid down ; that they are to bc appointed on such terms and conditions as shall be determined by the GovernorGeneral. That, practically, is what is contained in the bill ; with this exception, that I can find no evidence to justify the statement that these conciliation commissioners will occupy their positions for only a limited period. No member of this committee knows for what length of time they will be engaged in this work. I do not believe that bias was deliberately shown by any previous government in the selection of members of the judiciary ; but it has been clearly proved that in some cases men have been appointed who were not qualified to bring peace to industry. A man who is an excellent criminal judge may not make a good arbitrator. Another man who is skilled in civil law may not be a good industrial lawyer. All of these gentlemen start off 100 yards behind scratch.
– What does a railway man know about the textile industry?
– Nothing ; as much as a lawyer knows about arbitration. Surely the honorable member does not think that this Government would be so stupid as to depute a railway man to adjudicate upon the textile industry? Customarily the decisions of the Labour party in these matters have been reasonably sound.
– Does the honorable member suggest that there shall be a commissioner for each industry?
– There are groups of industries. Probably there will be a commissioner to hear cases connected with the metal trades. Only practical men will be chosen. The overriding factor is that there shall be peace in industry, and that the employees shall be able to place some reliance on those who hear their case. The powers of the commissioners have yet to be discussed; it is by no means clear how far they will go. I regard this as one of the key clauses of the bill. Conciliation commissioners have been tried with success in this and other countries; they are the nearest approach to conciliation. It is the desire of the 900,000 unionists who are registered in the Federal Arbitration Court that this system be given a trial.
– I have heard so many protestations of honesty and disinterested motives, that I expected the Attorney-General (Mr. Brennan) to give the assurance that it is not intended to appoint to the position of conciliation commissioner any of his own partisans.
– Does not the honorable member think that it is impudent to suggest such a thing? Did not his party appoint whom it liked?
– This amendment has been proposed with the object of obtaining some guarantee that such a course will not be followed. If the Government and its supporters were sincere in suggesting that they do not wish to appoint their own partisans, why do they not accept the amendment ? Such an action would be very much more satisfactory than anything that they may say; it at any rate would give a guarantee that men who are immediately connected with the trade union movement are not to be placed in the position of a judge. I object wholly to the principle underlying this clause. These men will be, not conciliation commissioners, but purely arbitrators.
Reference has been made to the difficulties that will arise in the application of this provision. Those difficulties will be due solely to the institution of a dual system of tribunals in connexion with the working of arbitration. For the sake of appearance the Government must retain the Arbitration Court, which consists of judges ; but the idea is to put on to arbitrators, who are to be called conciliation commissioners, the whole of the practical work. The Attorney-General has assured the committee that the decisions of these so-called conciliation commissioners will be subject to appeal to the court. What is the use of prating about the delays that occur under the existing system, when every decision that a conciliation commissioner may make will be liable to be appealed against? In that respect the act is preferable to this measure. Under it, there is no appeal to any court from decisions of the Arbitration Court. On the ground of expediency, it is suggested that whenever a dispute arises there will be available a man who can drop on to it and settle it on the spot. I cannot see any reasonable expectation that these men, whoever they may be, will be capable of conducting an inquiry any better than those who have preceded them; particularly if it is the intention to appoint a commissioner for each industry or group of industries. If a dispute should occur in a remote State, how would it be possible for a commissioner to get to it quickly and decide it? One speaker suggested that instructions would be sent by telegram. That would be rather a difficult matter. I do not see any prospect of greater expedition by these means, than under the present system. I agree that we should have a mobile court. If there is not now a sufficient number of judges, let us appoint others, so that cases may be determined quickly. I agree, also, that the judge should discard all formality, and be given the power to decide cases promptly and completely. But it is equally important that we have complete impartiality in the court. Members opposite plead for equality for both sides. How can there be equality with a court that is loaded?
– How dare the honorable member suggest that it is to be loaded!
– I suggest it, because honorable members opposite have refused to forgo the right to load it.
– Because we will not be dictated to by the Opposition.
– Honorable members opposite are demanding the right to load it. They will not give an undertaking that the present judges are not to be replaced by union secretaries. That is why I think that the court is likely to be loaded. Many attempts have been made to amend the Arbitration Act; but this is the most flagrantly one-sided proposal that has ever been placed before the Commonwealth Parliament.
– The honorable member has not been here long enough to know.
– Any outsider can see that for years arbitration has been done to death in Australia. The plea that I make is that we have one tribunal only, and that it be impartial; one that will be acceptable to all sides in industry. Obviously the system proposed by the Government will not be acceptable to any one.
A great deal has been said about peace in industry. The peace that honorable members opposite wish to see is that which will be arrived at when the trade union movement has’ been perfected, and the whole of the industrial situation is in their hands. The peace that they are looking for is the peace of the lion and the lamb, the lamb being inside the lion. Under the proposal to confer on conciliation commissioners powers identical with those exercised by judges, there will be such confusion that the last result of arbitration will be worse than the first. I oppose the clause.
.- The amendment proposed by the Deputy Leader of the Opposition (Mr. Gullett), upon which there has been a somewhat general discussion in regard to the whole of the functions that the conciliation commissioners are to perform, brings to my mind the attitude which that honorable gentleman adopted in connexion with the appointment of members to the Tariff Board during the currency of the last Parliament. The honorable gentleman appears to think that there is a good deal of justification for the apprehension of the honorable member for Perth (Mr. Nairn), that the conciliation commissioners who are to be appointed under this legislation will be class-biased persons ; and he’ therefore seeks to restrict the choice of the Government, by imposing a prohibition with respect to the appointment of officials of industrial organizations. The amendment, of course, involves the definition of “ association.” In the act,” association “ is defined as “ any trade or other union, or branch of any union, or any association or body composed of, or representative of employers or employees, or for furthering or protecting the interests’ of employers or employees.” The effect of the honorable member’s amendment would be practically to make it impossible for the Government to appoint as conciliation commissioners either employers or employees, who by reason of their association with organized bodies have assumed executive responsibility for the conduct of those organizations and in all probability have had a larger and more intimate experience of the working of industry than persons who have taken no part in their respective organizations. I submit as a postulate, that the arbitration system depends substantially upon the organization of employers on the one side and employees on the other. That is to say, it cannot operate efficiently unless there is some form of order in . respect of associations of employees and of employers. The definition of “association” in the act is much wider than the definition of “ registered organization. “ An organization is a body registered under the act, and, curiously enough, the Trades Hall Council of Melbourne is not an organization ; it is an association. It exists to promote the interests of employees. The Chamber of Manufactures - to take an illustration from the opposite side of industry - is not an organization registered under the act, nor is it capable of being so registered. It is an association, and comes within” the definition specified in clause 4. The officers of the Chamber of Manufacturers, of the Employers Federation and of the Trade Councils of Australia, would not, if the amendment moved by the honorable member for Henty were carried, be eligible for appointment as conciliation commissioners. The amendment, which would restrict the choice of the Government in regard to the appointment of competent persons, brings out somewhat amazingly the extraordinary manner in which the honorable gentleman has changed his opinion now that he is in opposition. During the last parliament, the composition of the Tariff Board came under discussion. That board has semijudicial functions. It investigates important economic and industrial questions, and takes into consideration the ability of an industry to thrive under existing conditions. The functions of that board, although not identical with, closely resemble those of a body engaged in an investigation in respect of wages and conditions of labour. Last year, the honorable member for Henty said that it was absolutely desirable that the members of the Tariff Board should be persons who were not only associated with the conduct of business and industry, but also actually continuing to be ho engaged while functioning as members of the board.
– I did not say that that should be a condition of their appointment. I said that it should not be a disqualification.
– Perhaps the honorable member would not be too greatly shocked if I read what he did say. According to Hansard, of the 13th March of last year, page 1121, the honorable member said -
Vor the last eight years, the men who have occupied those positions have been drawn from the business community, and some of them have continued to be associated with a business. They have investigated a variety of cases, and there has never been any suggestion that their judgment was biased by any personal consideration.
It is an extraordinary mind that believes that a business man engaged in an investigation of an important public matter would not expose himself to the suggestion that his judgment would be biased by personal consideration, but that a trade union official would be in a different category altogether. The honorable member has cast a reflection upon an important group of persons, which has contributed as much to the industrial peace of this country as has that, section of the community to which the honorable member belongs. He continued -
I remind the committee, too, that thisprinciple has been adopted in connexionwith the appointment of various other boards and institutions.
Has it ever been suggested that those whobecome directors of the Commonwealth Bank, those who represent the Commonwealth on Amalgamated Wireless (Australasia) Limited, or those who are appointed to export control boards, should not have outside interests.
The honorable member cannot have it both ways. , The members of the Employers Federation who have been appointed to important executive positions are, in all probability, much more competent to function as conciliation commissioners than an ordinary member of the association, who takes no part in its working other than to pay his annual subscription. The same thing applies to the executive of the trade union organizations. There are 900,000 members of those organizations, and not many of them are actual officials.
– - Too many of them are officials.
– There are too many officials for the political comfort of the honorable member, but there are not too many to aid -in the industrial structure of the nation. There is, in the amendment moved by the honorable member for Henty, a suggestion that, after all, it is a fair provision in that it would apply to the officials of the employers’ organizations as well as to the officials of trade unions; but that is not so. Almost exclusively the advocate who represents the trade unions in the Arbitration Court is an officer of an organization. He may be the secretary or the president. At least he has an official status in the organization. But in nine cases out of ten those who represent the employers are not officers of the employers’ organization. They are retained servants. They have had long experience in the Federal Arbitration Court in handling industrial matters for their employers, but under tho amendment, would not be disqualified, because they are not officers of the organization.
– They would be included under the amendment.
– They are not officers of any organization coming within the definition in the act. Apart from the folly of denying to this nation the services of men of years of experience, possessing qualifications far superior to those of the ordinary person, we cannot overlook the absolute unfairness of the disqualification applying more comprehensively to the workers’ officials than it does to the employers’ officials.
– By reading the definition of “ association “ the honorable member will notice that all those officials would be disqualified under the amendment.
– The honorable member, in his eagerness to stress his point, has lost sight of the fact that the officials of the organizations of employers do not usually state the industrial requirements of their employers in the court. The men who do that work are salaried servants. But in the case of the workers’ organizations, while their advocates are undoubtedly paid for their services, at the same time they have executive status in the organization. That is clear evidence that the amendment, although reasonable in appearance, would in practice operate unfairly.
The clause under discussion is of great importance, because it represents one of the fundamental differences between the bill and the present act. The present act gives an impetus to arbitration, and the law, in the form of the Arbitration Court, is the determining factor in regard to industrial conditions. The bill seeks to emphasize the paramount importance of conciliation. It endeavours to prevent disputes, and thus make unnecessary any arbitral settlement. There can be no doubt that the objections in Great Britain to compulsory arbitration, which were referred to by the honorable member for Warringah (Mr. Archdale Parkhill) a few moments ago, are attributable to the fear that too much law is bad for the regulation of industrial matters and the prevention of industrial disputes’. The Government has come to the recognition of that truth. While we feel that it would be definitely wrong and a retrogressive step in Australia to scrap arbitration as a principle and as a final instrument for the settlement of what conciliation cannot itself settle, we yet believe that the time has arrived when there should be some effort made to promote concord between the parties at a conference at which there will be no lukewarmness on the part of the presiding officer, and less obligation to approach the Federal Arbitration Court. I could not understand the contention of the honorable member for Perth (Mr. Nairn) that the conciliation commissioners will simply put a premium upon circumlocution in that there will always be appeals to the court. The answer to that is contained in section 31 of the memorandum explaining the bill. At present the act provides that no award or order of the court shall be challenged, appealed against, reviewed, and so on. What the bill proposes is to amend the act so that a decision of the conciliation commissioner will be no more reviewable than an award or order of the court. The bill provides -
No awardor order of the court or a conciliation commissioner shall be challenged, appealed against, reviewed, quashed, or called in question, or be subject to prohibition mandamus or injunction, in any other court on any account whatever.
The honorable member for Warringah objects to what he calls the arbitral powers of the conciliation commissioners. Apparently, according to that honorable gentleman, it is quite wrong for the conciliation commissioners to have this arbitral authority vested in them. I may remind honorable members opposite that for more than 30 years the Victorian Wages Board system has operated upon the broad system of the chairman exercising a concurrent power. He is primarily the agent in the promotion of conciliation as between employer and employee, and he settles as far as possible any differences as to rates of pay or hours and conditions of work. When he has exhausted the full capability of the conferenceto arrange a settlement on points in dispute, he then, after having heard the arguments of representatives of both parties, arrives at what he believes to be a fair solution of the trouble.
– In those cases the chairman was appointed by the board, thus showing that he possessed the confidence of both parties.
– Frequently the board failed to agree on the chairman, with the result that the Governor in Council had to exercise the power conferred upon him, and appoint a chairman.
– That has been the exception.
– That is not so, though I wish it were. In any event, the act contemplates the exercise by the Crown of the right to appoint chairmen.
– And even members “of the board.
– That is so.
– This has nothing to do with the subject-matter of the clause.
– I have mentioned it because honorable members opposite seem to be very much opposed to the functions, of both conciliation and arbitration being exercised by the commissioners it is proposed to appoint. They contend that that is a wrong practice, although it has been followed for very many years in Victoria. The overwhelming testimony of those who have any knowledge of its working has been that it is an admirable practice.
Honorable members opposite seem to fear that persons will be appointed as conciliation commissioners who will bring our whole system of industrial control into disrepute ; but they have relied upon happenings in Queensland and NewSouth Wales to justify their apprehension, which is not logical. After all, the Government will have to carry the responsibility for the appointments that it makes. I have yet to learn that the great majority of persons appointed to our arbitration tribunals have not very speedily lived down any suspicion that might have been entertained that their appointments were not bona fide. It will be remembered that the last Government appointed to the Arbitration Court Bench a gentleman who was a member of another place, and had definitely committed himself to one side in politics. In addition to that, he was, just prior to his elevation to the Bench, the chairman of the Associated Employers Federations of Australia. This appointment caused a great political outcry; but the Government of the day justified it by saying that the person appointed was the most qualified that could be secured. But some of those same gentlemen now desire to make association with employers’ or employees’ organizations a disqualification for appointment as conciliation commissioners. The amendment, as a matter of fact, is equivalent to a motion of want of confidence in themselves. Although they were responsible, in a measure, for the appointment of a gentleman, who was the principal officer of an employers’ organization, they now say that this procedure was wrong, and should be prohibited by statute. I wish to say with perfect frankness that the gentleman who was appointed to the Bench on that occasion has justified his appointment in every respect, and has won the full confidence of those who have had dealings with him. I am not afraid of appointees to these positions because they may have had executive experience in organizations of employers or employees; on the contrary, I believe that such persons are more likely to give us efficient service than amateurs. A thorough training and experience in the management of our’ industrial affairs should be a qualification for appointment, as a conciliation commissioner.
.- Persons unacquainted with the provisions of the Arbitration Act and this bill might think that the honorable member for Fremantle (Mr. Curtin) has made a most persuasive and convincing speech. I have heard with much interest the . honorable gentleman’s statement that certain provisions in this bill will, if agreed to, extend and develop the power of conciliation under the present act; but I shall show the committee that there is no foundation whatever for the belief that anything in the bill will in any degree or particular extend those powers. At present our Arbitration Court judges may exercise powers of arbitration and conciliation ; and those powers will not be altered if this bill is passed. Under section 34 of the act, conciliation committees may be appointed, and that provision will not be altered by anything in this bill. The act also makes provision for the appointment of commissioners with conciliation powers only.
– With limited powers of conciliation.
– No; with full powers of conciliation. This power is expressly described in sections 16 and 16a, and it will remain exactly the same after this bill is passed. A conciliation commissioner was appointed under the present act with full powers of conciliation. If this bill is passed, and additional conciliation commissioners are appointed, the Governor-General in Council will determine whether they shall exercise full or limited conciliation powers. Nothing in this bill will alter that; the conciliation powers of judges will remain the same after the bill is passed, and so will the conciliation power of the conciliation committees, and of the conciliation commissioners. What the bill seeks to do is to clothe the conciliation commissioners with power to act as arbitrators. It does not seek to extend the conciliation power, but to add to it the power to arbitrate. Honorable members will find in the bill a number of provisions to add to certain sections of the act the words “ or conciliation commissioner “ after the words “ the court “. The object of the bill, therefore, is not to increase the conciliation power of the commissioners, but to add to it the power to arbitrate. Nothing in the bill will alter the present procedure under the act. The statement that one of the objects of the measure is to extend the conciliation power of arbitration tribunals or organizations - I avoid using the word “ court “ - is without any foundation whatever.
.- The Leader of the Opposition has explained the position in regard to conciliation very clearly. The bill does nothing to increase the present power of conciliation. I propose to show honorable members the futility of the court as a means of settling industrial disputes. In 1924, when we had 500 disputes, only 12, or about 2^ per cent., of them were settled by either the conciliation or arbitration machinery of the court, and 264, or over 50 per cent., were settled by direct negotiations between the two parties. In 1925, when we had 491 disputes, only 13, or approximately 3 per cent, were settled by the machinery of the court, arid 209 were settled by direct negotiations. In 1926, when we had 356 disputes, 13, or roughly 4 per cent, were settled by the machinery of the court, and 166, or nearly 50 per cent., were settled by direct negotiations. In 1927, when we had 435 disputes, 19, or about 4 per cent., were settled by the machinery of the court, and 229, or well over 50 per cent., by direct negotiation.
– How many of those were federal disputes?
– Those particulars are not set out in the statement before me. Some of the disputes were dealt with under State industrial acts, and some were settled in other ways. The figures that I have given are official, and have been published in various newspapers. I have just quoted them from the Sydney Morning Herald. In recent years no important dispute has been settled under the arbitration or conciliation power of the court. The disturbances in. the coal and timber industries and the shipping strike were not brought to an end by the court; it had to stand impotently aside. The powers given by the bill to the conciliation commissioners are altogether too wide. If the object is to produce goodwill in industry, why are the commissioners given such enormous powers? The idea is that disputes shall be settled, not in a legal atmosphere, but at a sort of roundtable conference. The Full Arbitration Court is, under the act, the only body authorized to increase the number of hours worked in any. industry. If it awards a 48-hours week, one conciliation commissioner can, under this bill, alter the award by providing for a 44-hours week. Apparently one conciliation commissioner may exercise greater powers than a court composed of three judges, and there is no appeal whatever against his decision.
– There is such an appeal; at least the bill states that there is. Look at clause 26.
– The bill provides that application for a variation or alteration of an award may be heard before a single commissioner, who may vary an award made by the Full Arbitration Court. Under clause 23, “no award or order of the court or a conciliation commissioner shall be challenged, appealed against, reviewed, quashed, or called in question, or be subject to prohibition, mandamus or injunction, in any other court, on any account whatever.”
– The court can set aside its own award or the award of a commissioner. Therefore, the court has the final word.
– I do not deny that; hut I claim that no single commissioner should have the enormous powers conferred by this bill, particularly as his tenure of office is not definitely stated. He could be appointed specially to hear a particular case; in other words, he could 1)0 appointed to give a certain verdict. I do not say that that would be clone, but it would be possible, under the bill, for a distinctly biased person to be appointed for a particular purpose.
– That would not be conciliation.
– I do not expect conciliation to result from this measure. The only, clause to which I would agree would be one providing for the repeal of the entire act. The judges of the court are appointed for life, and they are able to give independent verdicts, but if a conciliation commissioner gave a decision not in accordance with the wishes of the Government of the day, he would be afraid of falling into disfavour.
– Did that happen under the Industrial Peace Act?
– That legislation did not do much good. The recent dispute in the coal industry showed what a rank failure it was. Apparently there is not a sufficient number of members who are opposed to the federal arbitration system to do away with this futile and costly appurtenance known as the Arbitration Court. I oppose both the amendment of the honorable member for Henty and the proposal of the Ministry.
.- I heartily agree with the provisions of the clause before the committee, and, personally, I should like the clause to go even further. When the first arbitration bill was introduced, I voted against the third reading because it allowed judges and lawyers to be associated with the court. I have every respect for those gentlemen iu their proper places, but they should not take part in arbitration proceedings. The appointment of conciliation commissioners provides for a system of arbitration which is nearer my ideal than having disputes settled by a judiciary. What is required is an arbitration office or bureau that will bring the parties together. If they cannot settle their dispute within a given timeit should be referred to a conciliation commissioner, assisted by assessors representing both sides, and the decision of that tribunal should be registered and binding. Listening to members of the Opposition one would think that arbitration had operated very successfully when it was in the hands of a judge. Some of the gentlemen who presided in the Arbitration Court were able to come down to earth and do the right thing, but many of them gave biased judgments in some of the big industrial disputes. Members of the Opposition are afraid that the present Government might appoint as conciliation commissioners persons biased in favour of trade unions. Having regard’ to what has occurred during the last few years, including the appointment to the Bench of the President of the Employers* Federation, such a charge comes with bad grace from the party that was responsible for those occurrences. Although the bill does not go as far as I would like it to go it does provide for more conciliation through conferences round the table under the presidency of an independent chairman.
– Why give to the commissioners such wide powers?
– Why not? In the coal industry the best results were achieved by conferences in which the umpire was a man with a practical knowledge of the industry. The only marked failure was when a judge gave a decision that practically ruined the shareholders and the miners. I applied for a rehearing of the case by, a practical man, and he reversed the judge’s decision. The greatest good will be achieved by a system of conciliation and arbitration that isfree from the “ entangling legalisms “ of which the Prime Minister spoke.
– That we shall never advance very far with industrial legislation until the Constitution is amended to give greater power to this Parliament becomes increasingly apparent. But for the time being we must deal with the situation as it is. Attempts have been made by honorable members of the Opposition during this discussion to show that the arbitration system is a failure, and that the true remedy for industrial troubles is a process which they call conciliation, and of which they speak as if they had only recently discovered it. But it is quite old. The Sermon on the Mount prescribes the golden rule, but the criminal code and other cumbrous and complex masses of law are needed to apply its code to society. Similarly, the ideal of conciliation is not sufficient of itself, unsupported by the strong arm of the law. The march of civilization is everywhere marked by the expanding influence of the law. Some of us recollect the days before the advent of compulsory arbitration when we relied upon conciliation. One would gather from the remarks of some honorable members that that was the golden age. The truth is that the system of arbitration originated in the abject, deplorable, and terrible failure of conciliation unsupported by law, as exemplified by the great maritime strike in 1890. There can be only two parties in this committee on the great basic principle involved in the bill - those who are for arbitration and those who are for direct action. I say to my friends of the Opposition who are ‘ against arbitration, “Go and join Jock Garden and his friends. I am for arbitration.” The Leader of the Opposition has said that the bill does not extend the sphere of conciliation. That is true; but it provides machinery to make conciliation effective. It is tindeniable that the extension of conciliation which he enacted in 1928 is virgin; no one has gone near it. Why? Because it; lacked compelling power or inducement. The honorable member for Richmond (Mr. R. Green) has spoken of the number of disputes that have been, settled by conciliation. Does not the honorable member realize that industrial unrest is the greatest problem that confronts modern society, that everywhere people are groping for remedies, . and that the trouble is due to a clash of forces whose interests can never be completely reconciled. The conflict between the seller of labour and the buyer is inevitable. When the bone of contention is small the parties can reach a settlement at a round table conference; but when the issue goes to the very root of industrial relationships they cannot, and the law must step in. Has the community no rights? How many times have I sat round a table with employers and employees and come to a decision to pass the burden on to the community. Invariably the decision of the round table conference is to “pass the buck,” as the Americans say. The honorable member for Warringah (Mr. Archdale Parkhill) has warned the committee that the time has passed when we can “pass the buck.”
– The right honorable member’s Industrial Peace Act “passed the buck” on to the general public.
– The honorable member is quite incapable of understanding this subject, or, if he understands it, he is incapable of interpreting it. He has been reared in an environment which has made him totally ignorant of the world of affairs. I am for arbitration, and I desire to make this measure workable. Before we can get a really effective arbitration system the Constitution must be amended, but we must do the best we can with this stop-gap measure. I cannot support the amendment moved by the honorable member for Henty (Mr. Gullett). It is a slight to men who are, prima facie, at least as well, if not better, qualified as anybody else to act as industrial commissioners. For the wartime shipbuilding tribunal, which worked effectively for five years without dispute, notwithstanding the operation of piece-work and the dilution of labour, I selected Mr. Connington, a gentleman who had been associated with me as a union official for twenty years, and the employees selected Mr. W. J. Duggan, another union official. That tribunal was effective for five years, because it dealt with every dispute on its merits and while it was yet in the making. It was unhampered by legal machinery and procedure or red tape. The members understood the technique of the industry, because they always had as an associate a representative of the particular branch of the industry which was under consideration. That is the most effective system. Unfortunately, this bill does not go so far. Members of the Opposition complain that the industrial commissioners will have arbitral power. I pointed out, when speaking to the motion for the second reading, that conciliation proceeds by two stages. In the first the chairman is a conciliator, and if he cannot get the parties to agree he, or somebody else in the court, arbitrates on the dispute. The sensible thing would be to let the man who has heard the arguments and has endeavoured to bring about conciliation, settle the dispute. But the question with which I am most seriously concerned is, what will be the effect of giving the commissioner the power of a court, and at the same time prescribing that, in regard to the basic wage and standard hours, variation shall be made only by a majority of the judges of the full court? Who is to decide the basic wage and standard hours, the full court or a conciliation commissioner? Section 18a sub-section 4 as it is proposed to amend it, reads -
Notwithstanding anything contained in this act, the court shall not have jurisdiction - (I.) Either to make an award -
increasing the standard hours of work in any industry; or
reducing the basic wage or altering the principles on which it is computed…..
This Parliament has no power to give such a direction, because the principles upon which a basic wage is computed are within judicial discretion. If we had power to make an industrial law we could do that, but we. have not such power. We can direct the court to fix a basic wage, but we cannot say how much that wage shall be. The great point is that we must have stability. We need a basic wage that is fixed and definite. Nothing is more calculated to produce industrial unrest than uncertainty in regard to the basic wage. So long as the base of the industrial pyramid is firm, we have some prospect of per manency. But if the basic wage is to be varied from time to time, there is no chance of industry running smoothly. Therefore, I suggest that the clause should be amended so as to ensure that a commissioner shall not be able to make an award inconsistent with the basic wage and standard hours prescribed by the court. The function of the conciliation commissioners would then be to make awards super-imposing upon the basic wage rates of pay for skill and other considerations.
This ought to be a non-party measure, and I am convinced that, for the most part, it is being discussed in a non-party manner. When divergent views are expressed they represent, I believe, honest differences of opinion. I commend the Attorney-General for postponing the clause previously objected to, but I suggest to him that the committee cannot be expected to deal fairly with the clause now under consideration unless and until the previous clause has been presented to us in its amended form, so that we may know exactly what are to be the powers of the court. In my opinion, the power to determine the basic wage and standard hours should be vested in the court, and in the court alone. Throughout this bill the words “ or a conciliation commissioner “ occur again and again. It would, I believe, be far better if the functions of the conciliation commissioners were set forth clearly in one clause.
.- Honorable members opposite have objected to the proposal to give the commissioners to be appointed under this act the functions of conciliators and arbitrators. I submit that there is nothing novel in such a proposal. The very title of the major tribunal is “ a court of conciliation and arbitration.” The court has from its inception been both a court of conciliation and arbitration. The person to be appointed will act first as a conciliator and, if he fails to arrive at a settlement by process of conciliation, his arbitral powers will be called into use, and he will be able to make an award which will be binding on the parties to the dispute.
It has been contended that the qualifications of the person to be appointed are not clearly defined in the bil), and that the Government will possibly make unworthy appointments. I remind honorable members that the Industrial Peace Act does not prescribe definitely the qualifications of the chairman of the tribunal to be created by that act. It does not provide for any definite tenure of office, but it cannot be said that past governments have abused the power conferred on them. Honorable members opposite have said that the conciliation commissioners are to be vested with extraordinary powers. The powers defined in the bill are those which should reside in a commissioner if he is to carry out the ordinary functions of conciliation and arbitration. It is not to be assumed that an appointee will make havoc, or abuse the powers conferred on him. His powers are to be held in reserve, and used as occasion requires.
;- I move -
That the following new paragraph be inserted before paragraph 6: - ” (ba) by inserting in that sub-section after the words ‘ this act ‘ the words ‘such powers to be exercised under the direction of the Chief Judge’”.
Sub-section 2 of section 18o would then read -
A conciliation commissioner shall have the powers of a judge under section 16 and 10a, such powers to be exercised under the direction of the Chief Judge.
The object of the amendment is to preserve the practice which obtained during the time Mr. A. M. Stewart acted so successfully as conciliation commissioner. When his appointment was made it was provided that he should exercise his powers as conciliation commissioner under the direction of the Chief Judge. The reason for including that qualification is obvious to any one who has had experience of the working of the Arbitration Court. All the judges are conciliators as well as arbitrators, and it was important that the conciliation commissioner should operate in that capacity only in matters in which it was thought desirable that he should act instead of a judge. Accordingly he worked, and very successfully, in the spheres that were assigned to him by the Chief Judge. Honorable members will see that if a conciliation commissioner - of which there may be several if the bill goes through - were to have full liberty and power to intervene in any dispute, even though that dispute might actually be before some other conciliator or a judge, confusion would be likely to arise. The amendment will assist the smooth working of the court, and I hope that the Government will accept it.
-I ask honorable members to confine their remarks to the amendment. There will be opportunity later for them to discuss the clause itself.
– I see a great danger in the amendment. The Government proposes under the bill to appoint, not one man, but several men in the different States, to carry out conciliation work. There are judges whose time will not be fully occupied, and it is quite within the bounds of possibility that the Chief Judge would direct that they conduct the cases, and would not send any case to a conciliation commissioner.
– I should not think there was any ground for that assumption. The services of the late Mr. Stewart were fully utilized. There must be some method to determine what each commissioner shall do.
– If I had the right to direct the operation of this- act, and I was opposed to the appointment of laymen to undertake this work, for the preservation of my profession, I would hand it to judges. In that case, the whole of the machinery of this legislation would remain idle. Therefore, it should not be within the power of the Chief Judge to direct who shall do the work. If he should desire that only judges should deal with these cases, he would not send them on to conciliation commissioners, and thus would completely nullify the act. I would rather see this power in the hands of the SolicitorGeneral or the Attorney-General.
House adjourned at 10.21 p.m.
Cite as: Australia, House of Representatives, Debates, 2 July 1930, viewed 22 October 2017, <http://historichansard.net/hofreps/1930/19300702_reps_12_125/>.